Whether it’s social policy, whether it’s an attempt to prevent every case from turning into a legal malpractice coda, the rule is simple:  absent fraud, collusion, malice or other special circumstances you just cannot successfully sue the other guy’s attorney.  The alternative?  Every case would then proceed to a legal malpractice case.  So says Hinnant v Carrington Mtge. Servs., LLC  2019 NY Slip Op 03575  Decided on May 8, 2019  Appellate Division, Second Department along with hundreds of other cases.

“In March 2015, the plaintiffs executed a consolidated note in favor of the defendant Carrington Mortgage Services, LLC (hereinafter Carrington), in the sum of $715,533, which was secured by a consolidated mortgage on the plaintiffs’ property in Brooklyn. In March 2016, the plaintiffs commenced this action against, among others, the defendant Jeffrey Leavitt, the settlement agent for Carrington, seeking to recover damages for fraud and professional negligence. The plaintiffs alleged that while the consolidated note stated that their monthly mortgage payment would be $3,364.70, their monthly mortgage payment was, in fact, approximately $4,500. The plaintiffs alleged, among other things, that Leavitt ignored the fact that “the monthly mortgage payments expected from the Plaintiffs [were] not consistent with the principal as it appeared on the initial monthly mortgage obligation and the subsequent . . . Consolidated Agreement,” and that Leavitt failed to point out these inconsistencies to the plaintiffs. Leavitt moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him. The Supreme Court denied Leavitt’s motion, and Leavitt appeals.”

“Absent fraud, collusion, malicious acts, or other special circumstances, an attorney is not liable to third parties not in privity, or near-privity, for harm caused by professional negligence (see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 595; Fredriksen v Fredriksen, 30 AD3d 370, 372; Rovello v Klein, 304 AD2d 638; Conti v Polizzotto, 243 AD2d 672). Here, even accepting the facts alleged in the complaint as true, the complaint fails to allege the existence of an attorney-client relationship, privity, or a relationship that otherwise closely resembles privity between the plaintiffs and Leavitt (see DeMartino v Golden, 150 AD3d 1200, 1201; Fredriksen v Fredriksen, 30 AD3d at 371-372; Goldfarb v Schwartz, 26 AD3d 462, 463; Rovello v Klein, 304 AD2d at 638-639). Furthermore, the complaint does not contain specific allegations that would place the plaintiffs within an exception to the privity requirement (see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d at 595; Fredriksen v Fredriksen, 30 AD3d at 372). The complaint fails to set forth evidentiary facts demonstrating that Leavitt was a participant with Carrington in a common scheme or plan to defraud the plaintiffs, or otherwise aided and abetted Carrington in the commission of fraud (see Fredriksen v Fredriksen, 30 AD3d at 372; Goldfarb v Schwartz, 26 AD3d at 463-464).

Furthermore, the documentary evidence submitted by Leavitt in support his motion utterly refuted the plaintiffs’ factual allegations, and conclusively established a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326). Specifically, Leavitt submitted an acknowledgment dated March 14, 2015, signed by the plaintiffs in connection with the consolidated mortgage transaction, which stated: “The undersigned further acknowledge that Jeffrey H. Leavitt, Esq., P.C. represents the Lender in this transaction, that the parties have not been given nor are relying on any legal advice given by Jeffrey Leavitt, Esq. and that no attorney/client relationship exists between the Borrowers and Jeffrey H. Leavitt, Esq., P.C.” Additionally, Leavitt submitted, among other things, the consolidated note and consolidated mortgage, which both stated that the monthly payment of principal and interest, in the amount of $3,364.70, would be just part of a larger monthly payment required by the security instrument, which would include taxes, insurance, and other charges.”

Delay in obtaining adverse evidence and overbilling are both claimed in Ostrolenk Faber LLP v Sakar Intl., Inc.  2019 NY Slip Op 31303(U)  April 23, 2019  Supreme Court, New York County
Docket Number: 657134/17 Judge: Melissa A. Crane.  Only one of the claims works in a legal malpractice setting.  It is not overbilling.

Plaintiff Ostrolenk Faber LLP (Ostrolenk), a law firm specializing in intellectual property, brings this action against its former client, Sakar International, Inc. (Sakar), to collect on outstanding invoices, totaling $259,841.20 plus interest. The four-count complaint asserts causes of action for breach of implied contract, account stated, quantum meruit, and unjust enrichment. In its answer, Sakar asserts several affirmative defenses and counterclaims for improper billing and malpractice (first and second counterclaims, respectively).”

