Incarceration for not paying child support is unusual but certainly not unheard of.  This case illustrates the defense strategy of receding into the background and waiting while the controversy swirls around the other defendants.  In this case more than a year went by after a default and the defendant obtained dismissal. Rivera v Kerr  2019 NY Slip Op 33047(U)
October 11, 2019 Supreme Court, Suffolk County Docket Number: 17736/2015 Judge: Sanford Neil Berland is also notable for having 7 prior judges all recuse themselves.

“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 matimonial 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 willfully 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. ”

“On June 3, 20 13, defendant Sullivan. a partner in the Long Tuminello law firm, requested a Preliminary Conference in the plenary action. The application was granted, and on June 15, 2013. Sullivan sent an email to plaintiff advising him that a preliminary conference would be held in the plenary action in July 2013. Plaintiff sent a responding email in which he directed that Long Tuminello “‘hold off on doing any further work ..” and to … “put the case on hold” indicating that plaintiff was concerned about cost and was ‘”exploring other avenues:· On June
28, 20 l 3. plaintiff retained defendant Del Col to represent him in the plenary action and to file and prosecute a writ of habeas corpus regarding the contempt finding in Family Court. Del Col filed the writ. On .July 18, 20 13, Del Col appeared for the plaintiff at the preliminary conference held in the plenary action. On October 10, 2013, Kathryn Rivera filed a motion to dismiss the plenary action for failure to state a cause of action. Del Col did not interpose an answer to the motion, and in an order dated May 29, 2014, the court dismissed the plenary action, holding, inter alia that plaintiff was estopped from seeking to set aside the Settlement Agreement in question as he had. by order to show cause in September 20 12. sought both to enforce the agreement and to modify it.

Defendant served the sentence imposed upon him by the Family Court. On October 8, 2015. he commenced the current action by filing a Summons With Notice, and on November 18, 2015, he filed the Verified Complaint. Seven Suffolk County justices. including Justice Luft,
were randomly assigned to preside over plaintiffs action and recused themselves before the matter was assigned to the undersigned. ”

“Defendant pro se Robert Del Col. Esq. (“Del Col'”) is moving: to dismiss the complaint against him (seq. #005 ) as abandoned pursuant to CPLR 3215[c). Plaintiff commenced this action by filing a summons with notice dated October 8.2015. Del Col served a notice of
Appearance dated October 26. 2015 upon plaintiff” with a demand that a complaint be served upon his office. Plaintiff served a Verified Complaint dated November 18, 2015 on all defendants. Del Col never answered the complaint.

Plaintiff contends that his complaint against Del Col is meritorious and never abandoned. He asserts that the fact that he defended a motion interposed by the Sallah defendants which was later withdrawn  and served Del Col with opposing documents and judicial recusal orders related to plaintiff’s action constitutes evidence that he had not abandoned his claims against Del Col.  He offers as excuses for his delay in seeking a default judgment against Del Col that plaintiff had
filed for bankruptcy and was unsure until the discharge in September 2017 “whether the current law suit would be considered part of the bankruptcy estate, and that he was suffering from post-traumatic stress syndrome as a result of his incarceration as well as fear induced by a series of judicial recusals in this case that rendered him incapable of handling the stress or making an application to a Suffolk County judge for a default judgment against Del Col.

When a plaintiff fails to seek leave to enter a default judgment within one year after a default has occurred, the action is deemed abandoned (see CPLR 3215(c): Geraghty  v Elmhurst Hosp. Ctr. of N. Y. NYC Health & Hosps., Corp .. 305 AD2d 634. 759 NYS2d 888 [2d Dept 2003]). To avoid dismissal of the complaint as abandoned under such circumstances. a plaintiff must offer a reasonable excuse for the delay in moving for leave to enter a default judgment and demonstrate that the complaint is meritorious (Kay Waterproofing Corp. v Ray Realty Fulton Inc., 23 AD3d 624, 804 NYS2d 815 [1st Dept 2005]: HSBC Bank USA, Nat. Ass’n v Grella,”

