Clients rightfully expect the retainer lawyer to engage zealously on their behalf.  What are the limits of such representation?  How does the lawfirm correctly limit its obligations to the client.  It starts by following the rules for a retainer agreement or a letter of engagement set forth in 22 NYCRR § 1215.

Attallah v Milbank, Tweed, Hadley & McCloy, LLP  2019 NY Slip Op 00583  Decided on January 30, 2019 Appellate Division, Second Department describes how the letter might be written.

“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 Administrative Code, and the New York Corrections 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). 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.”

It’s seen from time to time, but rarely. Pro-se plaintiffs are deprived of the right to file a lawsuit or to file motions because the Court becomes so irritated by their filings. Strujan v Kaufman & Kahn, LLP  2019 NY Slip Op 00630  Decided on January 30, 2019 Appellate Division, Second Department is an example.

“The plaintiff commenced this action, inter alia, to recover damages for legal malpractice against the defendants Kaufman & Kahn, LLP (hereinafter Kaufman), and Fiden & Norris, LLP (hereinafter Fiden; hereinafter together the defendants), firms that represented the plaintiff’s adversaries in a prior action. The defendants separately moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against each of them, and the plaintiff moved, inter alia, for leave to enter a default judgment against the defendants and to disqualify Fiden’s attorneys. Fiden also cross-moved to preclude the plaintiff from filing any further motions except by order to show cause. The Supreme Court, inter alia, denied the plaintiff’s motions, granted the defendants’ separate motions to dismiss the complaint insofar as asserted against each of them, and directed the plaintiff to make all further applications for relief by order to show cause. The plaintiff appeals.”

“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; Betz v Blatt, 116 AD3d 813, 815; Gorbatov v Tsirelman, 155 AD3d 836, 840; DeMartino v Golden, 150 AD3d 1200, 1201; Pasternack v Laboratory Corp. of Am. Holdings, 27 NY3d 817, 825).

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; see Dorce v Gluck, 140 AD3d 1111, 1112; Wiggins & Kopko, LLP v Masson, 116 AD3d 1130, 1131; Smallwood v Lupoli, 107 AD3d 782, 785; Lisi v Kanca, 105 AD3d 714; Shields v Carbone, 78 AD3d 1440, 1442-1443). 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, quoting Youmans v Smith, 153 NY 214, 219; see Weinstock v Sanders, 144 AD3d 1019, 1020; see also Stega v New York Downtown Hosp., 31 NY3d 661).

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; Scialdone v Stepping Stones Assoc., L.P., 148 AD3d 953, 954-955; Klein v Metropolitan Child Servs., Inc., 100 AD3d 708, 711; 42 USC § 1983; CPLR article 14-A).

“Public policy generally mandates free access to the courts” (Vogelgesang v Vogelgesang, 71 AD3d 1132, 1134; see Sassower v Signorelli, 99 AD2d 358, 359). Although a pro se litigant is afforded ” some latitude,'” he or she is not entitled to rights greater than any other litigant and may not disregard court rules or deprive an adversary of rights normally enjoyed by an opposing party (Strujan v Glencord Bldg. Corp., 137 AD3d 1252, 1254, quoting Mirzoeff v Nagar, 52 AD3d 789, 789; see Matter of Chana J.A. v Barry S., 135 AD3d 743, 744; Walter v Jones, Sledzik, Garneau & Nardone, LLP, 67 AD3d 671, 672). Accordingly, “when a litigant is abusing the judicial process by harassing individuals solely out of ill will or spite, equity may enjoin such [*2]vexatious litigation” (Breytman v Pinnacle Group, 110 AD3d 754, 755; see Breytman v Schechter, 101 AD3d 783, 785; Vogelgesang v Vogelgesang, 71 AD3d at 1134; Matter of Simpson v Ptaszynska, 41 AD3d 607, 608; Duffy v Holt-Harris, 260 AD2d 595; Matter of Shreve v Shreve, 229 AD2d 1005). Here, the plaintiff’s pattern of vexatious and duplicative motion practice warranted the modest limitation of directing the plaintiff to bring future motions via order to show cause (see Strujan v Glencord Bldg. Corp., 137 AD3d at 1254).”

Louis F. Burke PC v Aezah  2019 NY Slip Op 00557  Decided on January 29, 2019  Appellate Division, First Department may be the shortest AD1 opinion of recent memory.

