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. “

Expert disclosure in New York is truely a black hole.  The statute does not require much by way of naming the expert.  You have to give the name and a little bit about what the expert will say.  However, the timing is completely up to court discretion.  Here is what one plaintiff did in a pinch.

Mazzurco v Gordon 2019 NY Slip Op 04930  Decided on June 19, 2019 Appellate Division, Second Department allowed plaintiff to pay his way out of a jam.

“During a pretrial conference on September 25, 2017, after jury selection, but before opening statements, at the Supreme Court’s request for a list of his witnesses, the plaintiff, for the first time, identified, among others, a damages expert. The defendants made an application, inter alia, to preclude the testimony of the proposed damages expert for failure to comply with CPLR 3101(d)(1)(i), and, upon such preclusion, to dismiss the complaint. In an order dated October 6, 2017, upon granting the plaintiff’s application for a continuance of the trial conditioned, inter alia, on the payment of the sum of $7,500 by the plaintiff’s counsel to the defendants and/or their counsel, the court denied those branches of the defendants’ application which were to preclude the plaintiff’s damages expert from testifying at trial and to dismiss the complaint upon such preclusion. The defendants appeal.

CPLR 3101(d)(1)(i) requires a party to disclose his or her expert witness and certain expert information when served with a proper demand, but does not require a response at any [*2]particular time or “mandate that a party be precluded from proffering expert testimony merely because of noncompliance with the statute” (Rowan v Cross Country Ski & Skate, Inc., 42 AD3d 563, 564; see Rivers v Birnbaum, 102 AD3d 26, 35; Saldivar v I.J. White Corp., 46 AD3d 660, 661). Trial courts are vested with broad discretion “in making determinations concerning matters of disclosure,” including imposing a penalty on a party for its failure to comply with CPLR 3101(d)(1)(i) (Arpino v F.J.F. & Sons Elec. Co., Inc., 102 AD3d 201, 209; see Rivers v Birnbaum, 102 AD3d at 52; McColgan v Brewer, 84 AD3d 1573, 1576). Generally, preclusion is unwarranted without evidence of intentional or willful failure to disclose and a showing of prejudice by the party seeking preclusion (see Rowan v Cross Country Ski & Skate, Inc., 42 AD3d at 564; Aversa v Taubes, 194 AD2d 580, 582). Here, there was no evidence that the plaintiff’s failure to disclose his damages expert was intentional or willful, and the prejudice to the defendants was alleviated by the Supreme Court’s conditional continuance of the trial to permit completion of expert disclosure along with the imposition of monetary sanctions (see Burbige v Siben & Ferber, 115 AD3d 632, 633, citing Shopsin v Siben & Siben, 289 AD2d 220; Aversa v Taubes, 194 AD2d at 582). Accordingly, the court providently exercised its discretion in denying those branches of the defendants’ application which were to preclude the plaintiff’s damages expert from testifying at trial and to dismiss the complaint upon such preclusion.”

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). “

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.”