Legal malpractice comes up in any number of underlying settings.  In NYC real estate, zoning and building department violations are frequent contenders for legal action, hence frequent contenders in legal malpractice cases.  Bakcheva v Law Offs. of Stein & Assoc.  2019 NY Slip Op 00844 [169 AD3d 624] February 6, 2019 Appellate Division, Second Department is an example.

“In January 2012, the plaintiff purchased a penthouse apartment on the seventh floor of a condominium located at 390 Kings Highway in Brooklyn. The plaintiff was represented in that transaction by the defendants Law Offices of Stein & Associates (hereinafter the law firm) and Irene Stein (hereinafter together the defendants). A few months after the closing, the plaintiff became aware that the apartment’s second floor was not as described in the certificate of occupancy or the condominium’s plan documents. The plaintiff commenced this action against, among others, the defendants, to recover damages for legal malpractice and fraud. After discovery, the defendants moved for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court granted that branch of the defendants’ motion which was for summary judgment dismissing the fraud cause of action, but denied that branch of the defendants’ motion which was for summary judgment dismissing the legal malpractice cause of action. The defendants appeal from so much of the order as denied that branch of their motion.

A plaintiff seeking to recover damages for legal malpractice must prove that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see McCoy v Feinman, 99 NY2d 295, 301-302 [2002]; Biberaj v Acocella, 120 AD3d 1285, 1286 [2014]). A defendant seeking summary judgment dismissing a legal malpractice cause of action has the burden of establishing prima facie that he or she did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages (see Iannucci v Kucker & Bruh, LLP, 161 AD3d 959, 960 [2018]; Betz v Blatt, 160 AD3d 696, 698 [2018]). The defendant must affirmatively demonstrate the merits of a defense, rather than merely pointing out gaps in the plaintiff’s proof (see Iannucci v Kucker & Bruh, LLP, 161 AD3d at 960).

We agree with the Supreme Court that the defendants were not entitled to summary judgment dismissing the legal malpractice cause of action. Although the defendants established their prima facie entitlement to judgment as a matter of law, the plaintiff raised a triable issue of fact in opposition. Specifically, the plaintiff submitted evidence that she had informed the defendants, prior to the closing, that the main portion of the apartment was on the seventh floor of the building and that the apartment included a second level. According to the plaintiff, the defendants committed malpractice because they failed to recognize the illegality of the second level, since neither the certificate of occupancy nor the approved condominium offering plan authorized the existence of an eighth floor to the condominium (see id.). “

As we discussed on Friday, how and when “continuous representation” is applied depends more on the judge or appellate panel hearing the case than on time-honored well-understood rules.  Schrull v Weis
2018 NY Slip Op 07769 [166 AD3d 829] November 14, 2018 Appellate Division, Second Department demonstrates that continuous representation may be applied idiosyncratically.

“On July 23, 2008, the plaintiff allegedly was hired to perform carpentry work at a home. The plaintiff alleged that he sustained injuries to his left hand while using a defective table saw provided by the nonparty homeowner. In September 2008, the plaintiff allegedly consulted with the defendant Robert A. Weis, who practiced law at the defendant Law Firm of William G. Sayegh, P.C. (hereinafter the defendant law firm), concerning the plaintiff’s legal rights with respect to the accident. On September 16, 2008, the plaintiff executed a retainer agreement, retaining the defendant law firm “to prosecute and/or adjust a claim for serious personal injuries sustained by [the plaintiff] . . . arising from the negligence” of the manufacturer of the table saw, the homeowner, or anyone else responsible (hereinafter the personal injury claim).