Here is the entirety:  “Order, Supreme Court, New York County (David Benjamin Cohen, J.), entered January 3, 2018, which, to the extent appealed from as limited by the briefs, granted plaintiff’s motion to dismiss defendants’ counterclaims for breach of contract, breach of fiduciary duty, legal malpractice, and violation of Judiciary Law § 487, unanimously affirmed, without costs.

We find that the motion court’s dismissal of the counterclaims was proper and that defendants have not articulated any basis to disturb the motion court’s ruling (Leon v Martinez , 84 NY2d 83, 87-88 [1994]). We have considered the remaining arguments and find them unavailing.”

Supreme Court’s order was not much longer.  Here is the portion on legal malpractice:

“The facts alleged by defendant do not give rise to any claims that the attorney was negligent or that defendants would have prevailed in the underlying action or would not have incurred any damages but for the lawyer’s negligence.  Therefore, the fourth cause of action is dismissed.”

Although really only a procedural decision,Matz v Sol Klein P.A., Inc.  2019 NY Slip Op 30166(U) January 17, 2019  Supreme Court, New York County  Docket Number: 155506/2016
Judge: Kathryn E. Freed  does discuss the limits of a broker’s / adjuster’s obligations.  Here, Sol Klein argues that it had no responsibility to advise the insured of a second policy which might have covered their loss.  Sol Klein unsuccessfully moved to dismiss and here unsuccessfully moves to reargue.

“Construing the complaint in a light most favorable to plaintiff[s], it sets forth a
cause of action in negligence as against Klein Inc. based on its failure to properly
adjust their claim. Specifically, as noted above, plaintiffs allege that Klein Inc.
failed to inform Aboulafia and the Aboulafia Firm about the existence of the
Technology Policy, despite the fact that they knew about the same. Klein Inc.
asserts, in effect, that its retainer agreement constitutes “documentary evidence”
precluding the claims against it because it only required the company to adjust the
claim and not to notify the Aboulafia Firm of any course of action it should take.
The agreement provides, inter alia, that it is “valid only if both it and [the] attached
notice of cancellation are written in the same language as that principally used in
the oral negotiations and presentation.” Doc. 28. Since the agreement does not
contain any details about any oral negotiations or presentation, it clearly cannot be
considered “documentary evidence” pursuant to CPLR 3211 (a)(I ). Nor does
Klein’s affidavit in support of the motion constitute “documentary evidence.” See,
e.g., J.A. Lee Electric, Inc. v City of New York, 119 AD3d 652 (2d Dept 2014);
Flowers v 73rd Townhouse, LLC, 99 AD3d 431 (JS1 Dept2012).

Doc. 39, at 8-9.
Klein Inc. moves for reargument of the initial motion, asserting that this Court erred in refusing to dismiss the complaint against him based on CPLR 3211 (a)( 1) (documentary evidence) and (a)(7) (failure to state a cause of action).

A motion for reargument pursuant to CPLR 2221 ( d) is designed to afford a party an opportunity to demonstrate that, in issuing a prior order, the court overlooked relevant facts or that it misapplied a controlling principle oflaw. See Foley v Roche, 68 AD2d 558, 567 (1st Dept 1979). “Reargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided or to present arguments different from those originally asserted.” William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 (1st Dept 1992) (citations omitted).  Thus, the motion is not to be used as a vehicle for rehashing what was already argued or for raising new questions. See Simpson v Loehmann, 21 NY2d 990, 990 ( 1968).

Klein Inc. argues that it had no duty to advise Aboulafia or the Aboulafia Firm about the claim submitted to TIC, which is what it argued in the initial motion. Doc. 9, at par. 16. Further, it sets forth no authority for this argument. Moreover, as this Court stated in the initial order, Klein Inc. did not submit documentary evidence warranting dismissal of the negligence claim against it. Thus, Klein Inc. ‘s motion for reargument is denied.”

 

Clark v Allen & Overy LLP  2019 NY Slip Op 30146(U)  January 16, 2019  Supreme Court, New York County  Docket Number: 453138/2017  Judge: Arlene P. Bluth is an employment abuse case (between lawyers) that went all the way to a request for cert at SCOTUS.  For our purposes, it’s not a JL § 487 case.  Even more interesting, there is no cause of action for a 3d party intentionally hacking your attorney-client privileged emails!

