It has been our observation that in legal malpractice cases Courts tend to dismiss more than in other settings, and that the probable reason for this higher-than-expected rate of dismissals is that Courts tend to favor attorneys over clients in a legal malpractice setting.  Chu v Legere    2018 NY Slip Op 32269(U)  September 14, 2018  Supreme Court, New York County  Docket Number: 150065/2018
Judge: Arlene P. Bluth is the rare case in which the solemn statements of Leon v. Martinez are actually applied.

“This legal malpractice case arises out of defendant’s relationship with plaintiffs sister (“Anne”). Defendant met Anne in 1988 and began a friendship that lasted until Anne passed away on July 25, 2016. Defendant also represented Anne in various legal matters including, but not limited to, an uncontested divorce in the 1990s, a real estate transfer in 2003 and a lease agreement for a studio in Queens in 2010.

Plaintiff contends that her sister sought legal advice from defendant to ensure that the disposition of her artwork would conform to her wishes. Plaintiff alleges that defendant failed to prepare or execute an updated will, prepare a~ updated inventory of assets and create a trust (or similar vehicle) to convey Anne’s artwork as she desired. Plaintiff maintains that after Anne passed away, her estate has faced numerous baseless claims and that these problems arise directly from defendant’s malpractice.”

“Anne last updated her will in 2003 and plaintiff insists that in the thirteen years before her death, she had made many changes to her assets and had become estranged from her husband. Plaintiff contends that during a deposition in a parallel proceeding in Queens County Surrogate’s Court, defendant admitted that he had not advised Anne about updating her will and waited until the final months of her illness when Anne was no longer able to attempt to complete the required tasks.

Plaintiff also alleges that there were a series of meetings between defendant and Anne about the sale and conservation of her artwork. At a meeiing on June 30, 2016, plaintiff argues that defendant prepared three separate durable power of attorney (“POA”) documents for Anne to execute and that two of the three were executed. Pl~intiffinsists that defendant did not include a statutory gift rider to these POAs which would have allowed an agent to assist Anne with estate planning. ”

“The Court recognizes that an attorney’s representation of a client on several distinct matters over many years does not automatically mean that the attorney represents a client for all matters. However, the fact that defendant was Anne’s sometime attorney helps defeat the motion to dismiss because, taking plaintiffs allegations as true, it is clear that Anne did use his professional services at times. And plaintiff claims that defendant took actions in his capacity as an attorney relating to PO As and to update Anne’s will. Defendant’s denial of plaintiffs allegations is not enough for this Court to grant his motion at this stage of the litigation.

Discovery may reveal that defendant was merely assisting his sick friend to gather information to present to a qualified estate attorney rather than acting as her attorney, that his efforts caused the estate no damage or that, even ifhe did undertake to represent her, he simply did not have enough time to complete certain tasks before Anne passed away. But the Court cannot grant defendant’s motion to dismiss under the circumstances here.”

Plaintiff was involved in several problematical joint real estate deals, each of which disappointed him as a participant.  Was the law firm negligent in the transactions and was plaintiff damaged thereby?  In Hobbick v Zegans  2018 NY Slip Op 32180(U)  September 5, 2018  Supreme Court, New York County  Docket Number: 159172/2017  Judge: Barbara Jaffe the answer is no.

“In April 2013, plaintiff and nonparty Calvin P. Hall jointly retained defendants to represent them in purchasing real property in Brooklyn. The closing was on September 10, 2013. Plaintiff believed that he was purchasing a 50 percent interest in the premises, and he obligated himself jointly and  severally on a purchase money mortgage of approximately $440,000. Some time after the September 10, 2013 closing, plaintiff learned that the deed reflected that his ownership interest in the premises was one percent, whereas Hall’s was 99 percent. In October 2013, unaware of defendants’ malpractice in failing to ensure his 50 percent interest in the Brooklyn property, plaintiff had defendants represent him in selling a property in Saugerties, New York. At the time, he and nonparty Christopher Matson each held a 50 percent interest in that property. Before contracting for the sale of that property, defendants failed to secure a written agreement between plaintiff and Matson establishing an equal division of net proceeds from the sale, “with appropriate co-tenant accounting adjustments.” That failure “created a crisis immediately before closing where Matson refused to close the transaction unless he received more than he was entitled to as co-tenant” with plaintiff. Thus, plaintiff was forced to accept less than the amount to which he was entitled, and incurred adverse tax consequences in avoiding litigation concerning the sale. ”

