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.”

From time to time we discuss Judiciary Law § 487, the ancient common law statute.  It is perhaps the oldest common law statute,  post-dating the Magna Carta  (1215) by only 60 years. It was imported into the common law at the birth of our nation.  Over time refinements and embellishments have been added, including the requirements of a “chronic and extreme pattern of legal delinquency.”

We are proud to report that the Court of Appeals has granted leave to file an amicus brief on the issue of statutory analysis of Judiciary Law § 487 in Bill Birds, Inc. v. Stein Law Firm, P.C.,  now being briefed.

Naivete is the assigned cause of the sale of a building without full payment, but legal malpractice is the claimed reason.  Problem?  Plaintiff started the action 4 years after the sale.  Hudson 418 Riv. Rd., LLC v Safiya Consultants Inc.  2019 NY Slip Op 31506(U)  May 24, 2019  Supreme Court, Kings County  Docket Number: 510351/18  Judge: Leon Ruchelsman is a short story of heartbreak.

“As recorded in prior orders, property located at 986 Gates Avenue in Kings County was owned by  Kobas and Solih Realty LLC. On March 13, 2014 the owner entered into a contract to sell half the ownership interest to defendant Brooklyn Broadway Masjid and Islamic Center [hereinafter ‘the
Masjid’]. It is alleged the Masjid did not pay the agreed upon price and that due to the naivete of Mr. Amin Kobas, the principal of the owner, the sale was effectuated in any event. Further, it is alleged the Masjid assumed management of the entire building.

Conclusions of Law

The basis for any claims against defendant Kwasnik are based on the fact that as counsel to Kobas failed to stop the closing from taking place, essentially committing legal malpractice. Indeed, the sixth count of the complaint is a claim for professional malpractice against Kwasnik. It is
well settled that a legal malpractice claim must be filed within three years of the alleged malpractice (CPLR §214(6)). Thus, since there is no dispute the closing took place in 2014 and the lawsuit was not commenced until 2018 the claim against Kwasnik cannof be maintained. The plaintiff argues that any defense regarding the statute of limitations has been waived. However, for a defendant to waive the statute of limitations they must fail to raise it in the answer or by appropriate motion (Matter of Augenblick, 66 NY2d 775, 497 NYS2d 363  [1985]). It s true the defendant has waited a few months until this motion has been filed, however, this is the first responsive molion they have filed and other motions, unrelated to Kwasnik, have contributed to a hearing on this issue. Moreover, any fraud claim that has been alleged as to Kwasnik is really a malpractice claim and is thus duplicative of the malpractice claim. Therefore, since the lawsuit has been filed more than three years after the events giving rise to the claim the motion of Kwasnik seeking to dismiss the complaint as to him is granted”

In what looks like a 9 year battle over attorney fees and legal malpractice allegations, it appears that everyone loses in this case.  Filemyr v Hall  2019 NY Slip Op 31526(U)  May 28, 2019  Supreme Court, New York County  Docket Number: 654563/2018  Judge: Andrew Borrok discusses limitations on attorney fee claims and the necessity of making concrete allegations of legal malpractice.

“This action arises from Mr. Filemyr’ s representation of the defendants as shareholders of 1885 –
93 7th Avenue HDFC in a separate action pursuant to a retainer agreement (the Retainer), dated
December 8, 2010 (NYSCEF Doc. No. 11). In that action, Mr. Filemyr was granted his motion
to withdraw as counsel on July 21, 2015 (NYSCEF Doc. No. 51). In his complaint, Mr. Filemyr
alleges breach of contract, and alternatively quantum meruit, for recovery of $34, 152.97 in unpaid legal fees. In their amended answer, the defendants assert three affirmative defenses and a
counterclaim for legal malpractice.”