“Plaintiff Deidre Holmes Clark is an attorney who formerly worked for defendant law firm, Allen and Overy LLP (“A&O”). A&O terminated plaintiffs employment in January 2009 for gross misconduct. In June 2011, plaintiff filed a sexual harassment and retaliatory discharge claim
against A&O. Plaintiff alleged defendants “illegally hacked into, accessed, viewed, copied and distributed to third parties Plaintiffs completely personal emails to her friends and lover dealing
solely with her sexual and romantic life, including from her private Hotmail account and including
deleted emails” (Plaintiffs complaint at 5). Defendant Proskauer Rose (“Proskauer”) represented
A&O in that 2011 action. In that 2011 action, the Court (York, J.) ordered plaintiff to sit for an Independent Medical Exam (JME) and ordered that the entire trial docket be sealed.  Plaintiff
refused to sit for the !ME and appealed Justice York’s decision directing her to sit for the !ME to
the First Department. While the appeal was pending, plaintiff sought a stay of the Supreme Court
case and defendants sought to seal the record pertaining to the appeal. Plaintiff and defendants had
a conference with Appellate Division Judge Judith Gische who granted the stay and declined to seal the documents. Plaintiff claims that following the conference with Judge Gische, Proskauer made a deal with the clerk of the First Department to hide the documents regarding the appeal from the public. ”

“A violation of §487 of New York Judiciary Law occurs when an attorney is “guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” (N. Y. Judiciary Law § 487). Plaintiff alleges defendants engaged in a pattern of fraud upon the courts in violation of §487 by allegedly making a deal with the clerk at the First Department to hide documents and by filing what plaintiff believes is a false Notice of Entry under seal (see Plaintiffs Memorandum in Law in Opposition to Defendants’ Motion to Dismiss at 23). Plaintiffs  claim fails because defendants were following Justice York’s order that the trial court documents were to be filed under seal. Even if the appellate documents were mistakenly filed under seal in the trial court, that does not suggest an intent to deceive the court and this cause of action is dismissed. ”

“CPLR 4503 provides that:
“Unless the client waives the privilege, an attorney or his or her employee, or any
person who obtains without the knowledge of the client evidence of a confidential
communication made between the attorney or his or her employee and the client in
the course of professional employment, shall not disclose, or be allowed to disclose
such communication, nor shall the client be compelled to disclose such
communication, in any action, disciplinary trial or hearing.”

Plaintiff alleges that while working with A&O her calls and emails were being monitored, including communication with an attorney regarding her sexual harassment complaint. She states her righi to attorney client privilege was breached because A&O purportedly read those emails. Plaintiffs claim must fail because New York courts do not recognize a claim for breach of attorney-client privilege for a third person’s intrusion into the communication between the attorney and the client (see Madden v Creative Servs., Inc., 84 NY2d 738, 744 [1995]). “

Robinson v Day  2019 NY Slip Op 30153(U)  January 16, 2019  Supreme Court, New York County
Docket Number: 600907/2010  Judge: O. Peter Sherwood is an example of how even a written settlement agreement can lead to further litigation and, in this case, a claim of legal malpractice.

“In this action filed by plaintiff Adam Robinson [“AR”] in April, 2010 against his former
girlfriend and companion, the second amended complaint alleges 36 causes of action, including
constructive trust, fraud and rescission. It also asserts a claim of legal malpractice against the
David DePinto and DePinto Nomes and Associates, LLP law firm (“DePinto Parties”).
The parties executed a Settlement Agreement on February 7, 2018, and an Addendum on
March 6, 2018 (the “Agreement” or “Settlement Agreement”) (Bowler affirmation, exhibits A, B),
both intended to provide a framework for concluding eight years of contentious litigation regarding
breach of various contracts that assigned to Day “an interest in certain royalties from [The
Princeton Review] (“TPR”) and Random House” (mem at 9). The Agreement was so-ordered on
March 6, 2018 (Bowler affirmation, exhibit A at 3).
The Agreement provides, in relevant part, as follows:

Royalty Payments:
• The Royalties are owned 100% by Laura Day, Inc. LDI assigns 25% to AR during
his lifetime to terminate upon AR’s death and thereafter, all future royalty payments
revert to LDI. (It is a condition precedent to the assignment that LDI. received [sic]
general releases as set forth below, and sign off on TPR litigation as set forth
below). I
Escrow:
• It is a condition precedent to LD’ s obligations to perform, that the money is released
from escrow.
• LDI to pay AR $200,000 following the release of funds from escrow.
Katzman/ TPR Action:
• AR irrevocably instructs TPR to pay pursuant to the terms of this Agreement.
Release:
(id at 1).
• All parties (and any business entities owned or controlled by LD or AR) execute
mutual general releases and AR’s release extends to Peter Samson Day.”