“By decision dated September 5, 2017, a third-party action for legal malpractice brought by plaintiff against defendants in Supreme Court, Kings County, was dismissed without prejudice. (NYSCEF 16). Plaintiff timely filed a notice of appeal. (NYSCEF 23, Exh. C). ”

“As plaintiff’s third-party claim was dismissed on the merits in the Kings County litigation, it may not be relitigated here. (See Heritage Realty Advisors, LLC v Mohegan Hill Dev. LLC, 58 AD3d 435, 436 [1st Dept 2009], Iv denied 12 NY3d 830 “[Not only are the two . actions based on the same transactions, but the dismissal of the prior action, to the extent that it found that MHD was not in existence at the time the compensation agreements at issue were entered into, was not merely  because of technical pleading defects, but on the merits”: complaint dismissed]; Singer v Boychuk, 194 AD2d 1049, 1051 f3d Dept 1993], Iv denied 82 NY3d 657 [grant of motion to dismiss under CPLR 321 l(a)(l) has effect of final judgment on merits]). That the dismissal was without prejudice and an appeal may be pending is of no moment. Even if the earlier decision is reversed, the action will .proceed in Kings County. ”

“On a motion to dismiss an action on the ground that it is barred by documentary evidence, the documentary evidence offered in support must utterly refute plaintiffs factual allegations, conclusively establishing the defense as a matter of law. (Goshen v Mutual Life Ins. Co. of New York, 98 NY 314, 326 [2002]; Leon v Martinez, 84 NY2d 83, 88 1994]). Here, although the email correspondence relied on by defendants constitutes evidence indicating that plaintiff knowingly agreed to the division of the proceeds per Matson’s ‘Counteroffer, it does not utterly refute plaintiffs allegations that defendants breached their duty·to him by failing to prepare a written agreement between him and Matson providing for an equal or rhore equitable division before entering into the contract of sale for the Saugerties property and that they failed to advise him of the tax consequences of the sale.
However, absent any factual bases in the record tending to show: 1) that Matson was amenable to dividing the sales proceeds otherwise, and 2) the tax consequence that could have been obtained with tax advice from defendants, plaintiff’s claim for damages is speculative, thereby rendering his claim deficient as a matter of law. “

Kaplan v Conway & Conway   September 4, 2018  Supreme Court, New York County  Docket Number: 158060/17  Judge: Frank P. Nervo runs into a familiar problem in legal malpractice settings.  Clients were the subject of an internal investigation at their brokerage and hired the attorneys.  Their claim is that the response to the investigation by the attorneys was negligent.  The familiar problem is that they cannot prove how the brokerage firm would have acted had the attorneys changed their strategy.

“The complaint alleges that plaintiffs, stock brokers then-employed by non party Morgan Stanley, retained defendants to assist them in connection with an investigation commenced by Morgan Stanley, allegedly at the behest of plaintiffs’ immediate superior, alleged to have been acting for unspecified retaliatory reasons. The complaint faults defendants for: (I) having advise plaintiffs to resign from their positions, before the investigation was formally concluded; (2) failing to press for formal closure of the investigation; (3) failing to advocate for an investigation of plaintiffs’ immediate superior; and (4) failing to deter Morgan Stanley from including what the complaint characterizes as false and defamatory statements on the Form U-5’s that Morgan Stanley filed with the Financial Industry Regulatory Authority (FINRA). The complaint alleges two causes of action. The first alleges that, had defendants acted competently, no investigation of plaintiffs would have been reported on their Form U-5’s, or, at least, “the U5’s would have been filed with more favorable language than the language which eventually ended up in the U-5’s.”

