A motion in limine is an advisory pre-trial evidentiary ruling.  A motion for summary judgment is a dispositive motion which seeks to limit a claim or a recovery.  In Mazzurco v Gordon  2019 NY Slip Op 04931  Decided on June 19, 2019  Appellate Division, Second Department the motion in limine succeeded.

“In this action to recover damages for legal malpractice, the plaintiff alleges that the defendants failed to properly advise him and to protect his rights in an underlying mortgage foreclosure action, leading to the sale of his property at an auction. The matter was scheduled for trial, and after jury selection, the Supreme Court granted the defendants’ application to preclude the plaintiff from calling certain fact witnesses due to discovery violations. The defendants then moved, with the court’s permission, for summary judgment dismissing the complaint, contending that the plaintiff would be unable to meet his prima facie burden in the action in light of the court’s preclusion of the fact witnesses. The court denied the motion, and the defendants appeal.

In moving for summary judgment dismissing a complaint alleging legal malpractice, a defendant must present evidence establishing, prima facie, that it did not breach the duty to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, or that the plaintiff did not sustain actual and ascertainable damages as a result of such deviation (see Panos v Eisen, 160 AD3d 759, 759-760; Lever v Roesch, 101 AD3d 954, 955).

Here, the defendants failed to meet their initial burden on their motion. The defendants sought to establish their prima facie entitlement to judgment as a matter of law by relying on the Supreme Court’s preclusion order, but they failed to demonstrate, prima facie, that the plaintiff could not meet his burden of proof at trial through evidence other than the precluded fact witnesses. To the contrary, the defendants’ own motion papers demonstrated the availability of other proof on which the plaintiff could rely at trial. Accordingly, we agree with the court’s determination to deny the defendants’ motion for summary judgment dismissing the complaint, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).”

The question of statute of limitations in a professional negligence setting is little different from that the same issue in a legal malpractice setting.  CPLR 214(6) is the applicable statute in both and both have the concept of continuing representation. Board of Mgrs. of 141 Fifth Ave. Condominium v 141  Acquisition Assoc. LLC  2019 NY Slip Op 31555(U)  June 3, 2019
Supreme Court, New York County Docket Number: 651426/2013  Judge: Saliann Scarpulla discusses it here:

“On a motion to dismiss a claim pursuant to CPLR 3211 (a) (5), the defendant bears the “initial burden of establishing, prima facie, that the time in which to sue has expired.” New York City Sch. Constr. Auth. v Ennead Architects LLP, 148 AD3d 618, 618 (1st Dept 2017) (internal quotation marks and citation omitted). “[T]he three-year limitation of CPLR 214 (6) controls in a negligence action against a professional, such as an architect or engineer.” !FD Constr. Corp. v Corddry Carpenter Dietz & Zack, 253 AD2d 89, 91-92 (1st Dept 1999). The claim “accrues when the professional relationship ends, usually upon issuance of the final payment certificate under the contract.” Id. at 92; see also New York City Sch. Constr. Auth., 148 AD3d at 618. “If the action is commenced after the statute of limitations expires, a plaintiff may be able to avoid dismissal by asserting that the statute of limitations is tolled by the continuous representation doctrine, or at least showing that there is an issue of fact as to its application[.]” Sendar Dev. Co., LLC v CMA Design Studio P.C., 68 AD3d 500, 503 (1st Dept 2009). The doctrine of continuous representation “applies when a plaintiff shows that he or she relied upon an uninterrupted course of services related to the particular duty breached.” Id. ”

“In opposition, J Construction fails to raise a question of fact as to whether the statute of limitations for professional negligence was tolled or is otherwise inapplicable. It simply argues that, in light of Board of Manager’s allegation that, as of 2014, work on the Building was ongoing, discovery may reveal that GACE and MG continued to provide services beyond the dates of their purported final invoices. J Construction’s unsupported surmise is insufficient to defeat the motions to dismiss, as there is no indication that GACE or MG were part of such work. “If the statute is to be avoided, there should be some factual demonstration in the answering papers.” Sparacino, 82 AD2d at 753 (rejecting plaintiff’s contention that dismissal on statute oflimitations grounds was premature). “

As proof that Judiciary Law § 487 has entered the mainstream, and will likely be snapchatted soon,  take a look at Delbaun v Self Represented Kevin McKeown  May 30, 2019  Supreme Court, New York County Docket Number: 157986/2018 Judge: Andrew Borrok.  First, the names.  Is the caption not a tip off that this is a case with craziness in it?  Second, the cause of action.  Defendant would not return a book?

OK.   How did these folks know about JL § 487?

