The statute of limitations has a number of purposes, one of which is to end stale cases, another of which is to quiet old controversies.  Giller v Kate, Nussman, Ellis Farhi & Earle, LLP
2019 NY Slip Op 32301(U) July 31, 2019  Supreme Court, New York County  Docket Number: 156885/2018 Judge: W. Franc Perry illustrates how a claim of fraudulent concealment affects a statute of limitations defense.

“This legal malpractice’ action arises out of Kates Nussman’s representation of Giller in an
underlying consolidated tort action by Giller and non-party Richard Ginsberg {“Ginsberg”)
against Daniel Gittleman (“Gittleman”), Patricia Gittleman, and HP, before the United States
District Court, District of New Jersey, under Claim Action Nos. 1 :Ol~cv-5698 and 1 :02-cv-2247
(SSB) (the “Gittleman Action”). In the Gittleman Action, Giller, as the former owner of a 10%
interest in Raid Power, Inc. (“Raid”), alleged that in 1995, Gittleman misrepresented to Giller
and Ginsberg that he was winding up Raid, and offered to return th~ amounts paid by Giller and Ginsberg for their respective ownership stake’s in Raid. At the time, Ginsberg and Gittleman each owned a 45% stake in Raid. Instead of winding up Raid, Gittleman continued the business and eventually sold Raid to HP for three-hundred and twenty million dollars (Complaint, irir 8-15).

Initially, Kates Nussman and Ginsberg agreed to share the costs and fees regarding
depositions and the retention of experts. As litigation continued, it became apparent during settlement conferences that Giller’s and Ginsberg’s interests were no longer aligned. Moreover, Kates Nussman had failed to honor the parties’ letter agreement to share deposition costs and expert fees. As a result, Ginsberg ceased coordinating with Giller and commenced private negotiations that resulted in a settlement agreement between Ginsberg, Gittleman and HP on December 5, 2014. Given Plaintiffs failure to share costs and fees, after the settlement agreement, Ginsberg refused to provide Kates Nussman with access to the reports and testimony of his experts (see Letters, NYSCEF Doc. Nos. 17, 18, 19). ”

“In opposition, Giller argues that Kates Nussman is barred from asserted a defense based
on the statute of limitations under the doctrine of equitable estoppel. “In order for equitable
estoppel to apply, plaintiffs bear the burden in showing: (1) plaintiffs were induced by fraud,
misrepresentations or deception to refrain from filing a timely action; and (2) plaintiffs
reasonably relied on defendant’s misrepresentations” (MB! Intern. Holdings Inc. v Barclays
Bank PLC, 151AD3d108, 117 [1st Dept 2017], Iv to appeal denied, 29 NY3d 919 [2017]
[internal quotations and citation omitted]). However, “the doctrine of equitable estoppel ‘will not toll a limitations statute where plaintiffs possessed timely knowleqge sufficient to have placed them under a duty to make inquiry and ascertain all the relevant facts prior to the expiration of the applicable statute oflimitations”‘ (Brean Murray; Carret & Co. v Morrison & Foerster LEP, 165 AD3d 582, 582 [1st Dept 2018], quoting Rite Aid Corp. v. Grass, 48 A.D.3d 363, 364-365 [1st Dept. 2008]; see also Simcuski v Saeli, 44 NY2d 442, 450 [1978] [“due diligence on the part of the plaintiff in bringing his action is an essential element for the applicability of the doctrine of equitable estoppel”]).

Here, the alleged malpractice occurred between 2002 and 2005 when Kates Nussman  allegedly cajoled Giller to accept a low settlement offer by concealing the deteriorating health of Giller’s lead attomey,_Mr. Nashe!, and that Ginsberg had settled his claims against Gittleman and HP and would no longer cooperate with Kates Nussman or permit Kates Nussman to review or rely on the evidence and experts that Ginsberg had paid for. Giller’s conceded contemporary belief that the settlement offer was woefully inadequate, his knowledge that he was never asked to pay for experts, and KatesNussman’s refusal to continue to negotiate on Giller’s behalf, put Giller on notice to inquire further within the statute of limitations period. Accordingly, the doctrine of equitable estoppel does not save Giller’s untimely legal malpractice claim.”

