A building owner wants to convert from office space to residential.  An architect is hired.  Someone forgets to determine whether air rights remain with the building or have previously been sold.  Problem!

140 W. 57th St. Bldg., LLC v Falconer  2019 NY Slip Op  2768(U)  September 18, 2019 Supreme Court, New York County Docket Number: 155934/2019 Judge: Frank P. Nervo discusses the various elements and standards.

“Defendants contend that documentary evidence establishes their defense, as a matter of law, to the instant suit. Dismissal under CPLR § 3211(a)(1) is “warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter oflaw” (Leon v. Martinez, 84 NY2d 83 [1994]). “The evidence submitted in support of such motion must be ‘documentary’ or the motion must be
denied” (Cives Corp. v. George A. Fuller Co., Inc., 97 AD3d 713 [2d Dept 2012]). Documentary evidence is unambiguous, authentic, and undeniable; however, affidavits, deposition testimony, and letters are not considered documentary evidence for the purpose of motions to dismiss (Granada Condominium III Assn. v. Palomino, 78 AD3d 996, 997 [2d Dept 2010]; see also GEM Holdco, LLC v. Changing World Technologies, L.P., 127 AD3d 598 [1st Dept 2015]). Here, defendants have submitted their own affidavits in support of their motion to dismiss. It is beyond cavil that these affidavits are improper on a CPLR § 3211 (a)(1) motion to dismiss, and the Court will not consider them for that purpose. To the extent that Hill’s affidavit annexes a proposal purportedly accepted ·by plaintiffs, the proposal is unsigned and does not establish a defense, as a matter of law, to plaintiffs’ claims of malpractice (Exhibit 1 to Hill Affidavit).”

“”It is a well-established principle that a simple breach of contract is not to be considered a tort unless a legal duty independent of the contract itself has been violated” (Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 NY2d 382, 389 [1987]; see also Gelita, LLC v. 133 Second Ave., LLC, 42 Misc 3d 1216[A] [Sup. Ct. NY County (Konreich, J.)] [2014]). Notwithstanding, “[p]rofessionals may be subject to tort liability for failure I to exercise reasonable care, irrespective of their contractual duties” (Sommer v. Fed. Signal Corp., 79 NY2d 540, 551 [1992]). -New York has long recognized tort liability for architectural malpractice (see e.g. 530 E 59 Corp. v. Unger, 43 NY2d 776 [1977]). ”

“Nor is a claim for professional malpractice duplicative of a breach of contract claim, as defendants contend. Professionals are subject to tort liability for their failure to exercise reasonable care, regardless of their contractual duties (Sommer, 79 NY2d at 551; see also 7 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 83 [1st Dept 1999]). Consequently, treating the allegations in the complaint as true and according plaintiffs the benefit of every favorable inference, the complaint validity asserts causes of action against defendants for breach of contract and professional malpractice sufficient to survive a motion to dismiss. “

Greenstreet of N.Y., Inc. v Davis  2018 NY Slip Op 07837 [166 AD3d 470]
November 15, 2018 Appellate Division, First Department illustrates how requirements for privity or near-privity are analyzed by the AD.

“Whether characterized as professional malpractice or negligent misrepresentation, the central issue is whether plaintiff has sufficiently alleged a relationship of privity with Gibson and Seinuk, or the functional equivalent of privity, to impose a duty owed on them in relation to plaintiff (see North Star Contr. Corp. v MTA Capital Constr. Co., 120 AD3d 1066, 1069 [1st Dept 2014]; Bullmore v Ernst & Young Cayman Is., 45 AD3d 461, 464 [1st Dept 2007]).

Here, the court properly determined that the amended complaint, as amplified by the affidavit from plaintiff’s president (see Wall St. Assoc. v Brodsky, 257 AD2d 526, 526-527 [1st Dept 1999]), has adequately asserted such a relationship. Plaintiff alleges that it had direct communications with Gibson and Seinuk during the course of the project; that defendants were aware that the drawings submitted were incorrect insofar as Gibson failed to reference structural insulated panels (SIPs); that Seinuk negligently advised plaintiff to back the SIPs with plywood out of concern for wind shear and failed to advise plaintiff that doing so would violate the New York City Building Code; that Gibson and Seinuk knew that plaintiff would rely on their drawings and representations; and that plaintiff reasonably relied on these representations (see Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 425 [1989]).”

