Urias v Daniel P. Buttafuoco & Assoc., PLLC  2019 NY Slip Op 05180 Decided on June 26, 2019 Appellate Division, Second Department speaks about Judiciary Law § 487 and legal malpractice.  In this summary judgment case, the legal malpractice claims remain in view of opposing experts.  The JL claims are dismissed.

“The plaintiff commenced this action, inter alia, to recover damages for legal malpractice. The defendants Daniel P. Buttafuoco & Associates, PLLC, and Daniel P. Buttafuoco (hereinafter together the Buttafuoco defendants) represented the plaintiff in a medical malpractice action in Suffolk County, which resulted in a settlement agreement, and in which the Buttafuoco defendants were awarded a certain sum of attorney’s fees that was confirmed by the Supreme Court, Suffolk County. The defendant John Newman represented the plaintiff in a guardianship proceeding in Nassau County, which also resulted in an approval of the settlement and award of attorney’s fees in the medical malpractice action by the Supreme Court, Nassau County. In this action, the plaintiff alleges, among other things, that the Buttafuoco defendants and Newman were negligent in their representation of the plaintiff and that the Buttafuoco defendants committed fraud and violated [*2]Judiciary Law § 487 with respect to their recovery of attorney’s fees. The first through fifth causes of action seek damages from the Buttafuoco defendants, alleging a violation of Judiciary Law § 487, breach of fiduciary duty, breach of the retainer agreement, conversion of the settlement proceeds and fraud, and fraud, respectively. The sixth cause of action seeks damages from the Buttafuoco defendants and Newman for legal malpractice.”

“The second and third causes of action, which allege breach of fiduciary duty and breach of contract, respectively, were duplicative of the legal malpractice cause of action, since those causes of action are based on the same facts and do not allege distinct damages (see Pacella v Town of Newburgh Volunteer Ambulance Corps. Inc., 164 AD3d 809, 814; Balan v Rooney, 152 AD3d 733, 734; Ferrigno v Jaghab, Jaghab & Jaghab, P.C., 152 AD3d 650, 654; Federico v Brancato, 144 AD3d 965, 967). In addition, the first, fourth, and fifth causes of action, alleging a violation of Judiciary Law § 487, conversion of the settlement proceeds and fraud, and fraud, respectively, concern whether the Buttafuoco defendants engaged in fraudulent conduct in obtaining an award of attorney’s fees in the medical malpractice action. The plaintiff’s remedy for those alleged acts “lies exclusively in that lawsuit itself, i.e., by moving pursuant to CPLR 5015 to vacate the civil judgment due to its fraudulent procurement, not a second plenary action collaterally attacking the judgment in the original action” (Yalkowsky v Century Apts. Assoc., 215 AD2d 214, 215; see Chibcha Rest., Inc. v David A. Kaminsky & Assoc., P.C., 102 AD3d 544, 545; Parker & Waichman v Napoli, 29 AD3d 396, 399; North Shore Envtl. Solutions, Inc. v Glass, 17 AD3d 427). Accordingly, we agree with the Supreme Court’s determination granting those branches of the Buttafuoco defendants’ motion which were for summary judgment dismissing the first through fifth causes of action, and denying those branches of the plaintiff’s cross motion which were for summary judgment on the issue of liability on the second and third causes of action.

We also agree with the Supreme Court’s determination denying that branch of the plaintiff’s cross motion which was for summary judgment on the sixth cause of action, to recover damages for legal malpractice, insofar as asserted against the Buttafuoco defendants. There are conflicting opinions in the expert affirmations as to whether the Buttafuoco defendants failed to exercise the degree of reasonable skill and competence commonly possessed by an ordinary member of the legal profession and thereby caused harm to the plaintiff (see generally 762 Westchester Ave. Realty, LLC v Mavrelis, 167 AD3d 684, 685; Landa v Blocker, 87 AD3d 719, 722; Scartozzi v Potruch, 72 AD3d 787, 788).”

David A. Kaminsky & Assoc., PC v Brenner  2019 NY Slip Op 51028(U)  Decided on June 24, 2019  Appellate Term, First Department presents an unusual situation.  The Appellate Term recognizes that there is a viable legal malpractice claim, but allows summary judgment on fees to be affirmed.