“Of the $259,841.20 that Ostrolenk seeks in this action, approximately $240,000 relates to a patent infringement lawsuit, entitled Voltstar Tech., Inc. v Office Depot, Inc. (civil case No. 9: 15-cv-81190) and commenced in the United States District Court for the Southern District of Florida on August 21, 2015 (Underlying Action). 1 In that action, Voltstar Technologies, Inc. (Voltstar) alleged that a product that Sakar manufactured and sold to Office Depot, Inc. (Office Depot) infringed Voltstar’s patent. Ostrolenk represented Office Depot in the Underlying Action, at Sakar’s expense. ”

In addition, Sakar avers that “[Voltstar] settled for only $30,000 after [Ostrolenk] belatedly located ‘prior art’ (earlier patents) that invalidated [Voltstar’s] patent” and that “[Ostrolenk] reasonably should have located that prior art at the commencement of the Underlying Action and not after expending hundreds of thousands of dollars in unnecessary legal fees and expenses.” Id.,~ 46. Sakar alleges that “an attorney practicing in [Ostrolenk’s] specialty exercising reasonable skill and produce [sic] would have found such prior art promptly” (id.,~ 55) and that Ostrolenk’s failure to do so at the outset of the Underlying Action resulted in over $400,000 in fees and expenses.”

“Generally, allegations of improper billing, without more, are insufficient to state a claim for malpractice. See Chowaiki & Co. Fine Art Ltd. v Lacher, 115 AD3d 600, 601 (1st Dept 2014)
(finding that “[p]laintiffs’ claims of excessive billing and related conduct, which actions [were] not alleged to have adversely affected their claims or defenses in the underlying action, [did] not
state a claim for legal malpractice”); see also Gottlieb, Rackman & Reisman, P. C. v Zencolor
Corp., 2015 WL 4206982, *6, 2015 US Dist LEXIS 90345, *14 (SD NY, July 10, 2015, No. 13-
CV-5715 (JGK]) (finding that “allegations of improper billing-standing alone-[ did] not state a
claim for legal malpractice,” where former client “[did] not allege that but for this improper
billing, its patent applications would have been approved”); Byrne & Storm, P.C. v Handel, 2013
WL 2444092, *4, 2013 US Dist LEXIS 78708, *14-15 (ND NY, June 5, 2013, No. 1:12-CV-716
[GLS/RFT]) (finding “no support for the proposition that overbilling by itself ‘constitute[s] an
act oflegal malpractice”‘). ”

“Here, accepting the counterclaim’s allegations as true and according Sakar the benefit of
every favorable inference, Sakar states a claim for legal malpractice. The answer specifically
alleges that Ostrolenk “reasonably should have located [the] prior art at the commencement of
the Underlying Action” (answer, ,-i 46) and that its failure to do so constitutes malpractice. Id., ,-i
55. In addition, the answer alleges that the discovery of this prior art resulted in a favorable
settlement of the Underlying Action, which could have been accomplished sooner had Ostrolenk
been more prompt in conducting the prior art search. See id, , 46. Sakar is, therefore, not
merely second-guessing Ostrolenk’s litigation strategy and speculating about alternative results,
which would be insufficient to state a malpractice claim. See Dweck Law Firm, 283 AD2d at
293 (“[a]ttorneys may select among reasonable courses of action in prosecuting their clients’
cases … so that a purported malpractice claim that amounts only to a client’s criticism of
counsel’s strategy may be dismissed”). “

What could be more New York than a case about real estate and parking?  Here, the problem was construction of two homes, each of which required off-street parking.  The seller set up a situation in which both houses had the parking, but it all got screwed up.

Muco v Sadiku  2019 NY Slip Op 50709(U)  Decided on May 9, 2019  Supreme Court, Queens County Butler, J is the story of the two purchasers suing each other and every one else too.

“This action concerns two premises: (1) 60-28 60th Place, Maspeth, New York (the Muco premises or the first premises ) and (2) 60-34 60th Place, Maspeth, New York (the Sadiku premises or the second premises). The Mucos claim that the Sadikus are depriving them of an alleged easement burdening the latter’s property which permits the former to use two parking spaces.

Defendant/third party defendant/fourth party plaintiff 60th Court Maspeth LLC (60th Court) is the developer and seller of the two subject premises. Defendant 60th Court hired Vintage Homes, Inc. (Vintage), whose President is Danny Zivan, to serve as a construction manager and representative.