“”Stipulations of settlement are judicially favored, will not be lightly set aside, and ‘are to
be enforced with rigor and without a searching examination into their substance’ as long as they
are ‘clear, final and the product of mutual accord”‘ (Forcel/ia v Geico Corp., 109 AD3d 244, 247-
48 [2d Dept 2013]). “[S]ettlement agreements are subject to the principles of contract law” (id.).
“The fundamental rule of contract interpretation is that agreements are construed in accord
with the parties’ intent … and ‘[t]he best evidence of what parties to a written agreement intend
is what they say in their writing’ …. Thus, a written agreement that is clear and unambiguous on
its face must be enforced according to the plain terms, and extrinsic evidence of the parties’ intent
may be considered only if the agreement is ambiguous [internal citations omitted]” (Riverside
South Planning Corp. v CRP!Extell Riverside LP, 60 AD3d 61, 66 [1st Dept 2008], affd 13 NY3d
398 [2009]). Whether a contract is ambiguous presents a question of law for resolution by the
courts (id. at 67). Courts should adopt an interpretation of a contract which gives meaning to every
provision of the contract, with no provision left without force and effect (see RM 14 FK Corp. v
Bank One Trust Co., NA., 37 AD3d 272 [1st Dept 2007]).
It falls to the court to determine, as a matter of law, whether an express condition precedent
exists in a contract (see Two Guys from Harrison-NY v S.F.R. Realty Assoc., 63 NY2d 396, 403 [1984]; Comprehensive Health Solutions v Trustco Bank, Natl. Assn., 277 AD2d 861, 863 [3rd
Dept 2000]). “[A] contractual duty ordinarily will not be construed as a condition precedent absent
clear language showing that the parties intended to make it a condition” ( Unigard Security Ins. Co.
v North Riv. Ins. Co., 79 NY2d 576, 581 [1992]), or “where the act to be done by the plaintiff must
naturally precede, in the order, of time what the defendant is called upon to do, and where the
former is necessary to be done to enable the defendant to perform” (Tipton v Feitner, 20 NY 423,
425 [1859]).
As a preliminary matter, the Agreement is unambiguous. It is “clear, final and the product
of mutual accord” Forcellia, 109 AD 3d at 24 7. It requires satisfaction of two conditions that must
be satisfied before LDI assigns 25% of her future Royalty Payments to Robinson. Specifically, it
requires receipt by LDI of the general releases referenced in the Agreement and “sign off [by LD.I]
on the TRP litigation as set forth below.”2 ”

“In summary, pursuant to the Agreement, Robinson is required to instruct the Royalty
Payors that LDI is 100% owner of the Royalties and to cooperate in obtaining the documentation
needed to effectuate the terms of the Agreement. Upon receipt of the instructions which shall be in a form reasonably acceptable to the Royalty Payors and Katzman, exchange of the releases
identified in the Agreement and upon execution of a written agreement with TPR/Random
House/Katzman to pay royalties directly to Robinson (25% during his lifetime and thereafter 100%
to Laura Day, Inc. and Laura Day, Inc. 75%). LDI shall execute and deliver to the Royalty Payors
(copy to Robinson) the assignment provided for in the Agreement. No Royalty payments should
be made by the Royalty Payors until the required written agreements have been signed and
delivered (to the proper party or escrow agent) and the general releases exchanged. “

Judgments don’t last forever.  They lapse after a number of years.  This legal malpractice case tests the limits of how long plaintiff can wait to sue for legal malpractice.

Potenza v Giaimo  2018 NY Slip Op 07164 [165 AD3d 1186]  October 24, 2018 Appellate Division, Second Department concerns litigation that began almost 25 years ago.  “The defendants represented the plaintiff in an action against a nonparty to recover on loans that the plaintiff made to the nonparty. In 1995, the plaintiff obtained a judgment in that action. In 2009, the defendants attempted unsuccessfully to obtain a renewal judgment (see CPLR 5014). Thereafter, in 2014, the plaintiff commenced the instant action against the defendants, alleging, inter alia, legal malpractice, fraudulent misrepresentation, and a violation of Judiciary Law § 487. The plaintiff moved to disqualify the defendant Joseph O. Giaimo from representing the defendant Giaimo Associates, LLP, and from appearing pro se. The defendants cross-moved, inter alia, for summary judgment dismissing the complaint. In the order and judgment appealed from, the Supreme Court, inter alia, denied the motion, granted those branches of the cross motion which were for summary judgment dismissing the first, second, third, and fifth causes of action, and thereupon, dismissed those causes of action.”