Manhattan real estate is a steady source of legal malpractice cases.  It sometimes seems that there are too few clients, as conflict of interest claims often accompany the legal malpractice claims.  Here, too, defendant is accused of having too many clients in187 St. Mazal Manager, LLC v Herrick Feinstein LLP  2019 NY Slip Op 32305(U)  July 29, 2019  Supreme Court, New York County  Docket Number: 158840/2018   Judge: O. Peter Sherwood.

“In 2011, Ben Ari introduced plaintiffs and their affiliates (together, the HAP Entities) to
possible investment properties, which opportunity the Hap Entities decided to pursue. Their
intention was to purchase the property, clear it, and build an apartment building (the Project).
Herrick was hired, pursuant to a retainer agreement, to represent the HAP Entities in the
development of the Project. The agreement set out how Herrick would be paid. Ben Ari was to
perform the day to day services provided by Herrick under the supervision of Levine.

On September 24, 2012, Manager entered into a purchase and sale agreement to purchase
certain properties for $5 million. Manager also obtained assignments from non-party entities of the right to purchase additional parcels of land.

Plaintiffs allege defendants knew of irregularities in the title of certain of the properties
(284 Wadsworth Ave, and 655, 657, 661, 663, and 667 West 187th Street, together, the Demurjian Properties). In November 2011, defendant received a title report from First American Title Insurance Company (the First American Report) which identified some issues with the chains of title, including decades-long delays between transfer of the deed and its recording, potentially improper transfers, gaps in the chain of title, and so on. Defendants were aware of the First American Report and gave a copy to Michael Demurjian (seller of the Demurjian Properties), but never shared it with plaintiffs or advised plaintiffs of the issues  with title to the Demurjian Properties or counseled them not to pursue those properties. In fact, defendants concealed the issues with title, finding Boston National Title Agency, LLC (Boston National), which would insure title of all of the properties. Boston National did no investigation. Defendants also failed to reveal Demurjian was a Herrick client and that Levine was an investor in at least one of his businesses.

Subsequent litigation regarding the Demurjian Properties has prevented plaintiffs from
realizing the Project and raised the question of whether plaintiffs ever acquired a valid interest in certain parcels.”

“The parties agree the three-year statute of limitations applies to the malpractice claims.
Plaintiffs argue the period was tolled based on the continuous representation doctrine.
“Application of the continuous representation or treatment doctrine is … generally limited to the course of representation concerning a specific legal matter or of treatment of a specific ailment or complaint; the concern, of course, is whether there has been continuous  treatment, and not merely a continuing relation between physician and patient. Thus, the doctrine is not applicable to a client’s or patient’s continuing general relationship with a lawyer or physician involving only routine contact for miscellaneous legal representation or medical care, unrelated to the matter upon which the allegations of malpractice are predicated. Instead, in the context of a legal malpractice action, the continuous representation doctrine tolls the Statute of Limitations only where the continuing
representation pertains specifically to the matter in which the attorney committed the alleged
malpractice” (Shumsky v Eisenstein, 96 NY2d 164, 167-68 [2001] [internal citations omitted]). Here, plaintiffs base their argument entirely on the existence of the retainer agreement with Herrick, which had not been terminated. Plaintiffs do not allege any of the defendants provided any legal services after the September 24, 2012, sale agreement. However, the retainer expressly provides for Herrick to perform a long list of services in  connection with the Project. Most of those services have yet to be performed (NYSCEF Doc. No. 22). Because on a motion to dismiss, the court must accord the plaintiff “the benefit of every possible favorable inference” (Rovello v Orofino Realty Co., 40 NY 2d 633, 634 [1976]) and deny the motion where the documentary evidence does not “utterly refute” the claim (McCully v Jersey Partners, Inc., 60 AD 3d 562 [1st Dept 2009]), plaintiffs’ claim of continuous representation by Herrick survives and defendants’ statute of limitations defense fails (see Red Zone LLC v Caldwalader, Wickersham & Taft LLC, 27 NY 3d 1048, 1050 [2016]). The case may not be dismissed pursuant to CPLR 3211 (a)(5). “

Judiciary Law § 487 is the oldest statute in the US common law, dating from medieval English law.  It’s purpose is to regulate and punish deceit by attorneys.  The First Department looks at the purpose of Judiciary Law § 487 damages in Jean v Chinitz  2018 NY Slip Op 05521 [163 AD3d 497] July 26, 2018 Appellate Division, First Department.

“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]).