On August 7, 2015, the plaintiff commenced this action against Weis, individually and as an associate of the defendant law firm, and the defendant law firm, asserting, inter alia, a cause of action alleging legal malpractice. The complaint alleged that after the plaintiff executed the retainer agreement, Weis informed the plaintiff that the defendants were going to commence a personal injury and products liability action against the owner of the table saw, the manufacturer of the table saw, and “ ’everyone that touched the table saw’ ” until it was sold to the homeowner; the [*2]personal injury claim was “ ’worth millions of dollars’ ”; and it “would take up to seven (7) years to resolve” the personal injury claim. The complaint further alleged that from approximately September 2008 to late 2008, the plaintiff contacted Weis approximately every two weeks to inquire about the status of the personal injury claim. Weis allegedly advised the plaintiff to “ ’put the case on the back burner as it was going to take a long time to resolve,’ ” and that Weis “ ’had the plaintiff’s contact information,’ ” and “ ’if he needed the plaintiff, he would contact him.’ ” The complaint also alleged that between approximately late 2008 and July 2014, the plaintiff called the defendants’ law office every six to eight months to check on the status of the personal injury claim and spoke to a secretary each time. The complaint alleged that on July 29, 2014, the plaintiff went to the defendants’ office and asked Weis “when his court date was” because “it was getting close” to the seven-year “anniversary of the accident.” Weis allegedly told the plaintiff that he had “ ’no case,’ ” and that Weis thought the plaintiff had “ ’disappeared.’ ”

The defendants moved, inter alia, pursuant to CPLR 3211 (a) (5) to dismiss the legal malpractice cause of action, contending that the cause of action was asserted more than three years after the statute of limitations on the personal injury claim had expired and, thus, was time-barred (see CPLR 214 [6]). In opposition, the plaintiff argued that the statute of limitations was tolled under the continuous representation doctrine, and, in effect, that the defendants should be equitably estopped from asserting the statute of limitations as a defense. The plaintiff also cross-moved to permanently estop the defendants from asserting a statute of limitations defense.

In an order dated March 10, 2016, the Supreme Court determined, inter alia, that the cause of action alleging legal malpractice was time-barred. The court concluded that the legal malpractice cause of action accrued on July 23, 2011, when the statute of limitations on the personal injury claim expired; the statute of limitations on the legal malpractice cause of action expired on July 23, 2014, three years after the statute of limitations for the personal injury claim had expired; and the continuous representation doctrine did not toll the statute of limitations. The court also concluded that the doctrine of equitable estoppel was inapplicable. Accordingly, the court granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (5) to dismiss the legal malpractice cause of action, and denied the plaintiff’s cross motion. The plaintiff appeals.”

“Here, the defendants satisfied their initial burden by demonstrating that the plaintiff’s legal malpractice cause of action accrued on July 23, 2011, when the statute of limitations on the personal injury claim expired, which was more than three years before the commencement of this action (see Shumsky v Eisenstein, 96 NY2d 164, 166 [2001]; Baker v Levitin, 211 AD2d 507, 507 [1995]). In opposition, however, the plaintiff raised a question of fact as to whether the continuous representation doctrine tolled the running of the statute of limitations until July 29, 2014, when Weis [*3]allegedly informed the plaintiff that he did not have a case. Upon entering into the retainer agreement, the plaintiff and the defendants reasonably intended that their professional relationship of trust and confidence, focused upon the personal injury claim, would continue. The complaint adequately alleged that the plaintiff was “left with the reasonable impression” that the defendants were, “in fact, actively addressing [his] legal needs” until that date (Shumsky v Eisenstein, 96 NY2d at 169; see Lytell v Lorusso, 74 AD3d 905, 907 [2010]). The allegations in the complaint failed to reflect, as a matter of law, that the plaintiff knew or should have known that the defendants had withdrawn from representation on the personal injury claim more than three years before the legal malpractice action was commenced (cf. Shumsky v Eisenstein, 96 NY2d at 171; Muller v Sturman, 79 AD2d 482, 486 [1981]). Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was to dismiss the legal malpractice cause of action as time-barred.”

When does representation by an attorney end?  Is it when there is friction between client and attorney?  Is it when the attorney unilaterally withdraws?  Is it when the attorney is granted a withdrawal by the Court?  Courts are all over the place on this issue.