Kasowitz, Benson, Torres LLP v Cabrera    2019 NY Slip Op 32738(U)  September 13, 2019 Supreme Court, New York County Docket Number: 157367/2018 Judge: O. Peter Sherwood is the story of a $ 33 Million real estate transaction gone bad.  Then, to make things worse for plaintiff, all the attorneys get the statute of limitations wrong.  In the end, nothing works.

“In or around October 2011, Cabrera and Matthew Karp  (“Karp”) of aribbean Propey Group ( “CPG”)began discussing a potential purchase of the property by CPG or a potential joint venture with the Barza parties. To facilitate the process. CPG and Barza entered into an agreement for the exchange of confidential information “solely for the purpose of determining ” whether or not to proceed with the Transaction” (‘”CPG Agreement”). Cabrera provident all documents sought by CPG.”

In September 2011 Cabrera retained attorney Stephen B. Meister (“Meister”) of Meister Seelig & Fein LLP (“Meister Seelig”) “to represent him and his affiliates in a dispute with the Caribbian Property  Group … and its affiliates relating to undeveloped acreage in Puerto Rico.” Meister contacted the COO and Principal of CPG. a personal acquaintantance. and confirmed that CPG had no future intention to pruchase the Property but would be willing to consider paying a
settlement sum. Meister expressed to Cabrera that Barza had viable: claimns and agreed to send CPG a demand letter detailing those claims. Meister never sent the demand letter he took no other action
to pursue the claims and failed  to take reasonable steps necessary to preserve the tort claims prior  to the exipiration of the applicable statute of limitations.

ln April 2015. the Barza parties began discussing its cliams with attorney Jennifer Recine of Kasowitz Benson Torres LLP ( “Kasowitz”). Between April 27. 2015 and June 15.  2015 sent a number of documents to Kasowitz as requested in order to evaluate the claims.”

“After Meister argued that the claims were time-barred, Kasowitz filed an amended complaint alleging that Kasowitz had not received Meister’s billing records until November 10, 2014 and that those records were necessary to determine whether meister did the work he was retained to do.”

” The Court ultimately dismissed the claims against Meister as time-barred.”

“The malpractice claim should be dismissed because, in light of Barza’s admission Barza cannot allege causation. The Barza defendants alleged in both the verified complaint in the Meister action, and in the counterclaims to this action that any claims that they would have had against CPG expired on February 14, 2014.  The Kasowitz firm was not retained until June 22, 2015”

Jean v Chinitz  2018 NY Slip Op 05521 [163 AD3d 497] July 26, 2018
Appellate Division, First Department holds that merely hiding one’s malpractice is not deceit.  Attorneys allowed three discovery demands to go unanswered and suffered dismissal.  There were not exactly forthright with the client.  However, some non-legal malpractice were dismissed.

“In its February 16, 2017 order, the motion court correctly dismissed the first cause of action in the original verified complaint to the extent that it alleged a violation of Judiciary Law § 487, because plaintiff failed to plead the essential elements of a cause of action under the statute, i.e., intentional deceit and damages proximately caused by the deceit (see Judiciary Law § 487; Doscher v Mannatt, Phelps & Phillips, LLP, 148 AD3d 523, 524 [1st Dept 2017]). Accordingly, the portion of the first cause of action in the original verified complaint that alleges a section 487 violation fails to state a cause of action under the statute (see CPLR 3211 [a] [7]). Additionally, plaintiff’s section 487 cause of action lacks the requisite particularity (see CPLR 3016 [b]; Facebook, Inc. v DLA Piper LLP [US], 134 AD3d 610, 615 [1st Dept 2015], lv denied 28 NY3d 903 [2016]).