“The statute of limitations for causes of action alleging legal malpractice is three years (see CPLR 214 [6]; Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 735 [2015]). A cause of action to recover damages for legal malpractice accrues when the malpractice is committed (see Shumsky v Eisenstein, 96 NY2d 164, 166 [2001]). However, pursuant to the doctrine of continuous representation, the limitations period is tolled until the attorney’s continuing representation of the client with regard to the particular matter terminates (see Shumsky v Eisenstein, 96 NY2d at 167-168; Aqua-Trol Corp. [*2]v Wilentz, Goldman & Spitzer, P.A., 144 AD3d 956, 957 [2016]). For the continuous representation doctrine to apply, “there must be clear indicia of an ongoing, continuous, developing, and dependant relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice” (Luk Lamellen U. Kupplungbau GmbH v Lerner, 166 AD2d 505, 506-507 [1990]).

Here, the defendants satisfied their initial burden by demonstrating, prima facie, that the alleged legal malpractice occurred more than three years before this action was commenced in 2014. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the applicable statute of limitations was tolled by the continuous representation doctrine. Accordingly, we agree with the Supreme Court’s determination dismissing the plaintiff’s legal malpractice causes of action as untimely.”

Sure, the attorney made mistakes.  Heck, the mistakes were so bad the Court “excoriated” him.  Good enough yet?  Nope. U Joon Sung v Park  2019 NY Slip Op 30107(U)  January 11, 2019
Supreme Court, New York County  Docket Number: 159279/2015 Judge: Kathryn E. Freed shows that departure is merely the first step in a 4-step dance.  Next?  Proximate cause and “but for” causation.  In a Motor Vehicle setting that means that “serious injury” within the meaning of the Insurance Law has to be shown.

“In this legal malpractice action, plaintiff U loon Sung moves, pursuant to CPLR 3212, for summary judgment on the issue of defendants Andrew I. Park, Esq., Sim & Park, LLP, and Andrew Park, P.C.’s liability for their failure to duly prosecute his claims in an underlying personal injury action. After oral argument, and after a review of the parties’ papers and the relevant statutes and caselaw, it is ordered that the motion is denied. ”

” In the earlier of the two decisions, this Court denied plaintiffs motion to vacate a dismissal of an
underlying personal injury action styled U Joon Sung v Feng Ue Jin, Supreme Court, Queens County Index Number 24966/09 (“the underlying action”). (Doc. 44.) Defendants herein
represented plaintiff in that matter. (Doc. 46 at 3-4.) In refusing to vacate the default, this Court
excoriated defendants’ “overall lack of diligence in prosecuting [plaintiffs] case” (Doc. 44 at 5),
and also noted that they failed to demonstrate a meritorious cause of action on behalf of plaintiff
by not “submit[ting] any competent medical evidence” (id.). This decision was appealed and
subsequently upheld by the Second Department by an order issued on April 1, 2015. (Doc. 45.) ”

“Plaintiffs primary argument in moving for summary judgment against defendants is that,
“given the underlying liability involved a rear-end collision which occurred while [he] was at a
complete stop … he would have prevailed in the underlying action” but for defendants’ negligence
in failing to prosecute his action. (Doc. 41 at 6.) Plaintiff cites Insurance Law§§ 5102(a) and
5104(a) in support of his underlying injury action.