Plaintift’s claims against Del Col essentially mirror those he has asserted against the other defendants and, for the same reasons those defendants are entitled to summary judgment, plaintiff’s claims against Del Col cannot be considered meritorious. Furthermore. plaintiff has
failed co explain why litigation with non-defaulting defendants excuses his failure timely to seek a default judgment against Del Col (see Private Capital Group, LLC v Hosseinipour. 170 AD3d 909, 911. 95 NYS3d 585 2nd Dept 2019).  Nor do plaintiffs concerns with respect to  his bankruptcy proceeding provide a reasonable excuse for that failure (see Pipinias v J. Sackaris & Sons, Inc .. supra). Finally. insofar as plaintiff was represented by counsel. his assertion that he could not tolerate the stress of making the application for a default judgment is not  reasonable. Accordingly. defendant prose Robert Del Col’s motion to dismiss the complaint as a gainst him pursuant to CPLR 321 S[ c] is granted. “

What is an attorney at a real estate closing required to do and when does a failure to do so bleed into legal malpractice?  Mah v 40-44 W. 120th St. Assoc., LLC,  2019 NY Slip Op 33071(U)  October 10, 2019 Supreme Court, New York County  Docket Number: 650927/2016  Judge: Robert R. Reed provides some answers.  Here, in a condo development gut renovation the purchasers were promised roof decks.  The City Department of Buildings ruled them illegal.

“In this action, plaintiffs seek damages against the sponsor, the sponsor’s exclusive listing agents, and the attorneys who represented plaintiffs in their purchases of apartments Penthouse A (PHA) and Penthouse D (PHD) in the Park Place Condominium in Manhattan. Plaintiffs Timothy Lloyd Mah and James M. Carter III purchased PHA around September 5, 2012, and plaintiff Crystal Cash purchased PHD around September 7, 2012. ”

“As plaintiffs note, the complaint alleges that Jassen did not exercise “the degree of care, skill, and diligence commonly possessed and exercised by ordinary members of the legal community in performing pre-contract and post-contract ‘due diligence’ and review of title”
(NYSCEF Doc. No. 181 [Resko Aff in Opp] if 14 [quoting complaint]). To prevail on summary judgment, Jassen must show that the activities she has described are consistent with legal standards. As Jassen has not produced evidence showing that “she exercised an ordinary [degree
of] skill and knowledge” for real estate lawyers in the community, she has not sustained her burden on this motion (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Bakcheva, 169 AD3d at 625).

In addition, Jassen contends, Mah and Carter have not shown that she had access to information which showed that the roof deck was illegal. As plaintiffs’ opposition indicates, however, Jassen bears the initial burden in the context of her motion (see NYSCEF Doc. No. 181 [Resko Aff in Opp] if 16] [citing, inter alia, Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). She states that she was not negligent in checking the Certificate of Occupancy (CO) for the building because until the roof deck was constructed, the document would not include it as a permissible use. Department of Building’s Guide to: Certificate of Occupancy, which Jassen annexes, states although a building must update a CO if it changes or expands the building’s use, a final CO is issued only “when the completed construction work matches the submitted plans” (NYSCEF Doc. No. 121 ). This does not vitiate Mah and Carter’s contention, however, as there is an issue of fact as to whether Jassen should have taken any further steps, especially as the roof deck was a particular area of concern for her clients (see, e.g., NYSCEF Doc. Nos. 115-119 [email chains]). Jassen’s statement that that she “diligently reviewed the transaction documents” and went over the documents with Mah (NYSCEF Doc. No. 104 [Jassen Aff in Support] iii! 16-17) may support her argument at trial but does not refute the argument of her former clients (cf Bakcheva, 169 AD3d at 625). Furthermore, Jassen’s statement that she explained that the CO “could not and did not reflect use of the roof deck” (NYSCEF Doc. No. 104 [Jassen Aff in Support]~ 43) merely raises an issue of fact in light of the affidavits of Mah and Carter, which state that Jassen provided no
such explanation (see NYSCEF Doc. No. 186 [Mah Aff in Opp]~~ 5, 8; NYSCEF Doc. No. 187 [Carter Aff in Opp]~~ 6, 8).