By the same order, the motion court also correctly dismissed plaintiff’s separate cause of action for punitive damages as pleaded in the original verified complaint. A separate cause of action for punitive damages is not legally cognizable (see Steinberg v Monasch, 85 AD2d 403, 406 [1st Dept 1982]). Rather, punitive damages “are merely an element of the total claim for damages on . . . underlying causes of action,” and a separate cause of action based solely upon them must be dismissed (Greenview Trading Co. v Hershman & Leicher, 108 AD2d 468, 470 [1st Dept 1985]). In any event, the original verified complaint does not allege intentional and malicious treatment of plaintiff or wanton dishonesty suggestive of criminal indifference to civil obligations sufficient to support an award of punitive damages (see Johnson v Proskauer Rose LLP, 129 AD3d 59, 73 [1st Dept 2015]). Indeed, the pleading merely alleges that defendants were trying to conceal their negligence in having allowed plaintiff’s medical malpractice action to be dismissed for noncompliance with discovery orders.

By its July 17, 2017 order, the motion court also correctly dismissed plaintiff’s amended verified complaint, albeit not on the proper grounds. Contrary to the motion court’s determination, the amended verified complaint was not procedurally barred. Defendant’s answer was served and filed on March 7, 2017, and plaintiff’s amended verified complaint was filed on [*2]March 16, 2017, well within the 20-day period within which plaintiff could timely file an amended pleading without leave of court (see CPLR 3025 [a]). Furthermore, in an amended pleading, a plaintiff “may add any cause of action at all, related or not to what the original pleading contained” (see Patrick M. Connors, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3025:3 at 87, citing Mendoza v Mendoza, 4 Misc 2d 1060, 1061 [Sup Ct, NY County 1947], affd 273 App Div 877 [1st Dept 1948]). Thus, it is of no moment that the amended verified complaint included a section 487 cause of action, whereas defendant’s answer served and filed subsequent to the February 17 order dismissing the section 487 claim included no response to plaintiff’s section 487 allegations.

Plaintiff argues that the amended verified complaint added allegations of intentional deceit on the part of defendants, as manifested in the form of email communications from defendants to plaintiff falsely assuring him that his medical malpractice case was still active when, in fact, it had been dismissed due to defendants’ failure to comply with three discovery orders of the motion court. Plaintiff further alleges that defendants’ deceit injured him by depriving him of the opportunity to take steps to remedy or vacate the dismissal. Plaintiff’s theory presumes that the trial court justice presiding in the medical malpractice action would have vacated the dismissal and reinstated the action had plaintiff moved for such relief. Given the circumstances under which the medical malpractice action was dismissed, however, involving three separate discovery orders for provision of medical authorizations and physician reports, each of which was disregarded by plaintiff’s attorney, it is, at best, purely speculative that the medical malpractice court would have granted such relief. Thus, plaintiff’s claim of injury lacks sufficient support to sustain his claim that defendants’ false email communications were the proximate cause of any injury to him (see Pellegrino v File, 291 AD2d 60, 64 [1st Dept 2002], lv denied 98 NY2d 606 [2002] [dismissing legal malpractice claim where plaintiffs’ allegations did not, on their face, establish that but for their medical malpractice attorney’s conduct in failing to inform them of the dismissal of their medical malpractice action, they would not have sustained the actual ascertainable harm]).”

In a CPLR 3211(a)(1) motion, which is very popular in defense of legal malpractice claims, defendants will offer paper documents which they claim “utterly refute” the legal malpractice claim.  These motions are surprisingly (and disproportionately compared to other areas of tort law) effective.  However, all paper is not “documentary” as we see in First Choice Plumbing Corp. v Miller Law Offs., PLLC  2018 NY Slip Op 05825 [164 AD3d 756] August 22, 2018 Appellate Division, Second Department.

“A motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint on the ground that the action is barred by documentary evidence “may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; see Leon v Martinez, 84 NY2d 83, 88 [1994]). “In order for evidence to qualify as ‘documentary,’ it must be unambiguous, authentic, and undeniable” (Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996-997 [2010]; see Fontanetta v John Doe 1, 73 AD3d 78, 86 [2010]). “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” (Fontanetta v John Doe 1, 73 AD3d at 84-85 [internal quotation marks omitted]). “Conversely, letters, emails, and affidavits fail to meet the requirements for documentary evidence” (25-01 Newkirk Ave., LLC v Everest Natl. Ins. Co., 127 AD3d 850, 851 [2015]; see Phillips v Taco Bell Corp., 152 AD3d 806, 807 [2017]; Prott v Lewin & Baglio, LLP, 150 AD3d 908, 909 [2017]; Gawrych v Astoria Fed. Sav. & Loan, 148 AD3d 681, 682 [2017]).