“This action arises from a dispute over Mr. McKeown’s use of a copyrighted book (the Book), coauthored by Mr. Delbaum and Lawrence Fleischer. The complaint alleges that Mr. McKeown
offered to help Mr. Delbaum prepare a publication proposal for the Book. Mr. Delbaum
accepted the offer and provided Mr. McKeown with a copy of the Book. Mr. Delbaum asserts
that Mr. McKeown did not perform the work as promised and Mr. McKeown did not return the
Book on request. As a result, Mr. Delbaum commenced this action for a permanent injunction, conversion, breach of contract, breach of the implied covenant of good faith and fair dealing and unjust enrichment. ”

“The third counterclaim alleges that Mr. Delbaum violated Judiciary Law § 487 and seeks an
order ofreferral to the Appellate Division, First Department, Attorney Grievance Committee (id.,
iii! 102-106). Mr. McKeown’ s third counterclaim fails to state a cause of action because
Judiciary Law § 487 is not applicable when Mr. Delbaum is a party to this action and represented
by counsel (see Siller v Third Brevoort Corp., 145 AD3d 595, 596 [1st Dept 2016] [affirming the
trial court’s dismissal of a claim that an individual violated Judiciary Law § 487 by making false
and misleading statements in an affirmation because the individual was a party to the action who
was represented by counsel, and not acting in her capacity as an attorney]). Mr. McKeown’s
arguments in opposition are unavailing. Therefore, Mr. McKeown’s three counterclaims are
dismissed. “

Owner A performs work in a NYC building.  Owner B is damaged.  Owner B sues Owner A as well as the building.  Lots of attorney fees are generated.  Owner B then sues the attorneys for the Board for legal malpractice.  Standing?  No.  Derivative claim on behalf of the Board.  No.  Second chance? Yes.

“This action arises from certain work performed pursuant to a certain Alteration Agreement (the
Alteration Agreement), dated January 2004, by and between Sandra Nunnerly and the Board of
Directors for 36 East 69th Corp. (the Board). ”

“When Ms. Nunnerley performed the work contemplated by the Alteration Agreement, damage
was incurred by Virginia Witbeck. Ms. Witbeck brought a lawsuit (the Underlying Lawsuit)
captioned Virginia Witbeck v. Sandra Nunnerley et al., Index No. 115086/2005 as against Ms.
Nunnerley, 36 East 39th Corp (the Co-op), Alexander Wolfe and Company, Inc. and TDC
Construction Inc (id., if 17). The Underlying Lawsuit was settled for $15,000 and the attorneys’
fees incurred were allegedly in excess of $150,000 (id., if 25). Significantly, at no time has the
Co-op made a demand that Ms. Nunnerly reimburse the Board for its $150,000 legal bill. Nor
has Ms. Jarmuth requested that the Board make any such demand. Instead, Ms. Jarmuth
commenced this action individually and derivatively on behalf of the Co-op for legal
malpractice, breach of contract and tort for breach of ethics concerning the Defendants’
representation of the Co-op in the Underlying Lawsuit. ”

“To the extent the claim is asserted by Ms. Jarmuth individually against the Defendants, Ms.
Jarmuth has no standing as an unrelated third party (see Green v Fischbein, Olivieri, Rozenholc
& Badillo, 135 AD2d 415, 418 [1st Dept 1987] [holding that “[u]nder New York law an attorney
generally cannot be held liable to third parties for actions taken in furtherance of his role as
counsel unless it is shown that he ‘did something either tortious in character or beyond the scope
of his honorable employment.”‘]). To the extent that the claim against the Defendants is made
derivatively on behalf of the Co-op, Ms. Jarmuth has not complied with BCL § 626( c) which
requires that shareholder derivative actions “set forth with particularity the efforts of the plaintiff
to secure the initiation of such action by the board or the reasons for not making such effort.”
While Ms. Jarmuth has pled that she serviced a notice on members of the Board regarding “legal
malpractice by the Wagner Berkow attorneys with regard to advice given and the action taken as
it pertained to a certain litigation brought by Virginia Witbeck against Sandra Nunnerley 36 East
69111 Owners Corp. and TD Construction Inc.” (NYSCEF Doc. No 1, if 3), there is no evidence
that the Board made a demand for reimbursement from Ms. Nunnerley or that Ms. Jarmuth
demanded that the Board should do so, accordingly, Ms. Jarmuth’s first cause of action for legal
malpractice is dismissed without prejudice. For the avoidance of doubt, should Ms. armuth demand that the Board seek reimbursement from Ms. Nunnerley, and should the Board refuse to
seek reimbursement from Ms. Nunnerley, Ms. Jarmuth is not precluded from seeking alternative
derivative relief.”