“We sustain the grant of plaintiff’s motion for summary judgment in this action for unpaid legal fees. Plaintiff submitted evidence establishing the reasonable value of its services (see Kwangjin Song v Woods Oviatt Gilman LLP, 55 AD3d 1278 [2008]) and defendant failed to raise a triable issue of fact with respect to plaintiff’s entitlement to the fees sought (see DiPlacidi v Walsh, 243 AD2d 335 [1997]; Pirro & Monsell v Freddolino, 204 AD2d 613 [1994], lv dismissed 85 NY2d 903 [1995]). Nor is summary judgment precluded by defendant’s legal malpractice counterclaim, since the record shows that plaintiff performed a great deal of work that was unrelated to the isolated malpractice claim found viable by the court (see Emery Celli Brinckerhoff & Abady, LLP v Rose, 111 AD3d 453 [2013], lv denied 23 NY3d 904 [2014]; Morrison Cohen Singer & Weinstein v Ackerman, 280 AD2d 355, 356 [2001]).”

Legal malpractice is fascinating, in part, because of the wide range of underlying disputes in which it pops up.  Take for example the Manhattan apartment purchaser.  She wants city views.  She buys into an new development, and does so will prior to completion of the building.  What exactly are city views?  In this case her windows faced north and there were many buildings directly north of her.  There may have been 50 or more blocks of buildings north of her.  The most important were the next three buildings directly north of her.  Two were “low rise.”  Since change is constant in Manhattan real estate, she was worried that they might build up and completely block her view.   In the end it was a 12 story building three blocks north that was at issue.

Her apartment was on the 12th floor.  Would a 12 story building three blocks north ruin the view?  Widlitz v Douglas Elliman, LLC  2019 NY Slip Op 31737(U)  June 21, 2019
Supreme Court, New York County  Docket Number: 154689/2016 Judge: Arlene P. Bluth tells us that while this attorney gets out of the case, others might be liable in similar situations.

“Legal Malpractice
“In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any
damages, but for the lawyer’s negligence” (Rudolf v Shayne, Dachs, Corker & Sauer, 8 NY3d 438,
442, 835 NYS2d 534 [2007] [internal quotations and citations omitted]).

Plaintiff alleges that Lee committed malpractice by failing to inform her about the apartment’s views and because of Lee’s alleged failure to advise her about any rights to rescind the purchase  agreement. However, the deposition testimony and email exchanges between plaintiff and Lee indicate that plaintiff only asked Lee about any potential air rights that the neighboring buildings had and did not ask about the current status of the view of the apartment she was planning to purchase. Plaintiff states: “So I was concerned that the buildings next to the street, there are like two buildings further north on that street, they were low rise, but I was concerned that potentially one of those could be knocked down and something could be built. That is what I asked him [Lee] to investigate” (NYSCEF Doc. No. 164 at pgs. 87-88). Plaintiff only asked Lee about potential rights that these buildings had with respect to building more stories in the future. This is not the equivalent of asking Lee to investigate whether it was true that her apartment would have city
views.

Plaintiff’s testimony does not indicate that she ever asked Lee to ascertain what her apartment views would look like, nor does it indicate that Lee made any misrepresentations which caused plaintiff damages. ”

“This testimony indicates that plaintiff was concerned about possible changes to nearby buildings and wanted to determine whether either of the two low-rise buildings directly to her north (373 and· 375 Broadway) could be built up in the future (what “could change my view”). It does not indicate that plaintiff was concerned about the view her apartment would have upon completion. She never claims to have asked her lawyer to double-check Elliman’ s representations.  That makes sense: she claims she believed Elliman and the drone’s picture and asked her lawyer to investigate air rights of her neighbors between her building and 3 77 Broadway. She believed she had a view-she wanted her lawyer to make sure that view would stay. ”