Here, the emails and letters submitted in support of the defendant’s motion were not documentary evidence within the meaning of CPLR 3211 (a) (1). To the extent that the other evidence submitted was documentary, that evidence did not conclusively establish the absence of an attorney-client relationship between the plaintiffs and the defendant with respect to the liens and their extensions. Thus, the Supreme Court should not have granted that branch of the defendant’s motion which was to dismiss the complaint on this ground.”

Golub v Shalik, Morris & Co., LLP  2019 NY Slip Op 32589(U) September 3, 2019 Supreme Court, New York County Docket Number: 158055/2017
Judge: Barbara Jaffe is worth reading, simply for the long description of all the argument for/against malpractice, continuing representation, damages in a tax case, the application of future estate taxes and how a court reads this all.

The case is about a mistake in a trust set-up.  “Some time before August 2012, ARG’s estate lawyer, Arlene Harris at Arnold & Porter Kaye Scholer LLP (Kaye Scholer) advised ARG to form a Qualified Personal Residence Trust (QPRT, or trust). ARG retained that firm to set up the recommended trust with his son as remainder beneficiary. On August 12, 2012, the firm completed the work in creating the trust. (NYSCEF 85).
On August 16, 2012, ARG transferred to the trust a gift of a 50 percent interest in a property in Southampton, New York. As of August 27, 2012, the entire property was appraised at $9 million. (NYSCEF 86).

By email dated May 9, 2013, Harris sent copies of the deed to the property, the first and final pages of the trust agreement, and an appraisal of the property’s fair market value to Steven Frushtick, ARG’s accountant at defendant Wiener Frushtick & Straub (WPS), stating that “only 50% of the house” had been transferred to the trust. (NYSCEF 79). By email to Harris dated May 20, 2013, Frushtick advised of the need for a discounted appraisal, that without it, the nondiscounted appraisal would be used, and that his tax attorney had informed him that the Internal Revenue Service (IRS) does not countenance the use ofresidential discounts for QPRTs.

In reply, Harris stated that it was ARG’ s decision as to whether he would pay for anotherappraisal to support a discount. ARG asked her how much a new appraisal would cost. Harris responded by asking ifhe wanted her to call about the cost. (NYSCEF 99).”

“To prevail on a claim based on professional malpractice, the plaintiff must establish that but for the alleged malpractice, the plaintiff “would not have sustained some actual ascertainable damages.” (Herbert H Post & Co. v Sidney Bitterman, Inc., 219 AD2d 214, 224 [1st Dept 1996],
quoting Franklin v Winard, 199 AD2d 220, 221 [1st Dept 1993]).

Speculative assertions that the defendant’s conduct caused the plaintiff’s damages do not suffice. (See e.g., Leff v Fulbright & aworski, L.L.P., 78 AD3d 531, 533 [1st Dept 2010], lv denied 17 NY3d 705 [2011] [damages in malpractice case “grossly speculative” where plaintiff could not establish what would have occurred but for defendants’ conduct]; Phillips-Smith Specialty Retail Grp. IL L.P. v Parker Chapin Flattau & Klimpl, LLP, 265 AD2d 208, 210 [1st Dept 1999], lv denied 94 NY2d 759 [2000] [allegations reliant on “hypothetical course of events on which any determination of damages would have to be based, involving the nature and timing of acts by plaintiffs themselves” too speculative to establish malpractice claim]; Sherwood Grp., Inc. v Dornbush, Mensch, Mandelstam & Silverman, 191AD2d292, 294 [1st Dept 1993] [allegations of damages “couched in terms of gross speculations on future events” insufficient]). “

In this case the estates loses a claim for fees because of bad service of process. Estate of Norman Perlman v Kelley  2019 NY Slip Op 06475 Decided on September 11, 2019 Appellate Division, Second Department goes on to catalog how and why the service was bad.