In order to obtain permits to construct the homes on the subject premises, defendant 60th Court had to show it would provide each of them with two off-street parking spaces. The Muco premises was not spacious enough for parking spaces, so defendant 60th Court decided to burden the Sadiku premises with an easement in favor of the Muco premises.

Acting as the representative of 60th Court, Vintage, by Zivan, retained fourth party defendant Rothkrug, Rothkrug & Spector LLP (RRS), a law firm, to prepare an instrument creating a permanent easement benefitting the Muco premises and burdening the Sadiku premises with two parking spaces and a means of access over the latter property from the public street known as 60th Court. RRS alleges that the instrument was merely intended to satisfy NYC Department of Buildings (DOB) requirements concerning construction permits and that the instrument contained no errors of omission or commission.

On February 5, 2009, 60th Court executed a Driveway Space Restrictive Declaration (the Declaration) prepared by RRS. The Declaration provided for an easement allowing ingress and egress over the Sadiku property to and from 60th Court, but did not expressly provide that the current and future owners of the Muco premises were to have exclusive use of two parking spaces on the Sadiku premises. The Declaration was recorded against the two properties on February 17, 2009 in the City Register’s Office.”

“The fourth party complaint brought against defendant Pacht is for legal malpractice. In an action to recover damages for legal malpractice, “a plaintiff must establish 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 ***” ( Island Properties & Equities, LLC v Cox, 93 AD3d 639, 640 [2d Dept 2012]; McCoy v Feinman, 99 NY2d 295 [2002]; Cosmetics Plus Grp., Ltd. v Traub, 105 AD3d 134[1st Dept 2013]; Fireman’s Fund Ins. Co. v Farrell, 57 AD3d 721 [2d Dept 2008]).

Pacht, denying that his actions or omissions could have been the proximate cause of any injury sustained by the Sadiku’s or 60th Court, purports to have made a prima facie showing of entitlement to summary judgment dismissing the fourth party complaint by (1) the submission of evidence in the record that Zivan and Demkowics informed the Sadikus before they closed title about the parking easement and (2) an interpretation of the Declaration as granting a parking easement. As to the first ground, the transcripts of the deposition testimony submitted in support of the cross motion contain conflicting versions of the events that occurred prior to the closing of title on the Sadiku premises, raising triable issues of fact, and, thus, Pacht failed to demonstrate a prima facie entitlement to judgment as a matter of law (see Stafford v Allied Bldg. Prod. Corp., 164 AD3d 1398[2d Dept 2018] [failure to make prima facie showing because of conflicting versions of traffic accident]). As to the second ground, this court has previously held that there is an issue of fact as to the meaning and intent of the Declaration. Moreover, Pacht did not rebut additional allegations of malpractice made against him: (1) that although he received a copy of the title report ordered by the Sadikus before they closed title, he failed to bring to the attention of the title company or the attorney for the Sadikus the existence of the Supplemental Declaration, and (2) that he failed to identify the easement on the deed he drew conveying title to the Sadikus.

Pacht is not entitled to summary judgment dismissing the fourth party complaint and all other claims against him.”

“COM did make a prima facie showing that the Sadikus did not sustain any damages. The Sadikus purchased their premises on October 4, 2010 for $690,000.00. COM submitted an appraisal of the Sadiku property as encumbered by the parking easement rendered by Victor Schlesinger of Republic Valuations which concludes that on October 4, 2010, the Sadkiu premises were worth $690,000.00 even as encumbered by the parking easement.

The burden on COM’s cross motion shifted to the Sadiku’s, requiring them to submit evidence showing that there is an issue of fact which must be tried (see Alvarez v Prospect Hospital, supra). They successfully sustained this burden. In regard to the element of actual and ascertainable damages, the Sadikus submitted an appraisal report from Matthew J. Guzowski, the President of Goodman-Marks Associates, Inc., and an affidavit from him which states: “We have determined that the subject property with the easement in place suffers a diminution in value due to the hypothetical easement being contested.” The conflicting affidavits of experts preclude summary judgment (see Haas v F.F. Thompson Hosp., Inc., 86 AD3d 913 [4th Dept 2011]; Florio v Kosimar, 79 AD3d 625 [1st Dept 2010]).

COM is not entitled to summary judgment dismissing the third party complaint and other claims against it.”