“22 NYCRR 137 provides that if an attorney and client cannot agree on fees, the attorney is to
forward written notice to the client by certified mail or personal service. The Fee Dispute
Resolution Program, however, does not apply to “disputes where no attorney’s services have
been rendered for more than two years” (22 NYCRR § 137.1(6)). Failure to serve clients with
notice of their right to arbitrate, and failure to allege in a complaint that clients received such
notice and did not file a timely request for arbitration requires dismissal of the complaint (Paikin
v Tsirelman, 266 AD2d 136, 136-137 [1st Dept 1999]). It is undisputed that Mr. Filemyr did not
provide notice of the defendants’ right to arbitrate because he served the required notices on June
25, 2018 (NYSCEF Doc. No. 52, collectively the Notices), i.e., more than two years after he last
rendered attorney’s services. To wit, even though the defendants received notice from Mr. Filemyr, the notice was provided when the defendants’ right to arbitrate was already time barred
by 22 NYCRR § 137.1(6) (see NYSCEF Doc. No. 53). Therefore, Mr. Filemyr motion to
dismiss the defendants’ affirmative defenses based on laches/waiver/unclean hands is denied and
the defendant’s cross motion to dismiss the complaint is granted. ”

“In this case, the defendants’ assert conclusory allegations they would have recovered lost
proceeds of an apartment sale and saved legal fees but for Mr. Fil em yr’ s departure from the
ordinary standards of professional conduct and breach of fiduciary duty (NYSCEF Doc. No. 47,
iJ 19). While the amended answer refers to instances when the defendants were unhappy with
Mr. Fil em yr’ s representation, the defendants fail to plead specific factual allegations that
establish but for Mr. Fil em yr’ s representation, there would have been a more favorable outcome
in the underlying action (see Dweck Law Firm, LLP v Mann, 283 AD2d 292, 293 [1st Dept
2001]). In their opposing papers, the defendants do not provide an affirmation in further support of their allegations. Accordingly, the defendants’ counterclaim for legal malpractice is
dismissed.”

Pro-se cases, as might be expected, often wash up on the rocks because of poor technical application.  In Strujan v Kaufman & Kahn, LLP  2019 NY Slip Op 00630 [168 AD3d 1114]
January 30, 2019  Appellate Division, Second Department we see failed service of the summons, denied default motions and a direction that all motions be made by order to show cause.  Worse for plaintiff, dismissal.

“Since the defendants represented the plaintiff’s adversaries in a prior action, the causes of action alleging legal malpractice and negligence are unsupported by any duty running from the defendants to the plaintiff (see Betz v Blatt, 160 AD3d 696, 698 [2018]; Betz v Blatt, 116 AD3d 813, 815 [2014]; Gorbatov v Tsirelman, 155 AD3d 836, 840 [2017]; DeMartino v Golden, 150 AD3d 1200, 1201 [2017]; Pasternack v Laboratory Corp. of Am. Holdings, 27 NY3d 817, 825 [2016]).

The plaintiff’s allegations of “intentional harm,” which the Supreme Court properly interpreted as stating a cause of action alleging prima facie tort, were unsupported by facts demonstrating that the defendants acted with “malicious intent or disinterested malevolence” in the prior action (Ahmed Elkoulily, M.D., P.C. v New York State Catholic Healthplan, Inc., 153 AD3d 768, 772 [2017]; see Dorce v Gluck, 140 AD3d 1111, 1112 [2016]; Wiggins & Kopko, LLP v Masson, 116 AD3d 1130, 1131 [2014]; Smallwood v Lupoli, 107 AD3d 782, 785 [2013]; Lisi v Kanca, 105 AD3d 714 [2013]; Shields v Carbone, 78 AD3d 1440, 1442-1443 [2010]). Likewise, the allegations of defamation failed to state a cause of action. The law provides absolute immunity from liability for defamation based on oral or written statements made by attorneys in connection with a proceeding before a court “ ’when such words and writings are material and pertinent to the questions involved’ ” (Front, Inc. v Khalil, 24 NY3d 713, 718 [2015], quoting Youmans v Smith, 153 NY 214, 219 [1897]; see Weinstock v Sanders, 144 AD3d 1019, 1020 [2016]; see also Stega v New York Downtown Hosp., 31 NY3d 661 [2018]).

The plaintiff’s remaining causes of action are not recognized in New York or are inadequately pleaded (see Chanko v American Broadcasting Cos. Inc., 27 NY3d 46, 56 [2016]; Scialdone v Stepping Stones Assoc., L.P., 148 AD3d 953, 954-955 [2017]; Klein v Metropolitan Child Servs., Inc., 100 AD3d 708, 711 [2012]; 42 USC § 1983; CPLR art 14-A).”