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.”

A house leaks.  Has the seller deceived the buyer?  Is the home inspector negligent?  Some, but not all of the questions are answered in Kazmark v Wasyln  2018 NY Slip Op 08990  Decided on December 27, 2018  Appellate Division, Third Department.

“In August 2008, defendant Jefferey M. Wasyln (hereinafter defendant) listed his residence for sale and completed a property condition disclosure statement (hereinafter PCDS) answering a series of questions regarding the condition of the property (see Real Property Law § 462). Plaintiffs signed a contract to purchase the property, hired defendant Richard J. Tarnowski to perform a home inspection and closed on the property in November 2008. Plaintiffs apparently began noticing water infiltration in the basement beginning in early 2009. In September 2011, during a regional flood, plaintiffs discovered water pouring into the basement and, upon further inspection, found mold and damage to the property’s foundation. In 2014, plaintiffs commenced this action against defendant for breach of contract, fraud/intentional misrepresentation, negligent misrepresentation and violation of Real Property Law § 465 (2) stemming from allegations that defendant knew or should have known about the material defects that he denied existed or that he listed as unknown in the PCDS. Plaintiffs also alleged professional malpractice against Tarnowski. Following disclosure, defendant moved for summary judgment dismissing the complaint against him. Supreme Court granted the motion. Plaintiffs appeal.”

“Supreme Court properly granted defendant’s motion for summary judgment dismissing plaintiffs’ claims of a violation of Real Property Law § 465 (2) and negligent and intentional misrepresentation because plaintiffs did not establish that defendant had actual knowledge of any material defect. “New York adheres to the doctrine of caveat emptor and imposes no liability on a seller for failing to disclose information regarding the premises when the parties deal at arm’s length, unless there is some conduct on the part of the seller which constitutes active concealment” (Simone v Homecheck Real Estate Servs., Inc., 42 AD3d 518, 520 [2007] [*2][citations omitted]; see Revell v Guido, 101 AD3d 1454, 1456 [2012]; Stoian v Reed, 66 AD3d 1278, 1279 [2009]). “A false representation in a disclosure statement may constitute active concealment” (Pettis v Haag, 84 AD3d 1553, 1554 [2011] [citations omitted]). However, “[t]he disclosures required on the PCDS are based solely on the seller’s ‘actual knowledge.’ Accordingly, a claim under Real Property Law § 465 (2) must allege the seller’s willful failure to comply with one or more of the obligations imposed on the seller under [Real Property Law] article 14, resulting in the buyer’s damages, and a claim for willful failure to disclose under this provision must allege that the seller had actual knowledge of a condition that was misrepresented by the disclosure contained in the PCDS” (Meyers v Rosen, 69 AD3d 1095, 1097 [2010], quoting Real Property Law §§ 461 [3]; 462 [2]).”

“Plaintiffs’ proof was insufficient to meet their burden of raising a triable issue of fact. Despite assertions that the defects existed for a substantial time, constructive knowledge does not [*3]apply to Real Property Law § 465 (2) (see Meyers v Rosen, 69 AD3d at 1098; Real Property Law § 461 [3] [limiting disclosures to seller’s actual knowledge]). The neighbors’ comments about repairs to the foundation were irrelevant without proof that the repairs were related to water problems (compare Sicignano v Dixey, 124 AD3d 1301, 1302 [2015]; Pettis v Haag, 84 AD3d at 1555). Even so, defendant acknowledged that he made such repairs, but that they resolved the water infiltration issues. Contrary to plaintiffs’ unsupported assertions that defendant installed drywall to conceal defects in the foundation, defendant and his wife testified that they finished a portion of the basement so their family could utilize more space in the home. They listed the property for sale at least 10 months after finishing the basement and had no thoughts of selling the property at the time that they made those improvements (see Gabberty v Pisarz, 10 Misc 3d 1010, 1020-1021 [Sup Ct, Nassau County 2005]). Plaintiffs assert that there are credibility issues to be addressed at trial, but these assertions are speculative and unsupported, providing no basis to deny summary judgment (see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 52 [2015]; Meyers v Rosen, 69 AD3d at 1098).”

The law firm is paid to safeguard escrow deposits in a film industry case.  Proceeds are misapplied and money is said to be missing.  Sue the lawfirm?  But…what about the agreement which states that the law firm in neither required to nor authorized to investigate?  What of the agreement that the escrow shall not be liable absent bad faith or willful disregard?