A real estate deal gone wrong…what could be more New York than that?  In our world, only a legal malpractice claim after the deal is more relevant.

83 Willow, LLC v Apollo 2019 NY Slip Op 31203(U)  May 2, 2019 Supreme Court, New York County Docket Number: 151266/2015 Judge: Barbara Jaffe is the story of a client, an attorney and a big problem.  The problem is a one-sided contract.  However, the court finds damages are speculative and dismisses.

“Plaintiff limited liability company was formed in New Jersey and has its principal place
of business there. Defendant’s principal place of business is in New York County.
In reliance on defendant’s asserted skill, knowledge, and experience as an attorney,
plaintiffs managing member retained him in connection with the development and sale of an
undeveloped parcel ofland it owned in a redevelopment area in New Jersey.”

“Defendant drafted, reviewed, and revised the contract of sale, which provided, inter alia,
for a sales price of $3.730 million for the property, a deposit of $50,000, and the contingency
that within six months, plaintiff obtain site-plan approval for the development of a structure of a
minimum size and/or nature, with a six-month extension. The contingency constituted a material
element of and material inducement for entering into the contract, and defendant recommended it
to plaintiff, who relied on his professional guidance and advice on the interpretation of the
prov1s10n.
Unbeknownst to plaintiff, the contingency provision permitted only the buyer to cancel
the contract in the event that the contingency remained unsatisfied and contained no date on
which the contract would be deemed cancelled if the closing did not occur. In effect, the buyer
was given a” de facto option contract, extending in perpetuity, with no remedy to cancel
available to [plaintiff] and at a cost of approximately 1 % of the agreed upon value of the Property.”

Defendant advised plaintiff that the contract allowed it to cancel upon expiration of the
contingency provision. Thus, when the contingency provision expired, and on defendant’s
advice, on or about March 15, 2013, defendant informed the buyer’s attorney that the contract
was terminated and cancelled. In response, the buyer’s attorney objected and advised that the
contract permitted only the buyer to cancel. ”

“Soon thereafter, the buyer filed an action against plaintiff in the New Jersey Superior
Court seeking specific performance of the contract of sale, and filed a notice of pendency against
the property, the value of which then exceeded $5.5 million. Plaintiff was unable to sell the
property for fair market value even though there were ready, able, and willing buyers for that
amount. It was thus forced to sell the property to the buyer for $3.540 million.
Had it not been for defendant’s malpractice, plaintiff would have been able to cancel the
contract and sell the property for not less than $5.5 million and would not have incurred 18
months of litigation which cost it more than $200,000 in legal fees. ”

“Here, plaintiff’s assertion that absent defendant’s negligence, it would have been able to
terminate the contract and sell the property is fatally conclusory, and defendant reasonably
observes that the buyer would not have agreed to such a provision, having paid a non-refundable
deposit and undertaken to obtain the funds needed for the transaction. Thus is revealed the
speculative nature of plaintiff’s case. Additionally, even if open to the idea, the buyer would
likely have sought to extract something in return from plaintiff, a possibility that plaintiff does
not address.
Thus, defendant satisfactorily shows, prima facie, that plaintiffs claim that but for his
failure to negotiate the inclusion in the contract of sale a clause affording it the right to terminate
in the event of a failure to obtain the requisite approvals, it would have been able to terminate the
contract and sell the property for a higher amount of money than that set forth in the contract is
too conclusory and speculative to prove that he was the proximate cause of plaintiff’s damages. “

In an artificial social policy sort of way, lawyers protect lawyers.  Although legal malpractice is a tort (maybe), there is still a requirement of privity.  Remembering back to law school and the progression in products liability from a strict requirement of privity for a recovery from the manufacturer to strict liability, we wonder if the legal world will ever accept that any attorney who participated in a specific litigation should be responsible for departures?

Well, Tatintsian v Pryor Cashman LLP  2018 NY Slip Op 33152(U)  December 10, 2018
Supreme Court, New York County  Docket Number: 152022/2017  Judge: David Benjamin Cohen describes the current state of affairs.