Jassen argues that Mah and Carter additionally cannot show proximate cause. However, Mah and Carter claim that, if Jassen had not been negligent, she would have learned of the problem with the use of the roof and they would not have purchased the apartment or undertook to renovate the roof (compare Stackpole v Cohen, Ehrlich & Frankel, LLP, 82 AD3d 609, 610 [1st Dept 2011] [after a nonjury trial, the court properly dismissed the claim because plaintiff did not show that
“but for defendant’s negligence, she would not have purchased the apartment”]). This creates an issue of fact and renders summary judgment improper. ”

How does a release work and what are its limits?  This is the question that Avnet, Inc. v Deloitte Consulting LLP  2019 NY Slip Op 33026(U)
October 11, 2019 Supreme Court, New York County Docket Number: 653146/2019 Judge: Jennifer G. Schecter answers in great detail.  The opinion comes with extensive and fascinating footnotes.  They are too extensive to reprint here, but well worth the read.

“In 2008, the parties entered into a Master Services Agreement govemmg
consulting work performed by Deloitte for Avnet (Dkt. 29 [the MSA]). For each consulting matter, the parties would enter into a separate Work Order (see id. at 2-3). The MSA provides that all litigation “based on or arising out of’ it must be brought in New York and that the MSA “and each Work Order, and all matters relating to [the MSA ]” are governed by New York law (id. at 15 [emphasis added]).

Beginning m 2013, the parties executed Work Orders governmg Deloitte’s
development and implementation of a software platfonn known as “Project Evolve” (see Dkt. 38). That system went live on April 4, 2016. It was riddled with problems. Avnet claims that Deloitte was at fault. However, rather than litigate, on September 7, 2016, the ‘parties executed a settlement agreement in which Avnet released all of its claims against Deloitte – both known and unknown – relating to Project Evolve (Dkt. 28 [the Settlement Agreement]). The Settlement Agreement is governed by New York law (id. at 4).”

“Shortly after executing the Settlement Agreement, the parties executed a Work Order governing Deloitte’s attempts to fix the system. In March 2017, Avnet terminated Deloitte and decided it would abandon Project Evolve as soon as an alternative system could be implemented.
On May 28, 2019, Avnet commenced this action against Deloitte. In its
complaint, it asserts 13 causes of action. The first six concern Deloitte’s work on Project Evolve through August 1, 2016: 1 (1) fraud; (2) constructive fraud; (3) fraudulent inducement; ( 4) breach of contract and breach of the implied covenant of good faith and fair dealing; ( 5) professional negligence; and ( 6) ‘violation of New York General Business Law (GBL) § 349. The remaining seven causes of action, number~d here as in the complaint, concern Deloitte’s conduct after August 1, 2016: (7) fraud; (8) constructive fraud; (9) fraudulent inducement . of the Settle~nent Agreement and post-Settlement
consulting work; (10) breach of contract (the MSA and Work Orders) and breach of the implied covenant of ‘good faith and fair dealing; (11) professional negligence; (12) violation of GBL § 349; and (13) unjust enrichment.

Deloitte moves to dismiss, arguing that: (1) the first six causes of action are barred by the Settlement Agreement; (2) Avnet does not plead a viable claim for fraudulent inducement of the. Settlement Agreement or any post-Settlement Agreement work; (3) none of the claims based on Delditte’ s post-Settlement conduct are viable; and ( 4) in the
alternative, all of the post-Settlement Agreement work claims (;ir e duplicative of the express breach of contract claim pleaded in the tenth cause of action.”