“The plaintiff commenced this action on December 31, 2015, by filing a summons and complaint. On January 21, 2016, the plaintiff filed an affidavit of service with the Kings County Clerk’s Office, which stated that on January 14, 2016, service was effectuated upon the defendant pursuant to CPLR 308(2) by delivery of the summons and complaint to a paralegal who worked at the defendant’s law office. The affidavit of service did not indicate that the summons and complaint had been mailed to the defendant. On or about March 17, 2016, the plaintiff moved for leave to enter a default judgment against the defendant. The affirmation of service attached to the motion papers stated, inter alia, that the plaintiff had mailed a “second copy” of the summons and complaint to the defendant on February 13, 2016. However, there is no evidence in the record that the plaintiff ever filed an affidavit of service with the Kings County Clerk’s Office indicating that the summons [*2]and complaint had been mailed to the defendant. The defendant opposed the plaintiff’s motion, contending, inter alia, that the motion was premature, and cross-moved pursuant to CPLR 3211(a) to dismiss the complaint. In an order dated February 22, 2017, the Supreme Court, inter alia, granted the defendant’s cross motion to dismiss the complaint pursuant to CPLR 3211(a)(8) for lack of personal jurisdiction. The plaintiff thereafter moved, inter alia, for leave to reargue his opposition to the defendant’s cross motion. In an order dated June 15, 2017, the court, inter alia, granted reargument and, upon reargument, adhered to its original determination granting the defendant’s cross motion. The plaintiff appeals.

CPLR 308(2) provides, in pertinent part, that personal service may be made upon a defendant by delivery of the summons upon “a person of suitable age and discretion at the actual place of business . . . of the person to be served and by . . . mailing the summons by first class mail to the person to be served at his or her actual place of business . . . , such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing whichever is effected later; service shall be complete ten days after such filing.”

“Jurisdiction is not acquired pursuant to CPLR 308(2) unless both the delivery and mailing requirements have been strictly complied with'” (Josephs v AACT Fast Collections Services., Inc., 155 AD3d 1010, 1012, quoting Gray-Joseph v Shuhai Liu, 90 AD3d 988, 989; accord Munoz v Reyes, 40 AD3d 1059, 1059; Ludmer v Hasan, 33 AD3d 594, 594). “CPLR 308(2) requires strict compliance and the plaintiff has the burden of proving, by a preponderance of the credible evidence, that service was properly made” (Samuel v Brooklyn Hosp. Ctr., 88 AD3d 979, 980).

Here, the mailing of the summons to the defendant occurred more than 20 days after the delivery upon a person of suitable age and discretion. Additionally, the plaintiff never filed an affidavit of service with the Kings County Clerk’s Office indicating that the mailing had been effectuated. Accordingly, the service of process upon the defendant did not comply with the strict requirements of CPLR 308(2), and the time for the defendant to serve an answer never began to run (see CPLR 3012).

Contrary to the plaintiff’s contention, the delay in mailing was not a mere “technical infirmity” that may be overlooked by the court pursuant to CPLR 2001 (Ruffin v Lion Corp., 15 NY3d 578, 582 [internal quotation marks omitted]). “In deciding whether a defect in service is merely technical, courts must be guided by the principle of notice to the defendant—notice that must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections” (id. at 582 [internal quotation marks omitted]). As the Court of Appeals noted in Ruffin, a defendant’s “actual receipt of the summons and complaint is not dispositive of the efficacy of service” (id. at 583). “For example, simply mailing the documents to defendant or e-mailing them to defendant’s Web address would present more than a technical infirmity, even if defendant actually receives the documents, inasmuch as these methods in general introduce greater possibility of failed delivery” (id.).