“Plaintiffs next basis for legal malpractice is that Lee failed to timely inform her of her alleged right to rescind her purchase agreement on May 15, 2015. In an email sent to Lee, plaintiff expressed concern that the construction was taking too long and asked if she could get out of her contract to purchase the apartment. In response Lee told plaintiff that since her arrangement with Hashem was an assignment, they would have to talk to Hashem directly. But plaintiff does not show that she ever followed up to request that Lee communcate with Hashem to try to cancel the arrangement. Therefore, this cannot serve as a basis for legal malpractice. “

Too speculative is a defense commonly utilized by defendants in legal malpractice settings.  Here, in Birch v Novick & Assoc., P.C.   
2019 NY Slip Op 31712(U) June 14, 2019 Supreme Court, New York County Docket Number: 161445/13, Justice Carol R. Edmead discusses just how speculative they might be.

“Defendants argue that the complaint must be dismissed, as Plaintiff has not sustained any ascertainable damages. Weinblatt, one of the attorney’s Plaintiff hired after losing confidence in
Defendants, who is also a CPA, sent Plaintiff an email on November 21, 2012, stating that her share of her residuary estate, “based upon [Kappenberg] receiving no elective share” was “$1,800, 709 .11 “4 Plaintiff submits no competing computation of what Plaintiff would have been awarded if she successfully challenged Kappenberg’ s right of election.

Since Plaintiff ultimately received $2.3 in the settlement, Defendants argue that she cannot show actual damages. Hochberg_, Defendants’ counsel, opines: “Plaintiff received a surplus of approximately $500,000 as a result of the efforts of (Defendants] and co-counsel .. I am advised that … Plaintiff seeks … to recover legal fees she paid in the amount of $331,699.59 …. [T]aking Plaintiff’s claims at face value, the extra $500,00 [Defendants] obtained for Plaintiff more
than offsets the totality of the legal fees paid by the Plaintiff concerning the Underlying Matter” (NYSCEF doc No. 25-27).

Plaintiff, in opposition, argues that the 1.8 million estimate does not take into account the residual right that Plaintiff would have had in the $2.1 million trust in Kappen berg’s benefit provided for in the 2008 Will. Defendants, in reply, argue that the hypothetical worth of this residual right is impertnissibly speculative and”that Plaintiff waived her claim to any damages related to the residual right by not including it from its second amended damages chart.

Generally, a plaintiff in a legal malpractice action can recover for damages it expended – mitigating the damage of an attorney’s negligence (Kagan Lubic Lepper Finklestein & Gold v 325 Fifth Ave. Condominium, 2015 NY Slip Op. 31470[U] [Sup Ct, NY County, Kern, J][cognizable damages in a legal malpractice action include consequential damages sustained as a result of the attorney’s malpractice, including expenses such as experts fees and attorney’s fees”]). Here; as there are questions of fact relating to negligence, there are concomitant questions of fact related to consequential damages arising from the alleged negligence. That is, a factfinder could find that Defendants were negligent and that Plaintiff expended additional fees to remedy that negligence. In other words, a factfinder could find that, absent negligence, Plaintiff could have attained the $2.3 settlement without having to hire additional attorneys.

Moreover, it would it would be error for the court to determine that Plaintiff could not establish damages based on Weinblatt’s estimate as to the amount Plaintiff would have received under the 2008 Will and the $2.3 million Plaintiffinherited under the settlement. While Defendants argue that Plaintiffs residual right tO’the Kappenberg trust provided for in the 2008 Will is too speculative to serve as a Qasis to deny summary judgment, the estimate that Defendants rely on is also, fundamentally, speculative. Moreover, the question of whether Plaintiff waived any damages claim based on this residual right is a question best reserved for the factfinder. As questions of fact as to damages remain, the branch of Defendants’ motion that seeks dismissal of the complaint as Plaintiff cannot show actual damages must be denied.  “

We have argued that legal malpractice cases are disproportionately subject to early dismissal. Our theory is that Courts have an inherent and innate bias in favor of attorneys.  There is a plethora of academic and real world experience to support this thesis.  Anecdotally, Baugher v Cullen & Dykman, LLP  2019 NY Slip Op 04904  Decided on June 19, 2019  Appellate Division, Second Department is no real surprise.