This Court determines that summary judgment must be denied because plaintiff has failed
to establish his prima facie showing that he would have prevailed on the merits of his underlying
Insurance Law§§ 5102(a) and 5104(a) claims but for the defendants’ negligence.§ 5102(a) merely
provides the statutory definition for “basic economic loss” for Article 51 of the Insurance Law.
(See Insurance Law§ 5102[a].) § 5104(a) is limited only to claims that involve a “serious injury.”
(See McLoyrd v Pennypacker, 178 AD2d 227, 227 [I st Dept 1991] (“With the adoption of no-fault
insurance in this State, the Legislature has sought to remove from the judicial arena litigation
involving all claims save those involving the most serious physical injury.”).) “In order for a nonpermanent injury to be considered ‘serious’ … there must be a medical determination as to the
extent of the injury and its adverse impact on the injured party’s ability to perform his usual and
customary daily activities.” (Id.) ”

“In a similar vein, plaintiff’s evidence on the motion does not eliminate triable issues of fact.
Although defendant Park-admitted at his deposition that he understood that the underlying case
was dismissed due to his. failure to prosecute plaintiffs action (Doc. 58 at 5-6), plaintiff has not
shown that he would have established that he sustained a “serious injury” had the case gone
forward. Finally, while plaintiff submits the reports of two witnesses, those experts only made
conclusions as to plaintiffs lost wages due to the accident and are not dispositive on the issue of
liability. (Docs. 63-64.) Thus, summary judgment against defendants on plaintiffs claims for legal
malpractice is denied. “

No privity, no malpractice.  That’s the basic lesson of 97 2nd LLC v Goldberg Weprin Finkel Goldstein LLP      2019 NY Slip Op 30021(U)  January 4, 2019  Supreme Court, New York County
Docket Number: 154593/2018  Judge: Arlene P. Bluth.  In this case where a nice piece of property went back and forth between developers, the attorneys obtained dismissal of the legal malpractice claims.

“This action arises out of an ownership dispute over plaintiff, a company that used to own property located at 97 Second Avenue in Manhattan. Initially plaintiffs sole member was Raphael Toledano. The complaint alleges that Toledano received financing in April 2015 from Letko Funding LLC (“Letko”) for another one of his businesses (“West 16”) and that these funds were secured by Toledano’s membership interest in plaintiff. In other words, Toledano’s interest in plaintiff was collateral for Letko’s loan.

In April 2017, West 16 defaulted and Letko conducted an auction sale of Toledano’s membership interest in plaintiff. Letko successfully acquired Toledano’s interest at the sale and assigned the bid to another entity (“22 Columbus”). After other transactions, 22 Columbus eventually appointed Michael K. Shah as sole manager of plaintiff on June 20, 2017.

On that same day, 22 Columbus executed a deed on behalf of plaintiff transferring ownership of the property to DS 97 2nd Avenue Property Owner LLC (“DS 97″), an affiliate of Shah, the owner of22 Columbus. Allegedly, Toledano then called Shah and directed 22 Columbus to sell the premises to him. On July I 0, 2017, DS 97 filed an order to show cause to restrain Toledano from interfering with the property.
In August 2017, defendant (a law firm) filed a Chapter 11 bankruptcy petition at Toledano’s direction on behalf of plaintiff. Plaintiff (controlled by Shah in this action) claims that it never gave defendant permission to file the claim or appear on its behalf in bankruptcy court. Plaintiff contends that its sole member, at the time of the filing of the bankruptcy petition, was 22 Columbus and 22 Columbus never retained defendant. Plaintiff contends.that defendant knew that it did not have authority to bring the bankruptcy case and brought the case anyway. The bankruptcy case was later dismissed after Shah intervened and filed a motion to dismiss. Plaintiff brings causes of action based on Judiciary Law § 487, malicious prosecution, professional negligence, malpractice, conversion and identity theft as well as slander of title based on the bankruptcy case.”

“”New York courts impose a strict privity requirement to claims of legal malpractice; an attorney is not liable to a third party for negligence in performing services on behalf of his client. Thus, absent an attorney-client relationship, a cause of action for legal malpractice cannot be stated” (Federal Ins. Co. v North American Specialty Ins. Co., 47 AD3d 52, 59, 847 NYS2d 7 [!st Dept 2007]).

These causes of action are severed and dismissed because there was no privily between plaintiff (now controlled by Shah) and defendant. It is undisputed that Toledano hired defendant to bring the bankruptcy proceeding and that defendant cited to the June 19 letter agreement with Lefkowitz as the basis for Toledano’s ownership interest in plaintiff. Toledano’s position was that the auction sale by Lefkowitz was improper and hired defendant to bring a bankruptcy case that to help him regain his interest.

While Shah vehemently disagrees with the decision to bring the bankruptcy case, that does not state a cause of action· for professional negligence or legal malpractice because he did not retain defendant. Shah intervened in the bankruptcy case through his own counsel, moved to dismiss and eventually won dismissal. An adversary cannot claim legal malpractice and, unlike the cases cited by plaintiff, defendant did not commit fraud or collusion or a malicious act.”