Moreover, “[t]reble damages awarded under Judiciary Law § 487 are not designed to compensate a plaintiff for injury to property or pecuniary interests” (Specialized Indus. Servs. Corp. v Carter, 99 AD3d 692, 693 [2d Dept 2012] [internal quotations marks omitted]). Rather, “they are designed to punish attorneys who violate the statute and to deter them from betraying their ‘special obligation to protect the integrity of the courts and foster their truth-seeking function’ ” (id., quoting Amalfitano v Rosenberg, 12 NY3d 8, 14 [2009]). Thus, plaintiff’s advancement of a section 487 cause of action in this case is inconsistent with the purpose of the statute, and dismissal of that cause of action was warranted for that additional reason.”

Most people fixate on the first element of legal malpractice – departure from good practice.  Leeder v Antonucci  2019 NY Slip Op 05898  Decided on July 31, 2019
Appellate Division, Fourth Department looks at the last of the elements – ascertainable damages, as well as examines continuous representation in a statute of limitations setting.

“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]).

We agree with plaintiff, however, that the court erred in granting the cross motion with respect to the estate cause of action, and we therefore modify the order and judgment [*2]accordingly. In that cause of action, plaintiff alleged that defendant committed malpractice by failing to timely file objections to the proposed accounting. It is well settled that “[a] cause of action for legal malpractice accrues when the malpractice is committed” (Elstein v Phillips Lytle, LLP, 108 AD3d 1073, 1073 [4th Dept 2013] [internal quotation marks omitted]), and that, “[w]hat is important [in determining the accrual date] is when the malpractice was committed, not when the client discovered it” (Glamm v Allen, 57 NY2d 87, 95 [1982]; see Town of Amherst v Weiss, 120 AD3d 1550, 1551 [4th Dept 2014]). Defendant met his burden on that part of the cross motion by establishing that the statute of limitations for legal malpractice is three years (see CPLR 214 [6]), that the estate cause of action accrued on November 1, 2010, the last date on which to file objections to the accounting (see generally International Electron Devices [USA] LLC v Menter, Rudin & Trivelpiece, P.C., 71 AD3d 1512, 1512 [4th Dept 2010]), and that the estate cause of action was therefore untimely when this malpractice action was commenced on November 15, 2013. “The burden then shifted to plaintiff[] to raise a triable issue of fact whether the statute of limitations was tolled by the continuous representation doctrine” (id. at 1512; see Mahran v Berger, 137 AD3d 1643, 1644 [4th Dept 2016]; Weiss, 120 AD3d at 1551).

We agree with plaintiff that the court erred in determining that plaintiff failed to do so. It is well settled that, in order for the continuous representation doctrine to apply, “there must be clear indicia of an ongoing, continuous, developing, and dependant relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice” (Luk Lamellen U. Kupplungbau GmbH v Lerner, 166 AD2d 505, 506-507 [2d Dept 1990]; see Dischiavi v Calli, 125 AD3d 1435, 1437 [4th Dept 2015]; Weiss, 120 AD3d at 1551-1552). Here, plaintiff submitted evidence that defendant made several unsuccessful attempts to file the objections within the weeks after the deadline and that he made preparations to appear at a scheduled conference on the objections on November 23, 2010. Those efforts could be viewed as “attempt[s] by the attorney to rectify an alleged act of malpractice” (Luk Lamellen U. Kupplungbau GmbH, 166 AD2d at 506-507), and thus plaintiff raised a triable issue of fact whether the statute of limitations was tolled by the continuous representation doctrine.”

Knox v Aronson, Mayefsky & Sloan, LLP  2018 NY Slip Op 09030 [168 AD3d 70]  December 27, 2018 Singh, J.  Appellate Division, First Department illustrates some important and bedrock doctrines found in legal malpractice:  the “but for” requirement, the “successor attorney” doctrine and the question of “duplication.”

“In July 2013, plaintiff sought to temporarily move from the Manhattan apartment to Connecticut for foot surgery. Despite defendant Robarge’s advice to the contrary, plaintiff, after apparently obtaining her husband’s consent, moved with the child to Greenwich, Connecticut.

On October 21, 2013, AMS filed an order to show cause to be relieved as counsel due to plaintiff’s lack of confidence in their advice. Before the order to show cause was heard, plaintiff voluntarily secured new counsel.{**168 AD3d at 73}

On May 2, 2014, while plaintiff was represented by FBK, the parties entered into a stipulation of settlement. On May 2, 2014, in open court, the parties were allocuted on the record. They stated that they understood and were satisfied with the settlement and with their attorneys’ representation.