“The plaintiff commenced this action in 2016 to recover legal fees paid by the plaintiff’s decedent to the defendant, a law firm, for legal services performed between January 2007 and August 2009, on the ground that the defendant’s representation of the decedent, the decedent’s estate, and nonparty W.S. Wilson Corporation (hereinafter Wilson) during that period of time violated rule 1.7 of the Rules of Professional Conduct (22 NYCRR 1200.0). The complaint alleged that the plaintiff’s decedent retained the defendant in 2005 to, among other things, analyze her ownership interest in Wilson, including her right to certain retained earnings in the sum of $20 million. The complaint further alleged that, in January 2007, the defendant began acting as Wilson’s corporate counsel, and, beginning in 2008, performed legal services for Wilson regarding the decedent’s right to those retained earnings. The complaint also alleged that the decedent died in November of 2008, and that in 2009 the plaintiff, represented by the defendant, commenced a turnover proceeding against Wilson on behalf of the decedent’s estate for the retained earnings. The complaint alleged that Wilson moved in that proceeding to disqualify the defendant from acting as counsel for the decedent’s estate, and that, by order dated January 18, 2012, the Surrogate’s Court, inter alia, disqualified the defendant from representing the decedent’s estate in that proceeding on the ground that its prior representation of the decedent was in conflict with its prior representation of Wilson.

The defendant moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint, arguing that the plaintiff could not recoup legal fees absent actual damages sustained as a result of the alleged misconduct. By order entered November 10, 2016, the Supreme Court determined that the complaint failed to state a cause of action, and granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint. By judgment entered November 14, 2016, the complaint was dismissed. In an order entered April 3, 2017, the court denied the plaintiff’s motion for leave to reargue his opposition to that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. The plaintiff appeals.

We disagree with the Supreme Court’s determination granting that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. On a motion to dismiss pursuant to CPLR 3211, the complaint is to be afforded a liberal construction (see CPLR 3026). “In reviewing a motion pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action, the facts as alleged in the complaint must be accepted as true, the plaintiff is accorded every possible favorable inference, and the court’s function is to determine only whether the facts as alleged fit within any cognizable legal theory” (Mendelovitz v Cohen, 37 AD3d 670, 671; see Belling v City of Long Beach, 168 AD3d 900).

“An attorney who violates a disciplinary rule may be discharged for cause and is not entitled to fees for any services rendered” (Jay Dietz & Assoc. of Nassau County, Ltd. v Breslow & Walker, LLP, 153 AD3d 503, 506; see Matter of Montgomery, 272 NY 323, 326; Saint Annes Dev. Co. v Batista, 165 AD3d 997, 998; Doviak v Finkelstein & Partners, LLP, 90 AD3d 696, 699; Quinn v Walsh, 18 AD3d 638; Brill v Friends World Coll., 133 AD2d 729). A cause of action for forfeiture of legal fees based on an attorney’s discharge for cause due to ethical violations may be maintained independent of a cause of action alleging legal malpractice or breach of fiduciary duty, and does not require proof or allegations of damages (see Jay Dietz & Assoc. of Nassau County, Ltd. v Breslow & Walker, LLP, 153 AD3d at 506; Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1).

Here, the complaint seeks forfeiture of legal fees paid to the defendant between January 2007 and August 2009 in connection with the plaintiff’s decedent’s claim against Wilson for retained earnings. The complaint alleges that the decedent retained the defendant in January 2007 to recoup the retained earnings from Wilson, that the defendant also represented and performed legal work for Wilson on that issue between 2008 and 2009, that the interests of the decedent and Wilson on that issue were adverse, and that the dual representation violated rule 1.7 of the Rules of Professional Conduct (22 NYCRR 1200.0). The complaint further alleged that, as a result of its previous dual representation, the defendant was disqualified from representing the decedent’s estate [*2]in a 2009 turnover proceeding against Wilson to collect the retained earnings. Contrary to the determination of the Supreme Court, these allegations are sufficient to state a viable cause of action to disgorge legal fees (see Jay Dietz & Assoc. of Nassau County, Ltd. v Breslow & Walker, LLP, 153 AD3d at 506).”

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). “