Big cases and little cases alike are subject to the unique legal malpractice “strategic choice” doctrine as well as a speculation analysis.  Bison Capital Corporation v. Hunton & Williams, Supreme Court, New York County, Scarpulla, J. is today’s example.  “Bison and its president, Edwin E. Wells, Jr. (“Wells”) entered into a contract with nonparty ATP Oil and Gas Corporation (“ATP”) wherein Bison agreed to help secure a financing source for that company, which was facing imminent bankruptcy (“Contract”).”  Eventually, although ATP succeeded, it failed to pay Bison.  Bison retained Hunton & Williams to represent it against ATP.  After much litigation, during the appellate process communication and agreement broke down.  ATP filed for bankruptcy.

“The Legal Malpractice Cause of Action An action for legal malpractice requires proof: (1) of the negligence of the attorney; (2) that the negligence was a proximate cause of the loss sustained, and (3) of actual damages. See Excelsior Capitol LLC v. K&L Gates LLP, 138 A.D.3d 492, 492 (1st Dept. 2016) (internal quotation marks and citation omitted) lv denied 28 N.Y.3d 906 (2016). The complaint must sufficiently allege that the attorney did not exercise the “ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession.” Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442 (2007). “But for” the attorney’s actions, the plaintiff would have prevailed or not suffered ascertainable damages. Id.
Allegations in support of a legal malpractice claim that are conclusory, speculative or contradicted by the documentary evidence will be dismissed, even if there was negligence. See Katz v. Essner, 136 A.D.3d 575, 576 (1st Dept. 2016). An attorney will not be found negligent for an error of judgment simply because it leads to an unsuccessful result. See Rosner v. Paley, 65 N.Y.2d 736 (1985).

Dissatisfaction with strategic choices does “not support a malpractice claim as a matter of law.” Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 431 (1st Dept. 1990). Attorneys are not held to a
rule of infallibility and will not be found liable for honest mistakes of judgment “where
the proper course is open to reasonable doubt.” Id. at 430.

The burden is on the attorney to “offer a reasonable strategic explanation for the alleged negligence.” Ackerman v. Kesselman, 100 A.D.3d 577, 579 (2nd Dept. 2012)(internal quotation marks and citation omitted). It is only when there is no showing of reasonable decision-making that a “determination [of whether] a course of conduct constitutes malpractice require[ ] findings of fact.” Bernstein v. Oppenheim, 160 A.D.2d 428, 430 (1st Dept. 1990).

The overriding problem with Bison’s claims of malpractice based on defendant’s failure to produce an expert on junk bond “evergreen” fees is that, as stated by the district court and affirmed by the Second Circuit, Wells’ own October 15, 2004 letter to ATP articulated the terms of the parties’ agreement, which was that fees were owed for any transaction prior to the twelve-month period following termination of the agreement. Defendant decided in its professional judgment related to trial strategy that Wells, the drafter of the agreement and identified in paragraph three of the second amended complaint as a “financial advisor with a great deal of experience in oil and gas financing [who] had high-level contacts at financial institutions,” was able to testify sufficiently
about junk bond financing and terms of the parties’ agreement. Bison has not sufficiently alleged that despite this letter, had defendant performed differently, it would have achieved a better result. See Warshaw Burstein Cohen Schlesinger & Kuh, LLP v. Longmire, 106 A.D.3d 536, 537 (1st Dept. 2013) lv dismissed 21 N.Y.3d 1059 (2013). In any event, if there was error, it is shielded by the attorney judgment rule. See Ackerman v. Kesselman, 100 A.D.3d at 579.”

Cortland Apts., LLC v Simbari Design Architecture, PLLC  2019 NY Slip Op 50331(U)
Decided on March 19, 2019 Supreme Court, Cortland County Guy, J. is a companion case to Universe Ave. LLC v. Simbari Design Architecture PLLC and raises an interesting question:  When a professional opines that work conforms to a statute is it negligence when the governmental authority charged with enforcing the statute offers a novel interpretation that upsets the prior understanding and determines that the work does not conform to the statue?

Here, the architect opined (placed a seal on the drawings confirming that they conformed to the building and zoning laws) and the City of Cortland then dithered over whether a variance was necessary.  First no, then yes, and then a court stepped in and found that although in the past no variance was required, now it was.

“Based on the undisputed facts, it is clear the City of Cortland historically interpreted its zoning code to not require variances for projects like the ones at issue in this case. That historic interpretation went into flux as these projects developed. The City indicated it would require a variance for the proposed work at 5 Monroe Heights, then reversed that position. Defendant submitted sealed drawings for the projects at both properties in May 2011; the City issued building permits for both projects. The City then issued stop work orders for the projects, leading to Plaintiff’s appeal and Article 78 proceeding that resulted in judicial interpretation of the code. The Zoning Board of Appeals eventually denied the requests for variances on both projects, requiring Plaintiff to undo construction he had already completed.