Courtney v McDonald  2019 NY Slip Op 07856  Decided on October 31, 2019 Appellate Division, First Department is clear on its point.  But: look at Farage v. Ehrenberg, 124 AD3d 159 (2d Dept, 2014)

“Order, Supreme Court, New York County (David B. Cohen, J.), entered May 8, 2018, which, to extent appealed from as limited by the briefs, denied defendants’ motion to dismiss the complaint, unanimously modified, on the law, to grant the motion

as to the first cause of action insofar as it is based on defendants’ representation of plaintiffs in the matter concerning 304 W 18th and to grant the motion as to the second and third causes of action in their entirety, and otherwise affirmed, without costs.

The first cause of action in plaintiffs’ complaint alleges legal malpractice with respect to defendants representation of plaintiffs in two underlying actions – the 304 W 18th Street matter and the 175 W 12th Street matter. Contrary to defendants’ argument, the malpractice cause of action with respect to the 175 W 12th Street matter is not time-barred by the three-year statute of limitations applicable to legal malpractice claims (CPLR 214[6]). Defendants failed to demonstrate that the attorney-client relationship ceased to exist within three years of August 28, 2017, the date plaintiffs filed this action. Although defendants sent a letter, dated August 7, 2014, unilaterally terminating their representation of plaintiffs, they failed to move to withdraw from representation in the foreclosure action (see CPLR 321[b]) until more than a year after sending the subject letter. Accordingly, to the extent plaintiffs’ first cause of action concerns alleged legal malpractice by defendants in their representation of plaintiffs in the matter concerning 175 W 12th Street, the motion to dismiss that cause of action was properly denied.”

When the law firm’s financial officer steals $ 4M+ from the escrow accounts, there are bound to be some unhappy people.  It is even worse when the law firm’s financial officer is the brother of the named partner.  In Galasso, Langione & Botter, LLP v Galasso,  2019 NY Slip Op 07769  Decided on October 30, 2019 the Appellate Division, Second Department upheld summary judgment decisions in favor of the defrauded party whose funds were stolen.

“Anthony Galasso (hereinafter Anthony) was the bookkeeper and office manager for the law firm Galasso, Langione & Botter, LLP (hereinafter the Firm), where his brother, Peter Galasso (hereinafter Peter), was a named partner. In 2002, the Firm began banking with Signature Bank (hereinafter Signature). According to Peter, the Firm intended to open two operating accounts and an IOLA account at Signature. Applications for those accounts were completed by Peter and his law partner James Langione and given to Anthony to submit to the bank. Instead, however, Anthony submitted forged account applications for three operating accounts, on which Anthony was listed as a signatory, and as well as an IOLA account. The applications requested that the Firm have access to Internet banking. A user-ID and password were mailed to the Firm’s street address and acquired by Anthony, who opened the mailing.

In 2004, Peter represented Stephen Baron in a matrimonial action commenced by Wendy Baron. The Barons entered into an escrow agreement with Peter, as the designated escrow agent, in which Peter agreed to hold proceeds in the sum of $4,840,862.34, derived from a sale of commercial property owned by Stephen Baron, pending further order of the matrimonial court. Anthony, in his capacity as office manager, deposited the funds at Signature into an escrow account entitled “Galasso Langione LLP as Escrow Agents for Stephen Baron” (hereinafter the Baron escrow account). Peter and Langione were the only authorized signatories on the account application completed by the Firm. However, Anthony altered the escrow account application to include himself as a signatory and to permit electronic funds transfers. Signature accepted the application.

Between June 23, 2004, and January 17, 2007, Anthony transferred approximately $4,501,571 from the Baron escrow account into other Firm accounts maintained at Signature through the use of Internet transfers. The funds transferred from the Baron escrow account were then disbursed to Peter and the Firm’s employees, without their knowledge, in order to replace funds that Anthony had previously removed from other accounts. Additionally, approximately $360,000 in funds transferred from the Baron escrow account was used to finance the purchase of the Firm’s office condominium by GC Lawcondo, LLC (hereinafter GC Lawcondo). To conceal this conduct, Anthony arranged for the Firm’s account statements, including for the Baron escrow account, to be sent to a post office box. He then fabricated false account statements for review by the Firm.”