“”It is well established that a valid release constitutes a complete bar to an action on a claim which is the,subject of the release” (Global Minerals & Metals Corp. v Solme, 35 AD3d 93, 98 [1st Dept 2006]). If “the language of a release is clear and unambiguous, the signing of a release is a ‘jural act’ binding on the parties” (Booth v 3669 Delaware,·
Inc., 92 NY2d 934, 935 [1998]). “A release should never be converted into a starting point for, .. litigation except under circumstances and under rules which would render any other result a grave injustice” (Centro Empresarial Cempresa S.A. v Am. Movil, S.A.B. de C. V, 17 NY3d 269, 276 [2011]). Significantly, “a release may encompass unknown
claims, including unknown fraud claims, if the parties so intend and the agreement is ‘fairly and knowingly made”‘ (id.,, quoting Mangini v McClurg, 24 NY2d 556, 568 [1969]). . ‘)

The Settlement ~Agreement released Deloitte from “any and an claims . . . or actions or causes of action of every nature and. description,” including both “known and unknown” claims relating to Project Evolve. This includes an claims for breach of the MSA and the pre-settlement Work Orders and any rel~ted tort and statutory claims, Avnets’ contention that alleged fraud committed by Deloitte in conjunction with its presettlement work on Project Evolve is beyond the scope of the release is baseless. A release of all unknown claims includes fraud claims whose basis was not· yet known to the plaintiff at the time of the release (see Centro, 17 NY3d at 277). That is the essence of a release of unknown claims.”

Read on in the original for footnotes 1-4

Seaman v Schulte Roth & Zabel LLP  2019 NY Slip Op 07510 Decided on October 17, 2019 Appellate Division, First Department illustrates to bedrock principles of legal malpractice.  The first is that of privity and the second is that of  demonstrable technical mistakes v. dashed expectations.  The attorneys working on the post-nup were not in privity and they did not make a technical  mistake such as a bad acknowledgement.

“The course of conduct among the parties demonstrated by the documentary evidence, particularly the repeated communications from defendants to plaintiff clearly disclaiming an attorney-client relationship and advising plaintiff and his wife to consult independent counsel, refute plaintiff’s general allegations that Frunzi was his attorney in connection with the negotiation and execution of the postnuptial agreement in question (cf. Barrett v Goldstein, 161 AD3d 472 [1st Dept 2018]). Although defendants were required to use the ordinary degree of skill required of the legal community in drafting a postnuptial agreement, there is no claim that the agreement was ineffective due to a technical error or that Frunzi failed to accurately memorialize the terms of the parties’ agreement (compare Shanley v Welch, 31 AD3d 1127 [4th Dept 2006] and Shanley v Welch, 6 AD3d 1065 [4th Dept 2004] [defendant attorney failed to [*2]have settlement agreement properly acknowledged, so that it was ineffective]).”

A claim for legal malpractice has been made, and damages in a commercial setting are alleged.  How does one prove them, what are the rules and what is the difference between general and consequential damages?  In Electron Trading LLC v Perkins Coie LLP 2019 NY Slip Op 33019(U) October 9, 2019
Supreme Court, New York County Docket Number: 652178/2018 Judge O. Peter Sherwood gives an explanation.

“The law in New York is well settled that in order to obtain lost profits for breach of contract, plaintiff must prove the extent of such damages “with a reasonable degree of certainty” Calif Dairies, Inc. v Penn Station News Corp., 262 AD 2d 193, 194 (1st Dept 1999). However, as Electron argues, there is a distinction to be made between (1) lost profits that are general damages
and (2) lost profits that are consequential or special damages (see, e.g. Am List Corp. v US. News & World Rpt., Inc., 75 NY 2d 38, 42 [1989]). In the former case (which Electron claims is properly pleaded here), such damages may be recovered so long as plaintiff demonstrates a sable foundation
for a reasonable estimate. In the latter case (which defendants assert applies), consequential damages must be demonstrated with reasonable certainty. Electron also argues that it has sufficiently pleaded that it could have recovered lost profits even as consequential damages.