Plaintiff submitted the affidavit of Thomas A. Zimmerman, a licensed architect with more than forty years of experience in the field. Zimmerman opined that by affixing the seal to the construction drawings for both projects, Defendant represented that the drawings confirmed to “all applicable codes.” According to Zimmerman, Defendant, “in the exercise of due care in performing their professional duties, should have discovered, recognized, and advised their clients [on the code issue] well in advance of their preparation and sealing of construction drawings.” (Zimmerman Affidavit, paragraph 31).

Zimmerman stops short of indicating whether the professional standard of care required an architect in Defendant’s position to certify his drawings confirmed with applicable codes as written or applicable codes as interpreted by the local authorities. Neither party has addressed this open question in his respective papers. The Court finds that it is not a question that falls within the competence of a lay factfinder to evaluate or for the Court to ultimately decide on this summary judgment motion. See Unger, supra at 777; Mary Imogene Bassett Hosp. v Cannon Design, Inc., 127 AD3d 1377 (3d Dept 2015) (bench trial on issue of common law architectural standard of professional care, with expert testimony from both plaintiff and defendant); Town of [*7]Kinderhook v Vona, 136 AD3d 1202 (3d Dept 2016) (summary judgment in accounting malpractice case not granted where plaintiff and defendant both submitted expert affidavits) .

The Court finds Defendant met his initial burden for summary judgment on the professional malpractice claim, but granting all reasonable inferences in Plaintiff’s favor, Plaintiff has submitted sufficient proof in admissible form to establish the existence of material fact issues, requiring the denial of summary judgment.

Plaintiff’s negligence and negligent misrepresentation claims rely on the same set of facts as the contract and professional malpractice claims. Both claims are dismissed as duplicative of the other claims. See Garten v Shearman & Sterling LLP, 52 AD3d 207, 208 (1st Dept 2008).”

The primary lesson to be learned from Salans LLP v VBH Props. S.R.L.  2019 NY Slip Op 02611 Decided on April 4, 2019 Appellate Division, First Department is that courts will deem a studied prediction on what would have happened if counsel had actually gone to court and made certain arguments is that they will almost always call it “speculation” and dismiss a legal malpractice case.

The second less to learn is that limited scope retainer agreements are permissible, but ambiguous ones are construed in favor of the client.  Lastly, representing the president and the company at the same time is permissible sometimes.

“Contrary to plaintiff’s argument, the scope of the work it performed under the 2008 retainer agreement, which included not only numerous contracts and negotiations but also employment litigation in the U.K., makes it at least reasonable to construe the agreement as authorizing plaintiff to represent Luxury and Hoeksema in the underlying loan action (see Shaw v Manufacturers Hanover Trust Co., 68 NY2d 172, 177 [1986] [where there is ambiguity in retention agreement, agreement is construed in favor of client]).

However, plaintiff demonstrated prima facie entitlement to judgment in the legal malpractice counterclaim by showing that defendants could not prove that but for plaintiff’s failure to appear at the TRO hearing the hearing court would have denied the TRO or set a shorter return date (see Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 272 [1st Dept 2004] [holding that to establish a claim for litigation malpractice the client “must meet the case within a case’ requirement, demonstrating that but for’ the attorney’s conduct the client would have prevailed in the underlying matter or would not have sustained any ascertainable damages”]). Defendants speculate that had plaintiff appeared at the TRO hearing, injunctive relief may have been denied or the hearing court may have adjourned the case to an earlier date. Such speculation is insufficient to sustain a claim for legal malpractice (see Freeman v Brecher, 155 AD3d 453, 453 [1st Dept 2017]; Brooks v Lewin, 21 AD3d 731, 734-735 [1st Dept 2005], lv denied 6 NY3d 713 [2006]).”

“Luxury and Hoeksema contend that there is a conflict of interest in plaintiff’s [*2]representation of both of them. However, as Hoeksema is the sole owner, director and officer of Luxury, there is no conflict (see Topic: Concurrent Representation of Corporation and Sole Shareholder, Director and Officer (NY St Bar Assn Comm on Prof Ethics Op 868 [May 31, 2011]). Moreover, Luxury and Hoeksema failed to show any injury caused by the alleged conflict.”