The Appellate Division gave explicit advice, not often heard, on how to deal with an Order to Show Cause which a judge declines to sign.  In the end, everyone seems to have done it wrong.  In Cypress Hills Mgt., Inc. v Lempenski  2019 NY Slip Op 04677  Decided on June 12, 2019
Appellate Division, Second Department waded into the swamp:

“After defaulting in this action, the defendant attempted to move by order to show cause to vacate his default, asserting that the Supreme Court did not have jurisdiction over him because he had never been served. The Supreme Court, Kings County (Devin P. Cohen, J.), did not sign the order to show cause, but nevertheless purported to deny the application on the merits in an order dated July 5, 2017. The defendant then filed a second order to show cause, seeking the same relief as his prior application. The Supreme Court, Kings County (Lawrence Knipel, J.), signed the order to show cause and allowed the motion to proceed. However, the court subsequently denied the motion on the ground that it could not overrule the decision of another Supreme Court Justice. The defendant appeals.

By declining to sign the first order to show cause, Justice Cohen, in effect, refused to permit the defendant to bring on that motion seeking to vacate his default. Consequently, the order dated July 5, 2017, purporting to deny that motion on the merits, was improper because there was no pending motion. While the defendant could have sought to have this Court review Justice Cohen’s refusal to sign the order to show cause (see CPLR 5704[a]; Matter of Greenhaus v Milano , 242 AD2d 383), he instead chose to simply re-apply for an order to show cause before a different Supreme Court Justice. One Supreme Court Justice should not sign an order to show cause refused by a colleague, assuming that the supporting papers are the same. Nevertheless, under the circumstances of this case, the order to show cause having been signed by a different Supreme Court Justice, the motion thus allowed should have been determined on its merits as the order dated July 5, 2017, did not represent the determination of a prior motion by a Justice of coordinate jurisdiction.

The procedural morass which occurred here is the result of two fundamental errors. [*2]First, a court which declines to sign an order to show cause, and thus refuses to allow that motion to be made, should not proceed to act as if the motion had in fact been made. If the court declines to sign an order to show cause, that is all it should do. Second, a remedy of a party whose proposed order to show cause has been refused is to seek relief from the Appellate Division pursuant to CPLR 5704(a). The remedy is not to simply re-submit the same application to the same or a different Supreme Court Justice.”

Dillon v Peak Envtl., LLC  2019 NY Slip Op 04548  Decided on June 7, 2019  Appellate Division, Fourth Department is the story of an upstate commercial case which went through a lot of procedural wrangling, up to the Appellate Division, with little forward movement.  Legal malpractice is an important but not properly plead part.

“Memorandum: Plaintiffs commenced this action against defendants-third-party plaintiffs (third-party plaintiffs) seeking damages for, inter alia, fraudulent inducement and breach of contract. Third-party plaintiffs subsequently commenced this third-party action against third-party defendants, i.e., the law firm and the individual attorney representing plaintiffs in the main action. Third-party plaintiffs now appeal from an order that, inter alia, granted the motion of third-party defendants to dismiss the third-party complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7) and denied the cross motion of third-party plaintiffs seeking to disqualify third-party defendants from acting as counsel to plaintiffs in the main action. We affirm.”

“Further, although the third-party complaint alleges in support of third-party plaintiffs’ contribution claim that plaintiffs sustained damages as a result of legal malpractice committed by third-party defendants, the third-party complaint does not allege that third-party plaintiffs sustained damages as a result thereof (cf. Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d 377, 380-381 [1992], rearg denied 81 NY2d 955 [1993]). To the extent that third-party plaintiffs’ submission of extrinsic evidence purporting to support a direct claim of legal malpractice could have been construed by the court as a request for leave to amend their third-party complaint, such a request was properly denied because third-party plaintiffs’ new claim is patently lacking in merit (see Broyles v Town of Evans, 147 AD3d 1496, 1497 [4th Dept 2017]). Third-party plaintiffs’ contention that they relied to their detriment on an email from third-party defendant Camille T. Kahler regarding the terms of the agreement between plaintiffs and third-party plaintiffs is belied by third-party plaintiffs’ own correspondence.”

It seems as if the Appellate Division scratched its head on this claim of legal malpractice.  It seemed not sure how to calculate the claimed departure from good practice.  In Kaplan v Conway & Conway  2019 NY Slip Op 04477  Decided on June 6, 2019  Appellate Division, First Department it questioned the foundation of the legal malpractice case.