A mailing sent within the wrong time frame, like a mailing sent by the wrong method (see id.; Brown v State of New York, 114 AD3d 632), increases the likelihood that a party will not receive proper notice of a legal proceeding. The first 20-day window set forth in CPLR 308(2) serves an important function. If the delivery and mailing required by that statute are not made within a short time of one another, there is a greater likelihood that one or both sets of pleadings will be mislaid, or, at the very least, that confusion will arise as to how much time the defendant has to respond—both of which appear to have occurred here. Further, the requirement that an affidavit of service be filed within 20 days of the delivery or mailing, whichever is effected later, also serves an important function. Timely filing of the affidavit of service is designed to give notice as to the plaintiff’s claim of service and permit the defendant to calculate the time to answer. Where the affidavit of service claims that delivery but not mailing occurred within the 20-day period, yet the plaintiff intends to later claim that a timely mailing did occur, additional confusion is created, a defendant may be prejudiced by reliance upon the publicly filed affidavit which only partially [*3]disclosed the plaintiff’s claim of service, and such prejudice may preclude the prospect that the failure to file the affidavit could be cured (cf. Khan v Hernandez, 122 AD3d 802, 803).

We therefore agree with the Supreme Court’s determination that the plaintiff’s failure to comply with the delivery and mailing requirements of CPLR 308(2) in the time prescribed by the statute was a jurisdictional defect, and that the plaintiff’s late mailing of the summons and complaint after the statutory time period did not cure the defect in service. The plaintiff’s remaining contentions are without merit. Accordingly, we agree with the court’s determination, upon reargument, to adhere to its prior determination granting the defendant’s cross motion to dismiss the complaint for lack of personal jurisdiction.”

In an ironic example of mistakes, Plaintiff’s legal malpractice case against an individual attorney is dismissed not simply for the failure to file an affidavit of service but for the failure to ask the court to issue an order permitting late service of the affidavit.

Zheleznyak v Gordon & Gordon, P.C. 2019 NY Slip Op 06536 Decided on September 11, 2019 Appellate Division, Second Department explains how it should be done.

“Following the commencement of this action on June 21, 2017, the defendant Leslie Nizin moved, inter alia, pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him on the ground of lack of personal jurisdiction, based upon the alleged failure by the plaintiff to serve him within 120 days after the filing of the summons and complaint (see CPLR 306-b). The plaintiff had failed to file with the clerk of the court an affidavit of service of the summons and complaint as required by CPLR 308(4). However, in his opposition to Nizin’s motion, the plaintiff submitted a copy of an affidavit of service. The Supreme Court granted Nizin’s motion, and the plaintiff appeals.

While the failure to timely file an affidavit of service with the clerk of the court as required by CPLR 308(4) may, in the absence of prejudice, be corrected by court order pursuant to CPLR 2004 (see Khan v Hernandez, 122 AD3d 802, 803), in this case, the plaintiff failed to seek such relief, and the Supreme Court declined to extend this time sua sponte (see Deb v Hayut, 171 AD3d 862, 863). Accordingly, we agree with the court’s determination to grant that branch of his motion which was pursuant to CPLR 3211(a)(8) to dismiss the complaint insofar as asserted against him on the ground of lack of personal jurisdiction (see Deb v Hayut, 171 AD3d at 863; see also Estate of Norman v Perlman v Kelley, ___ AD3d ___ [Appellate Division Docket No. 2017-03966; decided herewith]).”

Ripa v Petrosyants  2019 NY Slip Op 32638(U) August 15, 2019 Supreme Court, Kings County Docket Number: 510658/17 restates the age old principle that one may not successfully sue an attorney unless there was an attorney-client relationship, or something very, very close to it.  This was a restaurant investment gone bad.  Judge Leon Ruchelsman  picks up:

“To succeed on a claim for.legal malpractice it must be shown that the attorney failed to act with the “ordinary reasonable skill and knowledge commonly possessed by a member of the legal professional (Darby & Darby, P.C. v; VST International, Inc., 95 NY2d 308, 716 NYS2d 378 [2000]). As a preliminary matter, of course, there must be evidence of an attorney client: relationship (Wei Cheng Chang v. Pi, 288 AD2d 378, 733 NYS2d 471 [2d Dept., 2001]) . A client’s unilateral belief that an attorney client
relationship existed is insufficient to establish such relationship
even though a formal retainer agreement is not required (Terio v.
Spodek, 63 AD3d 719, 880 NYS2d 679 [2d Dept., 2015]). Thus, “to
prove an attorney-client relationship, there must be an explicit
undertaking “to perform a specific task” (Nelson v. Roth, 69 AD3d
912, 893 NYS2d 605 [2d Dept., 2010]).