Gengo v Storms   2019 NY Slip Op 02504  Decided on April 3, 2019 Appellate Division, Second Department displays the importance of the nuts and bolts of litigation.  Commencing the action and serving the defendant is the base of any litigation, and here, it went south very quickly.

“On October 23, 2016, the plaintiff commenced this action sounding in legal malpractice. In March 2017, the defendant moved, inter alia, pursuant to CPLR 3211(a)(8) to dismiss the complaint based on the failure to serve process after two defective attempts at service. The plaintiff opposed the motion and cross-moved, among other things, pursuant to CPLR 306-b to extend the plaintiff’s time to serve process. After a hearing to determine the validity of service, the Supreme Court granted the subject branch of the defendant’s motion and denied the subject branch of the plaintiff’s cross motion. The plaintiff appeals.

“An extension of time for service is a matter within the court’s discretion” (Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 101). Such a motion may be granted upon “good cause shown or in the interest of justice” (CPLR 306-b). ” Good cause’ and interest of justice’ are two separate and independent statutory standards” (Bumpus v New York City Tr. Auth., 66 AD3d 26, 31).

Both of the plaintiff’s attempts at service were defective. The plaintiff failed to establish that he exercised reasonably diligent efforts in attempting to effect proper service. Accordingly, he did not establish a basis for a “good cause” extension of time to serve process pursuant to CPLR 306-b (see Hobbins v North Star Orthopedics, PLLC, 148 AD3d 784, 787-788; Wilbyfont v New York Presbyt. Hosp., 131 AD3d 605, 607). Nor has the plaintiff set forth grounds for an extension of time in the interest of justice. Accordingly, we agree with the Supreme Court’s determination to grant that branch of the defendant’s motion which was to dismiss the complaint and to deny that branch of the plaintiff’s cross motion which was to extend the time to serve process.”

Scope of work is a term of art used by architects; it is similarly a term of art applied to architect contracts and the potential for professional malpractice claims against them.  University Ave., LLC v Simbari Design Architecture, PLLC  2019 NY Slip Op 50330(U)  Decided on March 19, 2019  Supreme Court, Cortland County  Guy, J. is a fine example.  What was the architect hired to do and what did he actually do?

”

The parties do not dispute certain material facts at issue in this summary judgment motion. Plaintiff is the owner and developer of commercial rental property located at 1344-1350 University Avenue in the City of Rochester. (Calabro Deposition at 16-17).^[FN2] Plaintiff’s principal is Christopher J. Calabro, who also owns and operates, through other LLCs, commercial and residential rental properties in at least Monroe and Cortland Counties. At the time of the events involved in this lawsuit, Defendant Simbari Design Architecture, PLLC, an architecture firm of which Defendant Thomas J. Simbari is the principal, was a tenant in Plaintiff’s University [*2]Avenue property. (Calabro Deposition at 16, 30).

In late March 2009, Syracuse Behavioral Health (SBH) expressed an interest in leasing a portion of the space in the University Avenue property. (Calabro Deposition at 311). By the end of that month, Plaintiff and Defendant had entered into an hourly agreement for Defendant to perform, on an as-needed basis, architectural services and design build-out services for the proposed SBH space. (Calabro Deposition at 381-382; 422-423). Plaintiff and Defendant both attended an initial project meeting with SBH on April 3, 2009, where it was clear that SBH needed to occupy the space, if leased, as soon as possible after October 1, 2009. (Simbari Deposition at 681-682; 696-697).

From April through November of 2009, Defendant completed floor plan sketches, preliminary drawings and revisions of those drawings relating to the project. (Simbari Deposition at 744-788, 792-793, 813-816, 821-828). Defendant sent Plaintiff and SBH an initial floor plan on April 17, 2019 and a fee estimate worksheet dated April 24, 2009, to estimate Defendant’s total costs for preparing final construction drawings. (Simbari Deposition at 657, 731, 735-736; 770-771).”

“Some of the work undertaken by Plaintiff’s contractors in advance of delivery of the construction drawings and building permit was inconsistent with the construction drawings and therefore had to be redone. (Calabro Deposition at 372-375; 379-383, 386-388, 401-406). The construction drawings also identified certain fire safety construction requirements, which Plaintiff had not anticipated. (Calabro Deposition at 331-332, 340-341; 353-354, 366-368). In an email dated January 26, 2011, Plaintiff acknowledged to Defendant that the project ultimately cost $350,000, on the low end of the estimated range originally provided by Defendant. (Calabro Deposition at 414). Plaintiff now seeks recovery of the costs of the rework and the unanticipated fire code work. (Calabro Deposition at 406).”