The settlement provided for joint legal custody of the child, who would primarily reside with plaintiff. Plaintiff was required to move back to Manhattan “no later than September 1, 2014.” This obligation was deemed a “material term” of the settlement, and plaintiff agreed to pay any fees incurred in enforcing this term. The husband was required to pay FBK’s legal fees in the sum of $20,000 on plaintiff’s behalf. Plaintiff was otherwise “solely responsible for all legal and professional fees” incurred in connection with the matrimonial action.

The settlement also provided that plaintiff “withdraws her application for an Order of Protection with prejudice which she agree[d] shall be deemed dismissed on the merits after a full and fair hearing by the Court.” Since the first motion for an order of protection was resolved by the temporary stipulation, this was a second motion for a protective order, which plaintiff voluntarily withdrew as part of the settlement.

Plaintiff failed to return to Manhattan by the stated deadline under the settlement. As a result, the husband moved to compel her return, to transfer sole custody of the child to him, and for attorneys’ fees.

On September 5, 2014, Supreme Court ordered plaintiff to return “forthwith,” scheduled a custody hearing, and granted the husband’s application for attorneys’ fees subject to a showing of the amount owed. On July 15, 2015, Supreme Court directed that plaintiff pay the husband’s attorneys’ fees in the amount of $132,030.60. The court also found that a modification of the settlement was warranted and awarded the husband sole legal and primary residential custody of the child. The court cited plaintiff’s failure to timely return to Manhattan, which breached a material term of the settlement, and plaintiff’s continued exhibition of “gatekeeping” behavior toward the husband, including by making false accusations to the police. The court rejected plaintiff’s attempt to blame her failure to return to Manhattan on the husband’s failure to comply with his obligation to guarantee her lease, noting that plaintiff “made no serious effort to find a [*3]Qualified Residence” and her “obligation to move was not contingent on [the husband’s] guaranteeing a lease.”

“Turning first to plaintiff’s legal malpractice cause of action against AMS, she alleges that AMS was negligent in failing to move for attorneys’ fees, resulting in her failure to receive an undetermined award to pay her attorneys. This claim fails because plaintiff’s various successor counsel had ample time and opportunity to make such a motion, and in fact one did (although it was purportedly abandoned) (see Davis v Cohen & Gresser, LLP, 160 AD3d 484, 487 [1st Dept 2018]).{**168 AD3d at 75}

Even assuming AMS was negligent in failing to move for attorneys’ fees, by agreeing as part of the settlement^[FN2] to forgo any award of attorneys’ fees except for $20,000, plaintiff cannot show that but for AMS’s negligence she would not have sustained the loss (see generally Tydings v Greenfield, Stein & Senior, LLP, 43 AD3d 680, 682 [1st Dept 2007], affd 11 NY3d 195 [2008] [to establish proximate cause, the plaintiff must demonstrate that “but for” the attorney’s negligence, plaintiff would have prevailed in the matter in question; failure to demonstrate proximate cause mandates the dismissal of a legal malpractice action regardless of whether the attorney was negligent]; 180 Ludlow Dev. LLC v Olshan Frome Wolosky LLP, 165 AD3d 594, 595 [1st Dept 2018] [“While proximate cause is generally a question for the factfinder . . . it can, in appropriate circumstances, be determined as a matter of law”]).

Next, plaintiff claims that AMS was negligent in allegedly advising her that she was [*4]permitted to move to Connecticut, resulting in the loss of custody of the child. The damages plaintiff seeks are the attorneys’ fees incurred in connection with the husband’s motion to compel her return to New York and future legal fees she will have to expend to recover custody. Again, this claim fails because plaintiff’s alleged damages were not proximately caused by any advice given by AMS, but rather by her own subsequent failure to comply with the terms of the settlement.

[2] Turning to the breach of fiduciary duty claim, plaintiff seeks damages for pain and mental suffering, the $132,000 plaintiff was required to pay the husband for his attorneys’ fees, the attorneys’ fees needed to recover custody of the child, and punitive damages. This claim and ensuing damages sought for the breach are duplicative of the malpractice cause of action (see Alphas v Smith, 147 AD3d 557, 558-559 [1st Dept 2017] [where the court found that the relief sought in the fiduciary duty claim was identical to the legal malpractice claim as it sought similar damages]).