“A party may not recover damages for loss profits unless they were within the contemplation of the parties at the time the contract was entered into and are capable of measurement with reasonable certainty” Ashland Mgt. Inc. v Janien, 82 NY2d 395, 403 (1993). The first requirement is a rule of foreseeability (see id). The second requirement “does not require
absolute certainty … It requires only that damages be capable of measurement based upon known reliable factors without undue speculation” id “[I]n the case of a new business seeking to recover
loss of future profits [as here], a stricter standard is imposed because there is no experience from which lost profits may be estimated with reasonable certainly and other methods of evaluation may be too speculative” id, at 404. ”

In a stark turnabout, Gross v Aronson, Mayefsky & Sloan, LLP
2019 NY Slip Op 32972(U) October 9, 2019 Supreme Court, New York County
Docket Number: 153274/2017 Judge: Anthony Cannataro illustrates the compelling defense given to prior counsel when successor counsel takes over and fails to fix a problem facing the first attorney.  If the problem is not solved, it is for one of two reasons.  Either the problem cannot be solved (i.e. no attorney malpractice by either) or it could have been solved, but the second attorney failed.  In either factual setting, the first attorney may be off the hook.

“Defendant provides new information that materially alters this Court’s decision on both remaining causes of action. In support of its motion to renew the second cause of action, defendant relies on transcripts from a separate proceeding in which a referee recommend that a judgment be entered in plaintiff’s favor for outstanding expenses through December 2018 in the amount of $109,916.18. As this judgment includes the
extracurricular and nanny expenses at issue in the second cause of action, it represents a new and material fact that warrants renewal. Where documentary evidence establishes that successor counsel had sufficient time and opportunity to adequately protect plaintiff’s rights, prior counsel’s alleged negligence cannot be considered a proximate cause of plaintiff’s alleged damages (Maksimiak v Schwartzapfel Novick Truhowsky Marcus,
P.C., 82 AD3d 652, 652 [1st Dept 2011]). Upon renewal the Court finds that as successor counsel obtained a judgment covering the exact expenses that defendant allegedly failed to recover, defendant’s failure to seek such expenses cannot be a proximate cause of her damages and therefore plaintiff’s second cause of action must be dismissed.  “

Legal malpractice litigation is rarely centered on the “mistake” or “departure”.  All too often that elements is starkly clear.  The battle goes on in the “but for” or “proximate cause” elements.  Wang v Simon, Eisenberg & Baum, LLP 2018 NY Slip Op 07062 [165 AD3d 546]  October 23, 2018 Appellate Division, First Department is a prime example.

“The court properly concluded that collateral estoppel barred plaintiff from relitigating his claims that defendants improperly translated to and from American Sign Language (ASL) the amount he was willing to accept in settlement and then settled for an amount that was unacceptable to him. The Federal District Court’s opinion clearly addressed and rejected these claims, and the Second Circuit properly reviewed the District Court’s findings de novo. The allegations of the complaint in this action and in the federal action are the same, although here plaintiff has asserted legal malpractice, rather than seeking to void the settlement. The fact that the issue arose in the context of a different type of action is not dispositive because the factual findings necessary to support the claims are identical (see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]).

Additionally, plaintiff has not cited new evidence not raised in the federal courts, and he chose not to retain new counsel in the prior action after he discovered the claimed error. He also failed to point to differences in the applicable law in the prior action and here.