“”A claim of professional negligence requires proof that there was a departure from the accepted standards of practice and that the departure was a proximate cause of the injury.” Kung v Zheng, 73 AD3d 862, 863 (2d Dept 2010). It is incumbent upon the plaintiff to present expert testimony to support allegations of malpractice, except where the alleged act of malpractice falls within the competence of a lay jury to evaluate. 530 East 89 Corp. v Unger, 43 NY2d 776, 777 (1977) (internal citations omitted).

The matter of Alvarez v Prospect Hospital is instructive for the outcome of this motion not only for the standard for summary judgment, as recited above, but also in how that standard is applied in the context of a malpractice action. In Alvarez, the defendant-physician’s motion for summary judgment on the plaintiff’s medical malpractice claim was supported by an attorney’s affirmation, hospital records, and the defendant’s deposition testimony. Alvarez, supra at 325. The Court of Appeals rejected Plaintiff’s position that a prima facie case for dismissing a malpractice claim requires an expert affidavit, holding that the “fact that defendant’s supporting proof was placed before the court by way of an attorney’s affirmation annexing deposition testimony and other proof rather than affidavits of fact on personal knowledge, is not fatal to the motion.” Id. (internal citations omitted).

In this case, Defendant has similarly established a prima facie case in support of his summary judgment motion on the malpractice claim through his deposition testimony and his attorney’s affirmation. The architectural services requested by Plaintiff — initially schematics and floor plans, and ultimately detailed construction drawings — were suitably performed by Defendant, as and when requested. As with Plaintiff’s contract claim, Defendant cannot be found to have failed to meet his professional responsibility by not performing services he was not contracted to do. Defendant’s professional duty is measured consistent with the scope of the services he was retained to perform. See, e.g., Greenhaven v Hutchcraft Associates, Inc., 463 N.E. 2d 283 (Ind. Ct. App. 1984); Sch. Bd. v Pierce Goodwin Alexander & Linville, 137 So.3d 1059 (Fla. 4th DCA 2014). In opposition, Plaintiff has offered only conclusory allegations, unsupported by a statement of expert opinion that Defendant did not fulfill his professional duty, required to support a finding of malpractice. Alvarez, supra, at 327. Defendant’s motion for summary judgment dismissing the malpractice claim is granted.

Plaintiff’s complaint also alleges a claim for negligence on the part of Defendant arising from the identical facts alleged to support the breach of contract and malpractice claims addressed above. The negligence claim, grounded on the same facts, is duplicative of the other claims and is also dismissed. See Garten v Shearman & Sterling LLP, 52 AD3d 207, 208 (1st Dept 2008).”

On Lam v Arnold Montag Architect  2019 NY Slip Op 30712(U)  March 13, 2019 Supreme Court, Kings County Docket Number: 522413/2017 Judge: Pamela L. Fisher discusses the relationship between plaintiffs and sub-contractors of their architects and other professionals, and the requirement of privity in a breach of contract case.

“On March 4, 2013, BTE entered into a contract with nonparty JNE Development (JNE) to provide architectural and engineering services for the construction of a two-family duplex located at 1582A Pacific Street in Brooklyn (property). Subsequently, on May 7, 2014, Montag Architects entered into a written agreement with nonparties Yaniv Zohar and GHIB, LLC (collectively, developers) to perform services in connection with the Preparation of Architectural Plans & Expediting to Supercede Previous Applicant” for the property (see Montag Architects moving papers, exhibit C, affidavit of Arnold Montag [Montag affidavit] at ¶ 2 and exhibit C-1, Montag Architects contract with the nonparty developers at 1).

In November 2014, plaintiffs purchased the real property. Plaintiffs contend that the purchased property has numerous design and construction defects. Plaintiffs further contend that the work performed by defendants BTE and later Montag Architects was defective, and, as a result of BTE’s and Montag Architects’ negligence and malpractice, plaintiffs have incurred $2,000,000 damages.”

“Based on the contracts submitted, Montag Architects and BTE have established that the plaintiffs were not in privity of contract with either defendant. However, plaintiffs do not even allege that they were in contract with either Montag Architects or BTE. Instead, plaintiffs allege that they are intended beneficiaries under the agreement between Montag Architects and the developers. To establish that they were intended third-party beneficiaries, plaintiffs must establish

“(1) the existence of a valid and binding contract between other
parties, (2) that the contract was intended for his/her benefit and
(3) that the benefit to him/her is sufficiently immediate, rather
than incidental, to indicate the assumption by the contracting
parties of a duty to compensate him if the benefit is
lost” (State of California Public Employees’ Retirement System v Sherman
& Sterling, 95 NY2d 427, 435 [2000] ; Burns Jackson Miller
Summit & Spitzer v Lindner, 59 NY2d 314, 336 [1983];Cahill
v Lazarski,.226 AD2d 572, 573 [2d Dept 1996]).