Even if the two causes of action are not duplicative, Supreme Court properly dismissed the breach of fiduciary cause of action. In the attorney liability context, the breach of fiduciary duty claim is governed by the same standard as a legal malpractice{**168 AD3d at 76} claim (see Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271-272 [1st Dept 2004]). Accordingly, to recover damages against an attorney arising out of the breach of the attorney’s fiduciary duty, plaintiff must establish the “but for” element of malpractice (see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 11 [1st Dept 2008]).”

It’s rare to see a Judiciary Law § 487 Claim; even rarer to see one that survives motion practice.  Gerard Fox Law, P.C. v Vortex Group, LLC  2019 NY Slip Op 32065(U)  July 9, 2019
Supreme Court, New York County  Docket Number: 654794/2018  Judge: Andrew Borrok is a case which makes the successful leap.

“This is an action for breach of fiduciary duty, fraud, negligent misrepresentation, and professional negligence brought by Gerard Fox Law, P.C. (Gerard Fox) against its former real
estate broker, the Vortex Group, LLC (Vortex). Vortex asserts counterclaims for fraud and
violation of Judiciary Law§ 487. Gerard Fox moves pursuant to CPLR §§ 3016 and 3211 (a) (7)
to dismiss Vortex’s counterclaims in their entirety. For the reasons set forth below, the motion is granted. ” [But read below]

“Second Counterclaim: Judiciary Law § 487 
To state a cause of action for violation of Judiciary Law § 487, a party must plead intentional
deceit and damages proximately caused by the deceit (Judiciary Law§ 487; Jean v Chinitz, 163
AD3d 497, 497 [1st Dept 2018]). To be actionable, the alleged deceit must have occurred during a pending judicial proceeding (US Suite LLC v Baratta, Baratta &Aidala LLP, 171AD3d551,  551 [1st Dept 2019]). Allegations of deceit or an intent to deceive must be stated with particularity (CPLR § 3016 [b]; Facebookv DLA Piper LLP (US), 134 AD3d 610, 615 [1st Dept
2015]). Where a cause of action under Judiciary Law§ 487 is based on allegations of false
statements in pleadings, a party may prevail by establishing that “the lawsuit could not have gone forward in the absence of the material misrepresentation, [and] that party’s legal expenses … may be treated as the proximate result of the misrepresentation” (Amaltifano v Rosenberg, 12 NY3d 8, 15 [2009]).

This counterclaim is based on Gerard Fox’s statements made in its complaint and in its
opposition to Kato’s motion for summary judgment in a related action (Answer, iJ 196). Vortex
asserts that Gerard Fox knowingly made several false statements concerning the underlying
events in this matter as contrived predicates for its claims with the intent to deceive the Court.
For example, Paragraph 2 of the Complaint provides:

Specifically, in the Fall of 2015, [Gerard Fox] sought to lease space with room for
five to six offices and a conference room, within its monthly budget of $28,000-
$30,000. [Gerard Fox] spelled out its needs and budget in writing, and reinforced
those points during lengthy face-to-face meetings. Vortex, however, had a
difference agenda. Viewing [Gerard Fox] as an out-of-town “yokel” it could work
for a fat commission, Vortex upsold [Gerard Fox] from the get-go. Vortex
exclusively presented options far outside of [Gerard Fox’s] price range, including
a space in “Tower 49,” located at 12 East 49th Street, New York, New York. To
encourage [Gerard Fox] to rent office space beyond its budget, Vortex represented
falsely that the rent was below-market and a great deal.

The documentary evidence reveals that these statements, which reflect the gravamen of Gerard Fox’s allegations, are not only misleading, but also demonstrably false. Vortex’s space report, which sets forth the properties that Vortex presented to Gerard Fox, illustrates that 10 of the 12 properties were within Gerard Fox’s stated budget (NYSCEF Doc. Nos. 28, 29). Therefore, this  lawsuit is premised on material misrepresentations of fact and, as a proximate result of those misrepresentations, Vortex was compelled to defend the action and incur legal fees. Assuming Vortex’s allegations to be true and affording Vortex every favorable inference, the counterclaim for violation of§ 487 is adequately pled to survive dismissal. “