Plaintiff asserts that he did not have a full and fair opportunity to litigate his claims because the federal court did not provide him with an ASL interpreter so that he could make a proper presentation in oral argument. However, he failed to point to any evidence he was unable to present to the federal courts. Moreover, the Second Circuit determined that there was no need to hear oral argument on the issue of whether he instructed his attorney to seek the settlement amount he allegedly sought, and it is unclear how plaintiff’s disability interfered with his ability to present his claim in written form or to retain counsel of his choosing. He was also free to hire a private ASL interpreter to communicate with counsel if he believed that it was necessary.”

Halwani v Boris Kogan & Assoc., P.C.  2019 NY Slip Op 32914(U) October 4, 2019 Supreme Court, New York County Docket Number: 155241/2014
Judge: Barbara Jaffe is an example of how thing were once done, thankfully no longer how they are now done.  Electronic filing has changed a vast landscape of litigation.  Getting the papers filed, not having to go to court, having (is this an example of blockchain?) proof of filing were all things that did not exist in the recent past.  The central question in this case was what made up the appellate record?

“On plaintiff’s appeal from that order, Aurora and Barsano contended that because plaintiff had omitted some exhibits which had been submitted to the court on the motion and cross motion, the appeal should be dismissed. Plaintiff argued that the court had rejected those
exhibits and that the subpoenaed record does not include them. By order dated March 30, 2010, the Appellate Division, Second Department, held the appeal in abeyance, observing that the order appealed from did not indicate that any exhibits had been rejected. It remitted the matter to
the motion court to hear and report as to the exhibits that had been considered in determining the motions. (NYSCEF 9). As the justice who had ruled on the motions had retired, another justice held the hearing ordered by the Appellate Division and on February 6, 2012, stated that she could not determine the evidence on which the motion court had relied. (NYSCEF 21 ).

By order dated January 20, 2013, plaintiff’s appeal was dismissed due to an inadequate record. The Court held that “[u]nder these circumstances, and in light of the fact that both the plaintiffs and the defendant referenced the subject exhibits in their respective motion papers, we
must conclude that these exhibits were before the Supreme Court when it determined the motion and cross motion.” (NYSCEF 8). ”

“By summons and complaint dated May 2, 2014, plaintiff initiated this action against defendant, his counsel in the prior action, alleging that it committed attorney malpractice by failing to compile an adequate record on appeal. He maintains that he was forced to incur additional and unnecessary legal costs for an appeal that was “doomed to fail,” as well as the legal proceedings that followed the remittance of the matter for the hearing, and that he would not have suffered these damages absent defendant’s failure to compile an adequate appellate record. (NYSCEF 1).”

“To state a cause of action for legal malpractice, plaintiff must allege attorney negligence, that the negligence was the proximate cause of the loss sustained, and actual damages. (Reibman v Senie, 302 AD2d 290, 290 [1st Dept 2003]). To be negligent, an attorney’s conduct must fall below the “ordinary and reasonable skill and knowledge commonly possessed by a member of the profession.” (Bernstein v Oppenheim & Co., P.C., 160 AD2d 428, 430 [1st Dept 1990]). Dissatisfaction with an attorney’s reasonable strategic choices and tactics does not constitute a basis to state a cause of action for attorney negligence. (Kassel v Donohue, 127 AD3d 674 [1st Dept 2015], lv dismissed 26 NY3d 940 [2015]). Plaintiff must also show that “but for” defendant’s malpractice, plaintiff would not have suffered “actual ascertainable damages.”
(Pellegrino v File, 291 AD2d 60, 63 [1st Dept 2002], lv denied 98 NY2d 606 [2002]).

As plaintiff admittedly fails to demonstrate that but for defendant’s alleged negligence, plaintiff would have succeeded in the underlying litigation, he does not demonstrate,prima facie, an essential element of his claim. (See Ruotolo v Mussman & Northey, 105 AD3d 591, 592 [1st
Dept 2013], lv denied 22 NY3d 855 [2013] [dismissing complaint where “plaintiff failed to demonstrate that he would have succeeded on the merits of the underlying action ‘but for’ defendants’ alleged negligence”]). “