“The Supreme Court should not have granted that branch of Signature’s motion which was for summary judgment dismissing the fifth cause of action asserted against it in Action No. 1, alleging negligent conduct with respect to the Baron escrow account. In light of the expert affidavits submitted by both Signature and the plaintiff in Action No. 1, there are triable issues of fact as to whether Signature was negligent in knowingly permitting Anthony—a nonattorney—to be a signatory on the Baron escrow account, and as to whether any such negligence was a proximate [*3]cause of the loss of funds deposited in the Baron escrow account (see generally Stucchio v Bikvan, 155 AD3d 666, 667). For the same reasons, we likewise agree with the court’s determination to deny that branch of the motion of the plaintiff in Action No. 1 which was for summary judgment on the fifth cause of action asserted against Signature (see generally id. at 667).”

“We agree with the Supreme Court’s determination to deny that branch of the motion of the moving defendants in Action No. 4 which was for summary judgment dismissing the second cause of action insofar as asserted against the law firm defendants, and to grant that branch of the Barons’ motion which was for summary judgment on that cause of action insofar as asserted against the law firm defendants. The Barons established their prima facie entitlement to judgment as a matter of law against the law firm defendants by adducing evidence that the law firm defendants were enriched at the Barons’ expense by Anthony’s transfer of funds from the Baron escrow account into the Firm’s accounts, and that it is against equity and good conscience to permit the law firm defendants to retain the funds (see Mobarak v Mowad, 117 AD3d 998, 1001). In opposition, the moving defendants failed to raise a triable issue of fact. Further, we agree with the court’s determination to deny that branch of the moving defendants’ motion which was for summary judgment dismissing this cause of action insofar as asserted against Botter because they failed to adduce evidence demonstrating, prima facie, that he was not enriched at the Barons’ expense.”

“We agree with the Supreme Court’s determination to deny that branch of the motion of the moving defendants in Action No. 4 which was for summary judgment dismissing the tenth cause of action, alleging breach of fiduciary duty, insofar as asserted against Peter. Contrary to the moving defendants’ contention, they failed to demonstrate, prima facie, that Peter’s alleged breach of his fiduciary duty to safeguard the funds in the Baron escrow account was not a proximate cause of the Barons’ loss of the funds (see Matter of Galasso, 19 NY3d at 694-695). In that respect, an intervening act, such as Anthony’s theft of the funds, “may not serve as a superseding cause, and [*4]relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent” (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 316; see Santaiti v Town of Ramapo, 162 AD3d 921, 927).

We agree with the Supreme Court’s determination to grant that branch of the Barons’ motion which was for summary judgment on the twelfth cause of action in Action No. 4, seeking to impose vicarious liability for Anthony’s misconduct, insofar as asserted against the law firm defendants and Peter. Under the doctrine of respondeat superior, an employer may be held vicariously liable for the torts committed by an employee who is acting within the scope of employment (see Riviello v Waldron, 47 NY2d 297, 302). “While such vicarious liability does not arise from acts that are committed for the employee’s personal motives unrelated to the furtherance of the employer’s business, those acts which the employer could reasonably have foreseen are within the scope of the employment and thus give rise to liability under the doctrine of respondeat superior, even where those acts constitute an intentional tort or a crime” (Holmes v Gary Goldberg & Co., Inc., 40 AD3d 1033, 1034 [citations omitted]; see Riviello v Waldron, 47 NY2d at 302-305). “[F]or an employee to be regarded as acting within the scope of his [or her] employment, the employer need not have foreseen the precise act or the exact manner of the injury as long as the general type of conduct may have been reasonably expected” (Riviello v Waldron, 47 NY2d at 304).