Andejo Corp. v South St. Seaport L.P.  2018 NY Slip Op 33431(U)  December 28, 2018
Supreme Court, New York County  Docket Number: 655410/16  Judge: Shlomo S. Hagler catalogues a large number of fraud and fraud related claims, as well as legal malpractice claims, and discusses the elements and the statute of limitations implications for each of them.  This case concerns a large number of tenants who banded together, with little success, to sue the landlord in the years after superstorm Sandy.

“Plaintiffs, commercial tenants who formerly conducted business at the South Street Seaport (“Seaport”), seek compensation from other such tenants for breach all of these parties’ agreement to jointly prosecute a lawsuit against their mutual landlord, and for other alleged tortious conduct.  Plaintiffs also allege tortious conduct by their former landlord, and the landlord’s counsel, and plaintiffs’ former counsel. All of the defendants move to dismiss the complaint (CPLR [a] [1], [5], [7]). ”

“Plaintiffs allege that, in 2004, when the Tenants were considering filing a lawsuit against Landlord, Shapiro recommended Rosenberg as counsel to represent the Tenant Group. In August 2004, the plaintiffs entered into a Joint Claim Agreement with each other, and with Salad and Booth, entitled “South Street Seaport’s Tenants’ Association Joint Claim Agreement (the “JCA”), which was drafted by Rosenberg in collaboration with Shapiro.

In the JCA, the Tenants that executed the agreement, defined in the JCA as “Tenants,” each agreed to share both the expenses in prosecuting the lawsuit against Landlord and any recovery received from Landlord (Felix Moving Affirmation, Exhibit “B”, at 1 [the Tenants agreed to “pool their claims and share in any recovery, payment or compensation of any nature paid by” Landlord]). Paragraph Four of the JCA prohibits a Tenant from individually settling “any claim” with Landlord. Paragraph Four also provides that any Tenant that violated the settlement prohibition would be required to contribute “any compensation or the value of any other consideration received by such Tenant or paid or given for the benefit of such Tenant” to the Tenant Group (JCA, ii 4). 1 Paragraph Six of the JCA (the “Rent Exception Provision”), also prohibits a Tenant from settling with Landlord “except in connection with a settlement or compromise made on behalf of the Tenants.” The Rent Exception Provision requires a Tenant to pay to the Committee for the benefit of other Tenants any “recovery payment, credit or settlement” received by such tenant other than rent relief or a forgiveness of rent arrears [emphasis supplied]. Thus, the Rent Exception Provision explicitly excludes from the settling Tenant’s contribution requirement “any rent relief or forgiveness of rent arrears” (JCA, if 6).

Plaintiffs allege that, prior to the JCA’s execution in August 2004, Shapiro and Rosenberg did not discuss with them the inclusion in the JCA of the Rent Exception Provision, or its implications. Plaintiffs further claim that, based on Shapiro and Rosenberg’s representations about the JCA, plaintiffs understood that any settlement consideration of rent relief, or forgiveness ofrent arrears, that a Tenant received from Landlord belonged to the Tenant Group. Plaintiffs allege that they would not have entered into the JCA, retained Rosenberg, or jointly commenced the lawsuit against Landlord had they been advised of Rosenberg and Shapiro’s current interpretation of the JCA, as permitting a Tenant to individually settle rent arrears claims without the Tenant Group’s consent or without paying the settlement’s value to the group. Plaintiffs contend that Rosenberg and Shapiro were fiduciaries to plaintiffs and, thus, obligated to explain their interpretation of the JCA. ”

“By Order, dated February 16, 2018, this Court granted the motion by RFS to dismiss plaintiffs’ complaint alleging legal malpractice, breach of contract and fraudulent inducement as against Rosenberg and RFS (Fulton Market Retail Fish, Inc. v Todtman Nachamie Spizz &  Johns, P.C. (Sup Ct, NY County, index No. 151002/2015 [“2015 Malpractice Action”]). Although the claims for legal malpractice herein would be barred by the statute of limitations, plaintiffs argue that the claims in this action against the RFS Defendants relate back to the 2015 Malpractice Action. However, without deciding this relation-back issue, given that the 2015 Malpractice Action was dismissed, plaintiffs’ malpractice cause of action asserted herein against Rosenberg and RFS is dismissed.”