The plaintiff has asserted an attorney client relationship existed but has failed to present any evidence supporting that contention. The plaintiff asserts that Ofshtein “billed several thousand dollars for legal services” (Affirmation in Opposition, 9). However, the plaintiff has not presented any evidence of any such bills that would conclusively substantiate the allegation contained in the complaint. Thus, ‘that allegation is conclusory
and, unsupported. Consequently, the plaintiff has failed to establish an attorney client relationship and consequently the motion to dismiss the malpractice claim is granted.”

One familiar trope in legal malpractice cases is the workers’ compensation – personal injury situation in which a plaintiff is injured on the job, but may have claims against non-employers as well as against the employer.  Schwenger v Weitz, Kleinick & Weitz, LLP 2019 NY Slip Op 2605(U) September 4, 2019 Supreme Court, New York County Docket Number: 159856/2018 Judge: Robert D. Kalish is a varient of that issue.  He was determined to be an employee.  However, there was overlap between his WC counsel, his personal injury counsel and his later appellate counsel.  After the appeal, who was the attorney and who let the WC case lapse?

“Based upon the instant motion papers, there appears to be no dispute that the underlying action was initially brought in Supreme Court, New York County, in 2003. From early on it apparently became clear that a significant issue in the underlying action concerned whether Plaintiff was an employee of NYU such that his exclusive remedy would be pursuant to the Workers’ Compensation Law (the “applicability issue”). According to Mittman Defendants, they were retained by Defendant Paul B. Weitz, Esq. and Defendant Weitz, Kleinick & Weitz, LLP (“Weitz Firm”) (collectively, “Weitz Defendants”), sometime in 2004, to litigate the applicability issue.

There is no dispute that between 2004 and 2011, Mittman Defendants made multiple appearances before the Workers’ Compensation Board to litigate the applicability issue. There also appears to be no dispute that on or about March 2013, the full panel of the Workers’ Compensation Board issued a decision (the “2013 Decision”) determining that there was an
employee-employer relationship between Plaintiff and NYU and, as such, Plaintiffs exclusive remedy was through the Workers’ Compensation Law. There also appears to be no dispute that shortly after the 2013 Decision, Mittman and Plaintiff communicated via e-mail, wherein Mittman expressed to Plaintiff that Plaintiffs only recourse was to take an appeal before the Appellate Division, Third Department; and Mittman further  communicated that he was “not in a position” to perfect such an appeal on Plaintiffs behalf. (See Mittman Aff. in Supp. if 14-20; Schwenger Aff. in Opp. iii! 13-20, Ex. F [March 2013 Email Exchange].) The parties further agree that Plaintiff filed a notice of appeal pro se before the Third Department and was eventually represented by separate counsel in said appeal. (Id.) ”

“On the instant motion, Mittman Defendants have established prima facie that the instant action against them is barred by the statute of limitations. The alleged malpractice by Mittman Defendants-purportedly mishandling the applicability issue before the Workers’ Compensation Board-happened no later than March 2013.

The Court finds that Plaintiffs argument that the statute of limitations was tolled, pursuant to the continuous representation doctrine, is unavailing. Here, there is no dispute that from March 2013 to present, Mittman Defendants were not representing Plaintiff with respect to
a specific legal matter. As such, that Plaintiff may have called Mittman Defendants in August 2016 or that Mittman Defendants may have arguably been listed as counsel of record before the Workers’ Compensation Board is insufficient to raise an issue of continuous representation.

Further, there is no dispute that Mittman Defendants communicated to  Plaintiff that they were not in a position to continue their  representation of Plaintiff in the appeal of the 2013 Decision before the Third Department and that Plaintiff found new counsel to represent him thereafter. As such, there was no reasonable basis for Plaintiff to conclude that Mittman Defendants were still actively involved in Plaintiffs claim.

As such, the complaint must be dismissed as against Mittman Defendants.”