“This claim, that plaintiffs would not have suffered damages, had defendants secured “more favorable language,” is utterly vague, and the claim, that some other language, to which Morgan Stanley would have agreed, would have averted plaintiffs’ damages, is speculative, and, therefore, insufficient to support a claim of legal malpractice. See Brill & Meisel v Brown, 113 AD3d 435, 436 (1st Dept 2014). Moreover, Conway avers that he drafted alternative language (see Conway affirmation, exhibits 4-6), but that plaintiffs ignored it in the short time that was available for possible changes, because they, and their parents, were pressing him to prefer charges against Morgan Stanley’s attorney with the ethics committee of the New York State Bar Association. Conway also avers that he provided plaintiffs with language with which they could respond to Morgan Stanley’s allegations on the U-5’s, but that plaintiffs chose not to respond.

Plaintiffs’ contention, that defendants failed to take action against plaintiffs’ immediate superior, also fails. Even if the letter of engagement that plaintiffs signed, which refers to “represent[ation] … in a matter related to your employment interview and investigation by Morgan Stanley” (Conway affirmation, exhibit 8 at 1) could be read broadly enough to encompass action against plaintiff’s supervisor, the complaint does not suggest what such action might be. As between plaintiffs and their supervisor, all agents registered with FINRA, any legal action would have had to be an arbitration proceeding before a FINRA arbitrator. The letter of engagement explicitly “does not include any work in the courts, or FINRA arbitration” (id. At 2), and in any event, plaintiffs do not dispute that they discharged defendants before any proceeding could have been brought. “

Did the attorneys represent the clients or not?  This is the central question in First Choice Plumbing Corp. v Miller Law Offs., PLLC  2018 NY Slip Op 05825  Decided on August 22, 2018  Appellate Division, Second Department.  The answer is not yet known.  What the AD did reaffirm is that only certain kind of “documents” may be used on a CPLR 3211 (a)(1) motion seeking to dismiss on “documentary evidence.”

“ORDERED that the order is reversed insofar as appealed from, on the law, with costs, that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that no attorney-client relationship existed is denied, so much of the order as, in effect, denied, as academic, the remaining branches of the defendant’s motion is vacated, and the matter is remitted to the Supreme Court, Nassau County, for a determination on the merits of the remaining branches of the defendant’s motion.

The plaintiffs First Choice Plumbing Corp. (hereinafter First Choice) and Malacy Plumbing Supply, Inc. (hereinafter Malacy), commenced this action to recover damages for legal malpractice against the defendant Miller Law Offices, PLLC, for its alleged negligence concerning two mechanic’s liens. The complaint alleges that the plaintiffs failed to receive full payment for plumbing services and supplies they provided on a construction project, and that the plaintiffs each filed a mechanic’s lien to recover the monies owed. The complaint further alleges that the liens were extended once, but subsequently lapsed and were extinguished by operation of law, due to the defendant’s negligence.

The defendant made a pre-answer motion to dismiss the complaint pursuant to CPLR 3211(a)(1), (5), and (7). The defendant argued, among other things, that no attorney-client relationship existed with respect to the mechanic’s liens. In support of that contention, the defendant submitted copies of the lien extensions, which were filed by nonparty Speedy Lien; a copy of a contract between First Choice and nonparty Construction Lien Consultants, LLC, to investigate, recover, and/or settle the debts owed to First Choice, as reflected in one of the mechanic’s liens; and emails and a letter. In the order appealed from, the Supreme Court found that the defendant submitted documentary evidence which utterly refuted the plaintiffs’ allegation that there was an attorney-client relationship between them and the defendant with respect to the liens and their extensions. Accordingly, the court granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that no attorney-client relationship existed, and denied, in effect, as academic, the remaining branches of the defendant’s [*2]motion. The plaintiffs appeal.

A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence “may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Leon v Martinez, 84 NY2d 83, 88). “In order for evidence to qualify as documentary,’ it must be unambiguous, authentic, and undeniable” (Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996-997; see Fontanetta v John Doe 1, 73 AD3d 78, 86). “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” (Fontanetta v John Doe 1, 73 AD3d at 84-85 [internal quotation marks omitted]). “Conversely, letters, emails, and affidavits fail to meet the requirements for documentary evidence” (25-01 Newkirk Ave., LLC v Everest Natl. Ins. Co., 127 AD3d 850, 851; see Phillips v Taco Bell Corp., 152 AD3d 806, 807; Prott v Lewin & Baglio, LLP, 150 AD3d 908, 909; Gawrych v Astoria Fed. Sav. & Loan, 148 AD3d 681, 682).