Here, contrary to the moving defendants’ contention, the Barons established, prima facie, that Anthony was acting within the scope of his employment by demonstrating that Anthony’s theft of the Barons’ funds was foreseeable (see Holmes v Gary Goldberg & Co., Inc., 40 AD3d at 1035; Hatton v Quad Realty Corp., 100 AD2d 609, 610). In opposition, the moving defendants failed to raise a triable issue of fact. For the same reasons, we agree with the Supreme Court’s determination to deny that branch of the moving defendants’ motion which was for summary judgment dismissing the twelfth cause of action insofar as asserted against the law firm defendants and Peter. We also agree with the court’s determination to deny that branch of the moving defendants’ motion which was for summary judgment dismissing this cause of action insofar as asserted against Botter, because they failed to adduce evidence establishing, prima facie, that he did not directly supervise Anthony (see Partnership Law § 26[c]).”

One might think that if you hire an attorney to do a certain task, then the attorney is simply required to meet the generally accepted standard of practice in completing that task.  That assumption is correct.  What matters is how the agreement between the attorney and the client is worded.  Attallah v Milbank, Tweed, Hadley & McCloy, LLP  2019 NY Slip Op 00583 [168 AD3d 1026]  January 30, 2019  Appellate Division, Second Department is an excellent example.

“In 2011, the defendant agreed to assist the plaintiff on a pro bono basis, in a very limited fashion, regarding the plaintiff’s expulsion in 2010 from the New York College of Osteopathic Medicine. To that end, the parties executed a letter of engagement dated July 7, 2011. The letter of engagement provided, in relevant part, that: “Our services will include all activities necessary and appropriate in our judgment to investigate and consider options that may be available to urge administrative reconsideration of your dismissal from the New York College of Osteopathic Medicine (the ‘College’). This engagement does not, however, encompass any form of litigation or, to the extent ethically prohibited in this circumstance, the threat of litigation, to resolve this matter. This engagement will end upon your re-admittance to the College or upon a determination by the attorneys working on this matter that no non-litigation mechanisms are available to assist you. The scope of the engagement may not be expanded orally or by conduct; it may only be expanded by a writing signed by our Director of Public Service.””

“We agree with the Supreme Court’s determination granting the defendant’s motion to dismiss the amended complaint. Contrary to the plaintiff’s contention, according to the parties’ undisputed letter of engagement, the defendant did not promise to negotiate administrative reconsideration on the plaintiff’s behalf but, rather, that it would “investigate and consider options that may be available to urge administrative reconsideration of your dismissal from the New York College of Osteopathic Medicine.” The letter of engagement conclusively demonstrated that there was no promise to negotiate. There was only a promise to investigate and consider whether there were any options possibly available to urge the school to reconsider the plaintiff’s expulsion. Anything else, including the defendant’s failure to commence litigation against the school and the defendant’s alleged rendering of legal advice regarding the efficacy of the plaintiff’s commencing a defamation action against others, was outside the scope of the letter of engagement.

An attorney may not be held liable for failing to act outside the scope of a retainer (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428 [2007]). Therefore, since the defendant’s alleged failure to negotiate with the school, its alleged failure to commence litigation against the school, and its alleged failure to properly advise the plaintiff on the efficacy of a defamation action against nonschool parties fell outside the scope of the parties’ letter of engagement, dismissal of the cause of action alleging legal malpractice was warranted, pursuant to CPLR 3211 (a) (1), on documentary evidence grounds.”

It is ironic when attorney errors harm an otherwise good legal malpractice case.  Leeder v Antonucci  2019 NY Slip Op 05898 [174 AD3d 1469] July 31, 2019 Appellate Division, Fourth Department is an example.