“Under this analysis, a professional may be held liable for negligence or malpractice even when they are not retained by plaintiff if a relationship exists between the parties that is so close as to approach privity (see Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 425 [I989]). To establish such a relationship, there must be a showing that (1) the professional was aware that their work would be used for a particular purpose, (2) upon which a known party was intended to rely, and (3) that there was some conduct on the part of the professional linking them to the plaintiff (see Caprer v Nussbaum, 36 AD3d 176, 196 [2d Dept, 2006])”

“Although plaintiffs allege that they are intended beneficiaries, they fail to allege facts sufficient to establish a relationship approaching privity. Plaintiffs were neither parties to, nor express third-party beneficiaries of, either contract at issue. In fact, the contract between Montag Architects and the nonparty developers specifically excludes the creation of a contractual relationship with third parties (see Dormitory Auth. of the State of N.Y. v Samson Constr. Co., 30 NY3d 704, 710 [2018]; Fourth Ocean Putnam Corp. v Interstate Wrecking Co., 66 NY2d 38, 44 [1985]). Plaintiffs rely on a telephone call conducted with defendant Montag; however this conversation alone is insufficient to establish a relationship approaching privity”

Attorney billing is the center of the attorney world, and the greatest part of attorney-client litigation arises from or concerns attorney billing.  Ledyard v Bical  2019 NY Slip Op 30739(U)  March 20, 2019 Supreme Court, New York County  Docket Number: 150470/2018  Judge: Arthur F. Engoron is an excellent example.  Arrested, indicted and shown the evidence by the EDNY, plaintiff pled guilty.  His co-defendant, charged with a  slightly lesser series of crimes went to trial and was acquitted.  This fact was the linchpin of the counterclaim against Ledyard.  Supreme Court agreed with Ledyard that it had an account stated, and all else in the case fell in line.

“This consolidated action arises from the criminal trial and legal defense of Lilahar Bical (“Bical”). Bical was a franchised dealer for General Motors Corporation operating under the name of “Kristal Auto Mall.” Bical and a co-defendant, Darmin Bachu (“Bachu”), were indicted by the United States District Court for the Eastern District of New York (hereafter “U.S. Attorney’s Office”) and charged with mail and wire fraud arising out of Bical’s purchase of land in Brooklyn to build a new  dealership complex. In November of 2016, Bical engaged Carter Ledyard & Milburn LLP (“CLM”) to replace his then-current counsel. CLM alleges, and Bical concedes, that the FBI possessed wiretap recordings that were used by the FBI in its prosecution and plea deal negotiations with Bical. In October 2017, Bical entered a guilty plea pursuant to a negotiated plea agreement with the U.S. Attorney’s Office. Bical had been charged as the alleged perpetrator of the scheme. Bachu had been charged with aiding and abetting the scheme.  Bachu elected to take his case to trial, where he was acquitted. Bical then, unsuccessfully, sought to withdraw his guilty plea, citing ineffective assistance of counsel. ”

“CLM is entitled to judgment in the amount of $258,394.67 in legal fees on a theory of account
stated. “[W]here an account is rendered showing a balance, the party receiving it must, within a
reasonable time, examine it and object, if he disputes its correctness. If he omits to do so, he will
be deemed by his silence to have acquiesced, and will be bound by it as an account stated, unless
fraud, mistake or other equitable considerations are shown.” Shaw v Silver, 95 AD3d 416, 416
(1st Dep’t 2012). CLM has met its prima facie burden by providing evidence that it sent to Bical
regular, detailed invoices for the legal services for which CLM now seeks to recover. The partial
payments by Bical in the amount of over $450,000.00 over the life of CLM’s representation of
Bical further evidences CLM’s entitlement to payment. IQ_, Bical’s conclusory and untimely
letter by his new attorney, dated December 13. 2007. that states “‘Mr. Bical disputes each and
every invoice you have sent his way” is insufficient to raise a triable issue as to whether CLM’s
statements of account were in fact disputed. A& W Egg Co. v Tufo’s Wholesale Dairy, Inc., 169
AD3d 616 (1st Dep’t 2019). For an objection to rebut sufficiently a prima facia entitlement to an
account stated, it must raise a complaint to a specific amount or invoice. It is not enough, at the
11th hour, and after having partially paid invoices for over a year, to state retroactively that you
object to every invoice that was ever sent. Schulte Roth & Zabel. LLP v Kassover, 80 AD3d
500, 501 (1st Dep’t 2011). “