Here, the emails and letters submitted in support of the defendant’s motion were not documentary evidence within the meaning of CPLR 3211(a)(1). To the extent that the other evidence submitted was documentary, that evidence did not conclusively establish the absence of an attorney-client relationship between the plaintiffs and the defendant with respect to the liens and their extensions. Thus, the Supreme Court should not have granted that branch of the defendant’s motion which was to dismiss the complaint on this ground.”

Yesterday we discussed the legal malpractice aspect of Billiard Balls Mgt. LLC v Mintzer Sarowitz Zeris  Ledva & Meyers, LLP  2018 NY Slip Op 32019(U)  August 17, 2018
Supreme Court, New York County  Docket Number: 153477/2016  Judge: Carol R. Edmead.  It was dismissed, mostly on the basis of lack of privity, backed up by lack of evidence of departure.

Here is the decision on contribution and indemnity:

“Pillinger argues that the common-law indemnification claim must be dismissed as Mintzer cannot be indemnified for its own negligence. In opposition, Mintzer argues broadly that it has stated a valid claim for common-law indemnification. It does not, however, make any specific response to Pillinger’s argument or defend its common-law indemnification claim with any detail.

Generally, common-law indemnification requires one party that is “actively at fault in bringing about the injury” to indemnify another party that “is held responsible solely by operation of law because of [its] relation to the actual wrongdoer” (McCarthy v Turner Constr., ‘”‘ Inc., 17 NY3d 369, 374, 375 [2011] [internal quotation marks and citation omitted]). Here, if Mintzer is found liable to Billiard Balls, it will necessarily be because it has been found liable for its own negligence, not because it was found liable solely by operation of law. Thus, as Mintzer does not state or have a cause of action against Pillinger for common-law indemnification, the branch of the motion that seeks dismissal of that claim must be granted.

The Third-party Complaint alleges that “if the Plaintiff sustained damages … and recovers judgment against Mintzer, such damages will have been brought about in whole or in part as a result of the actions and conduct of Pillinger” (Third-party Complaint, No. 45). Accordingly, Mintzer alleges that, in the event of a verdict in Billiard Balls’ favor, it “shall be entitled to contribution from Pillinger, for an equitable share of any such judgment on the basis of the comparative degree of culpability of [Pillinger]” (id.).

Pillinger contends that the claim for contribution must be dismissed, as it did not cause, contribute to, or share in Mintzer’s alleged malpractice. Mintzer mounts a more detailed opposition to this branch of the motion seeking dismissal of the contribution claim than it does for the other causes of action in the Third-party complaint.

Mintzer argues that Pillinger contributed to Billiard Balls’ alleged damages. Specifically, Mintzer contends that Pillinger failed to make a showing of a meritorious defense, in their opposition to Gershman’s motion for a default judgment, and that failure contributed to Billiard Balls’ damages. Mintzer also claims that Pillinger contributed to the delay to answer because the Second Department noted:
“While [Billiard Balls’ general manager] averred that Billiard did not attempt to
avoid interposing an Answer, he acknowledged that he did nothing with regard to
interposing an answer until after the motion for leave to enter judgment had been
served by the plaintiff, at which time there was still an approximately 30-day
delay between the service of the motion and the date of the verified answer. Thus,
the delay was not attributable to insurance carrier delay, but rather, resulted from
Billiard’s attempts and negotiations to alter the outcome of its insurance carrier’s
disclaimer. Under these circumstances, we find the excuse for Billiard’s default
unreasonable” “

Billiard Balls Mgt. LLC v Mintzer Sarowitz Zeris  Ledva & Meyers, LLP  2018 NY Slip Op 32019(U)  August 17, 2018  Supreme Court, New York County  Docket Number:  153477/2016   Judge: Carol R. Edmead is an interesting twist on the privity question.

“This is a legal malpractice action arising out of an automobile accident. Defendant Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP (Mintzer) briefly represented the plaintiff Billiard Balls Management (Billiard Balls) in an underlying action in Kings County, Gershman v Ahmad (index No. 18893/12) (the Gershman matter, or the underlying action), where the plaintiff Lizaveta Gershman (Gershman) alleged that Billiard Balls was liable under the Dram Shop Act.