In Worldview Entertainment Holdings Inc. v Woodrow  2018 NY Slip Op 33372(U)
December 24, 2018  Supreme Court, New York County  Docket Number: 159948/2014,  Judge Melissa A. Crane holds that such exculpatory agreements may not be used by attorneys, who have a higher duty.

“The complaint alleges that Woodrow had primary responsibility for overseeing the financial, management, and employee relations affairs of Worldview, that he was the only person authorized to handle certain transactions with Worldview’s banks, creditors, and investors, and that he used his authority to misappropriate Worldview’s escrow monies. The complaint alleges that Woodrow defrauded Worldview out of at least $700,000 of escrow funds and that Goetz is liable for part of this sum, because Goetz, acting on Woodrow’s instructions, disbursed escrow monies to inappropriate recipients. Allegedly, Woodrow caused Goetz to pay money to Woodrow for his personal uses, to his mother’s estate, to his wife, to three debt collectors to satisfy Woodrow’s personal debts, and to an individual to settle a dispute for Woodrow. Allegedly, from May 2011 to May 2014, Goetz improperly disbursed $242,302 on Woodrow’s behalf, and perhaps more. ”

“Goetz argues that it is excuplated from plaintiffs’ claims under the provisions of the Film Fund Agreements. While exculpatory agreements have applied to escrow agents who were not attorneys (see Platinum Equity Advisors, LLC v SDI, Inc., 2014 WL 3670674, *4 [Sup Ct, NY County 2014]), these agreements are disfavored as to attorneys, particularly when the attorney drafted the agreement with the exculpatory provision (see Galasso, Langione, & Batter, LLP v Galasso, 53 Misc 3d 1202[A], 2016 NY Slip Op 51308[U], n 50 [Sup Ct, Nassau County 2016]). Boyajian drafted the Film Fund Agreements.

Both as escrow agent and as attorney, Goetz owed Worldview a fiduciary duty (Greenapple v Capital One, NA., 92 AD3d 548, 549 [l51 Dept 2012]; Ulico, 56 AD3d at 8). The attorney-client relationship comprises a “unique fiduciary reliance,” whereby the client is entitled to depend on the attorney “maintaining confidentiality, avoiding conflicts of interest, operating competently, safeguarding client property and honoring the clients’ interests over the lawyer’s” (Matter of Cooperman, 83 NY2d 465, 472 [1994]). “An agreement prospectively limiting a lawyer’s liability to a client for malpractice or other kinds of civil liability is unenforceable” (Restatement [Third] of the Law Governing Lawyers§ 54, Comment b).

Section 2 ( e) states that the escrow agent is released from liability provided that it holds the money in accordance with the agreement’s terms and pays such money to the “designated production company … ” This provision does not exculpate Goetz, because plaintiffs allege that Goetz paid at least some money other than to a production company. Goetz points out that the agreement does not require it to investigate any payments provided that the authorizing documents are correct and that the third-party investors and Worldview release Goetz against all claims arising out of Goetz following Woodrow’s instructions (,-r 2 [ e ]). Nonetheless, the court does not see how an attorney can be exculpated in regard to the misappropriation of funds, even if the attorney had no duty to investigate or did not benefit.

The Film Fund Agreements provide that the escrow agent is not liable for any act unless taken in bad faith, willful disregard of the agreement, or gross negligence (,-r 5). Goetz argues  that this provision means that it cannot be charged with negligence. As already stated, that is incorrect. “

The Statute of Limitations for legal malpractice in New York is 3 years under CPLR 214(6).  In New Jersey it might be 6 years, as the AD1 tells us.  However, for a legal malpractice case brought in New York, it has to be started within 3, not 6 years, as plaintiff found out in Soloway v Kane Kessler, PC  2019 NY Slip Op 00026  Decided on January 3, 2019 Appellate Division, First Department.

“The court correctly found the complaint time-barred under CPLR 202, New York’s “borrowing statute,” which requires a claim to be timely under both the New York limitations period and that of the jurisdiction where the claim is alleged to have arisen (Kat House Prods., LLC v Paul, Hastings, Janofsky & Walker, LLP, 71 AD3d 580 [1st Dept 2010]).

Plaintiff, a New Jersey resident, alleged legal malpractice in connection with defendants’ representation of him for numerous real estate transactions, a cause of action which has a three year statute of limitations in New York (CPLR 214[6]), and a six year limitations period in New Jersey (NJ Stat Ann 2A:14-1). The latest that the alleged malpractice could have occurred was February 7, 2013, the date set for closing on the last of the real estate matters. Because plaintiff commenced the action on October 28, 2016, more than three years later, it was correctly dismissed as untimely.”