“We reject plaintiff’s contention that Supreme Court erred in granting the cross motion with respect to the biofuel cause of action. It is well settled that “a necessary element of a cause of action for legal malpractice is that the attorney’s negligence caused ‘a loss that resulted in actual and ascertainable damages’ ” (New Kayak Pool Corp. v Kavinoky Cook LLP, 125 AD3d 1346, 1348 [4th Dept 2015]), and that “ '[c]onclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action’ ” (id.). With respect to the biofuel cause of action, defendant met his initial burden on the cross motion by establishing that plaintiff’s allegations of damages are entirely speculative (see Lincoln Trust v Spaziano, 118 AD3d 1399, 1401 [4th Dept 2014]; Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 848 [2d Dept 2012], lv denied 20 NY3d 857 [2013]), and thus plaintiff is “unable to prove at least one of the essential elements of [his] legal malpractice cause of action” (Boglia v Greenberg, 63 AD3d 973, 974 [2d Dept 2009]; see Grace v Law, 108 AD3d 1173, 1174-1175 [4th Dept 2013], affd 24 NY3d 203 [2014]). Plaintiff failed to raise an issue of fact in opposition (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). We are unable to review plaintiff’s contention that he raised a triable issue of fact with respect to those damages by submitting an expert report inasmuch as plaintiff failed to include that document in the record on appeal. Thus plaintiff, as the party raising this issue on his appeal, “submitted this appeal on an incomplete record and must suffer the consequences” (Matter of Santoshia L., 202 AD2d 1027, 1028 [4th Dept 1994]; see Resetarits Constr. Corp. v City of Niagara Falls, 133 AD3d 1229, 1229 [4th Dept 2015]).”

An attorney sues the client for legal fees.  Client has two choices.  Resist the fee claim on its merits (overbilled,work not performed, work not contemplated in contract) or add a claim for legal malpractice.  Either way, the client must make the legal malpractice claim stick now.  It cannot be brought later.

Kleinman v Weisman Law Group, P.C.   2019 NY Slip Op 07573  Decided on October 23, 2019 Appellate Division, Second Department illustrates the problem.

“In 2013, the defendant Weisman Law Group, P.C. (hereinafter the defendant firm), commenced an action against the plaintiff to recover unpaid legal fees in the Nassau County District Court. The plaintiff asserted a counterclaim, alleging that he was overbilled by the defendant firm. A judgment was entered in favor of the defendant firm and against the plaintiff. The plaintiff appealed the judgment of the Nassau County District Court to the Appellate Term of the Supreme Court for the Ninth and Tenth Judicial Districts, which affirmed the judgment (see Weisman Law Group, P.C. v Kleinman, 60 Misc 3d 133[A], 2018 NY Slip Op 51042[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2018]). In 2016, the plaintiff commenced the instant action against the defendants asserting causes of action alleging, inter alia, breach of contract and legal malpractice.

The plaintiff contends that the doctrines of res judicata and collateral estoppel do not apply in the instant case, as the Nassau County District Court lacked subject matter jurisdiction over his counterclaim in the prior action. Contrary to the plaintiff’s contention, the Nassau County District Court did have jurisdiction over his counterclaim pursuant to Uniform District Court Act § 208(b), as the counterclaim was for money only. The doctrine of res judicata precludes the plaintiff from litigating the claims set forth in his complaint, as a judgment on the merits exists in the prior action between the same parties involving the same subject matter (see Matter of Josey v Goord, 9 NY3d 386, 389; Matter of Hunter, 4 NY3d 260, 269). New York has adopted the transactional analysis approach to res judicata, so that once a claim is brought to a final conclusion, all other claims between the same parties or those in privity with them arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy (see Matter of Josey v Goord, 9 NY3d at 389-390; Matter of Hunter, 4 NY3d at 269; O’Brien v City of Syracuse, 54 NY2d 353, 357; Greenstone/Fontana Corp. v Feldstein, 72 AD3d 890, 893).

Furthermore, the plaintiff’s causes of action are barred by the doctrine of collateral estoppel, which 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 (see Ryan v New York Tel. Co., 62 NY2d 494, 500; Williams v New York City Tr. Auth., 171 AD3d 990). The doctrine of collateral estoppel applies here, as the issues in both actions are identical, the issue in the prior action was actually litigated and decided, there was a full and fair opportunity to litigate the action, the issue previously litigated was necessary to support a valid and final judgment on the merits, and the defendant Rachel J. Weisman was in privity with the defendant firm (see Conason v Megan Holding, LLC, 25 NY3d 1, 17; Williams v New York City Tr. Auth., 171 AD3d at 991-992; Karimian v Time Equities, Inc., 164 AD3d 486).”