“In this action, plaintiff Gary Tatintsian (Plaintiff) alleges that defendants Pryor Cashman
LLP (Pryor Cashman), Eric Hellige (Hellige) and Eudora Partners LLC (Eudora, along with
Pryor Cashman and Hellige, collectively, Defendants) participated in a scam perpetrated by
Mikhail Vorotyntsev (MV) to “fleece” investors, including Plaintiff. The complaint asserts four
causes of action: fraudulent inducement, aiding and abetting fraud, legal malpractice and unjust
enrichment. By the instant motion (sequence number 001), Defendants move, pursuant to CPLR
3211 (a) (1) and (a) (7), for an order dismissing all causes of action with prejudice. For the
reasons set forth below, the relief sought in the motion is granted in part and denied in part. ”

“In order to plead a legal malpractice claim, the complaint must allege “the negligence of
the attorney” and that the negligence is the “proximate cause of the loss sustained” by plaintiff
(O’Callaghan v Brunelle, 84 AD3d 581, 582 [I51 Dept 201 l][internal citations and quotation
marks omitted]). Further, a legal malpractice claim cannot be stated if there is no attorney-client
relationship between the parties (Waggoner v Caruso, 68 AD3d 1, 3 [1 51 Dept2009], affd 14
NY3d 874 [2010]).
Plaintiff acknowledges that he is not a client of and is not in privity with Defendants, but
asserts that he may recover for losses arising from Defendants’ legal malpractice if the complaint
alleges “fraud, collusion, malicious acts or other special circumstances” (Plaintiffs opposition at
25, citing, inter alia, Estate of Schneider v Finmann, 15 NY3d 306, 308 [2010]). In such regard,
the complaint alleges that Defendants “engaged in fraud, collusion, or malicious or tortious acts
against Plaintiff,” and as a result, “Defendants are liable to Plaintiff for legal malpractice”
(Complaint, iii! 61-62).
However, Plaintiffs allegation of “collusion” in the complaint is conclusory because he
fails to identify any collusive acts between Defendants and MV, and has neither alleged nor specifically identified any “malicious acts” on the part of Defendants. In his opposition to the
motion, Plaintiff merely alleges that because “Defendants committed fraud against him to benefit
themselves … and implicitly … Defendants secretly colluded with [MV] to misappropriate
Plaintiffs investment for Defendants’ and [MV’s] own enrichment” (Defendants’ opposition at
26-27), The foregoing allegations sound more like an unjust enrichment claim rather than a legal
malpractice claim, because the conclusory allegation of “secret collusion” is not supported by any
fact. Also, his fraud against Defendant has been dismissed, for the reasons stated above.
Accordingly, the legal malpractice claim should be dismissed (Benzemann v Citibank,
NA., 149 AD3d 586, 586 [1st Dept 2017] [absence of privity, along with conclusory allegation of
fraud and collusion, required dismissal of the legal malpractice claim]). “

In legal settings, a recurrent theme is how some litigants move from a successful position to a losing position, often by overplaying their hands.  Here, wife obtained physical custody of the child, which seemed to be an important outcome for her, only to end up loosing custody and owing six-figure legal fees to the husband.  Was it the attorney’s fault?

Knox v Aronson, Mayefsky & Sloan, LLP  2018 NY Slip Op 09030 [168 AD3d 70]  December 27, 2018  Singh, J.  Appellate Division, First Department holds for the attorneys.

“While represented by AMS, plaintiff repeatedly expressed her desire to move for a protective order against the husband. AMS ultimately made the application for a protective order as a cross motion to the husband’s motion to set a visitation schedule on May 3, 2013. The motion and cross motion were resolved by a temporary stipulation, dated May 7, 2013 (the temporary stipulation), which gave plaintiff and the couple’s infant daughter, born on November 6, 2012, exclusive occupancy of the couple’s apartment in Manhattan and set a schedule for visitation with the husband.

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.”

“Plaintiff’s complaint should be dismissed in its entirety against AMS. We agree that Supreme Court properly dismissed the claim against FBK.

[1] 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.”

One hires an attorney to handle a case and expects that the attorney will handle the entire case at a level of good practice to which a competent attorney should adhere.  No?  Well not necessarily, as Attallah v Milbank, Tweed, Hadley & McCloy, LLP  2019 NY Slip Op 00583 [168 AD3d 1026]  January 30, 2019 Appellate Division, Second Department tell us.

“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.”

Despite the defendant’s non-litigation efforts, the College refused to reconsider the plaintiff’s dismissal. Thereafter, the plaintiff commenced this action against the defendant to recover damages for breach of fiduciary duty, legal malpractice, and violations of Executive Law § 296, the New York City Administrative Code, and the New York Correction Law. The defendant moved pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint. The Supreme Court granted the defendant’s motion, and the plaintiff appeals.”

“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.”