“The motion court properly granted defendants’ motion to dismiss. The complaint alleged that defendants committed legal malpractice by failing to timely advocate for a “formal closure” of a “sham” internal investigation instigated by plaintiffs’ employer, or to secure “more favorable language” in the FINRA U-5 Forms that were filed upon plaintiffs’ voluntary resignation. As a result of defendants’ alleged negligence, plaintiffs claim that they were subject to a FINRA investigation and “reputational damage.” Given the vague, speculative, and conclusory nature of these allegations, plaintiffs failed to allege facts that “fit into any cognizable legal theory” (see Nonnon v City of New York, 9 NY3d 825, 827 [2007], quoting Leon v Martinez, 84 NY2d 83, 87-88 [1994] [internal quotation marks omitted]).

Moreover, emails submitted by defendants show that the law firm did advocate for plaintiffs’ employer to include language on the U-5 Forms indicating that any allegations against plaintiffs were unsubstantiated, and plaintiffs’ employer refused, calling such language a “non-starter.” Defendants also drafted a “Broker Comment,” which would have provided plaintiffs’ rebuttal to the negative information included on their U-5 Forms, but, according to defendants, plaintiffs would not discuss or approve the comment. It is undisputed that, prior to their voluntary resignation, plaintiffs were on administrative leave and already suffering damages in the form of loss of business and reputational damage. Accordingly, plaintiffs have no cause of action to recover damages for legal malpractice as they cannot demonstrate that defendants were negligent in their representation, or that such negligence proximately caused the alleged damages (see Rudolf v Shayne, supra; Weil v Fashion Boutique, supra).”

Let’s assume that an attorney fails to make sure that there is a certificate of occupancy for the finished version of a home, and then a tree falls on the house, do we know enough to determine whether there was legal malpractice?  We fall into a familiar trap if our analysis ends with identification of a departure.  We must go on to reason whether the departure led to a bad proximate result.  In Nill v Schneider  2019 NY Slip Op 04392  Decided on June 5, 2019
Appellate Division, Second Department, there was a departure, but the Court found no proximate damage.  It appears that the homeowner got the insurance nevertheless and the certificate of occupancy nevertheless.

“In September 2010, the plaintiff entered into a contract to purchase a one-family home in Stony Brook (hereinafter the subject property) for the sum of $495,000, to be paid in cash. The plaintiff retained the defendant Isabel A. Schneider (hereinafter the defendant) to handle the transaction. The contract required the sellers to deliver a “certificate of occupancy, certificate of existing use or completion . . . for [a] 1 Family dwelling plus deck” prior to the closing. The contract also recited that the plaintiff had inspected the subject property, agreed to take it “as is,” and had not relied upon any representations made by the sellers concerning “any matter or thing affecting or relating to the [subject property].” The defendant obtained a title report, which included a certificate of existing use dated January 15, 1975, for a “1½ story 1 family residence . . . and deck,” and a survey of the subject property from 1974. The title report also included a survey of the subject property dated July 17, 2007, and a survey inspection report dated September 21, 2010.

The closing was held on September 27, 2010. On or about October 30, 2012, during Hurricane Sandy, a tree was uprooted and fell on the subject property, causing substantial damage to the sunroom (hereinafter the Florida room), the deck, and the master bedroom. At her deposition, the plaintiff testified that when the “hundred-foot tree” fell on the subject property, it “came from the side of [her] bedroom, so it took out [her] gable in [her] bedroom, then it went across the [Florida room] and it shattered the roof there, and then it went across the deck and it broke the deck, and then it laid down on the . . . back property line.” The plaintiff called her homeowner’s insurance carrier the next day, made a claim under her homeowner’s insurance policy (hereinafter the policy) for the property damage, and retained an architect to prepare plans for the reconstruction work. Thereafter, the plaintiff was allegedly told by the architect that the Florida room did not have a certificate of occupancy. It is undisputed that the plaintiff subsequently obtained certificates of occupancy for, [*2]inter alia, the Florida room and the deck. The construction work was completed in around June 2015. The plaintiff was reimbursed under the policy for, among other things, the architect fee, the cost of the survey, the permit fee, and the cost of the certificates of occupancy.

The plaintiff commenced this action against, among others, the defendant, to recover damages for legal malpractice, alleging that the defendant was negligent in failing to discover that certain structures on the subject property did not have certificates of occupancy. In particular, she asserted that the 2007 survey of the subject property, as compared to the certificate of existing use, showed the addition of, inter alia, the Florida room, the deck, and “the extension of the southern wall in the master bedroom.” The plaintiff subsequently moved for, inter alia, summary judgment on the issue of liability, and the defendant cross-moved for summary judgment dismissing the amended complaint insofar as asserted against her. By order dated November 14, 2016, the Supreme Court denied the plaintiff’s motion and granted the defendant’s cross motion. The plaintiff appeals. We affirm.”