Billiard Balls was insured at the time of the underlying accident by nonparty Capital Indemnity Corporation (Capital). Capital engaged Mintzer to represent Billiard Balls in the Gershman matter. Mintzer entered into two stipulations with counsel for Gershman, both of which extended Billiard Balls’ time to answer the complaint. However, Capital by letter dated December 28, 2012, denied coverage to Billiard Balls 1 and informed Mintzer that it would not be paying Billiard Balls’ legal bills. Mintzer, by letter dated January 25, 2013, informed Gershman’ s counsel that “we have been directed by the carrier not to interpose an Answer on behalf of Billiard Balls Management, LLC” (NYSCEF doc No. 62, ii 2).

On January 11, 2013, Billiard Balls’ time to answer Gershman’ s complaint expired. However, according to Aristotle Hatzigcorgiou (Hatzigcorgiou), a principal of Billiard Balls, Mintzer did not inform Billiard Balls about this deadline (Hatzigcorgiou aff, ii 9, NYSCEF doc No. 87). Nor did Mintzer move to be relieved as counsel. According to Billiard Balls, it did not learn of the deadline to answer until counsel for Gershman served a notice of motion, dated September 30, 2013, for a default judgment against Billiard Balls pursuant to CPLR 3215 (a) (b).

Only after it received the motion for a default against it did Billiard Balls retain thirdparty defendant Pillinger to defend against the motion (id., ii 1 O; see also NYSCEF doc Nos. 88 and 89 [emails between Billiard Balls and Pillinger exchanged in October 2013 ]). Pillinger opposed Gershmn’s motion and cross-moved to compel Gershman to accept Billiard Balls’ proposed answer. By an order dated May 7, 2014 (the May 2014 Order), the trial court in the underlying matter denied Gershman’s motion for a default and granted Billiard Balls’ motion to compel Gershman to accept its proposed answer. More than a year later, the Appellate Division, Second Department, reversed the May 2014 Order (Gershman v Ahmad, 131 AD3d 1104 [2d Dept 2015]). ”

“The salient fact related to Mintzer’s claim of legal malpractice against Pillinger is that Pillinger never represented Mintzer. Pillinger argues that the legal malpractice claim must be dismissed as it has no duty, except to clients, to practice law reasonably well. Indeed, the Appellate Division has held that “New York courts impose a strict privity requirement to claims of legal malpractice” and that “an attorney is not liable to a third party for negligence in performing services on behalf of his client” (Federal Ins. Co. v North Am. Specialty Ins. Co., 47 AD3d 52, 59 [1st Dept 2007]; but see Kumar v American Tr. Ins. Co. (49 AD3d 1353 [4th Dept 2008] [finding an exception to this strict-privity rule in cases involving equitable subrogation]).

Neither the Third-party Complaint, nor Mintzer’s opposftion alleges that an exception to the strict privity rule is appropriate because the doctrine of equitable subrogation is applicable. As Mintzer does not allege privity either, it has not stated a cause of action for legal malpractice against Pillinger. Nor does it have a cause of against Pillinger for legal malpractice. It is plain that Mintzer is not in privity with Pillinger and that equitable subrogation is not applicable to the relationship between the two law firms (see Fasso v Doerr, 12 NY3d 80 [2009] [noting that “[i]t is well established that when an insurer pays for losses sustained by its insured that were occasioned by a wrongdoer, the insurer is entitled to seek recovery of the monies it expended under the doctrine of equitable subrogation”]. Accordingly, the branch of Pillinger’ s motion that seeks dismissal of Mintzer’ s claim for legal malpractice must be granted.”

 

 

The question of limited retainers v. handling the entire action for a client comes up in Provenzano v Cellino & Barnes, P.C.  2018 NY Slip Op 32063(U)  August 16, 2018  Supreme Court, Suffolk County  Docket Number: 14-18725  Judge: Joseph C. Pastoressa.  Plaintiff was injured in a motor vehicle accident which Cellino & Barnes took.  They did not file a WC claim for the client who alleged she was injured in a work-related accident.  Malpractice?

“Capetola testified that he did not handle workers’ compensation claims for defendant, and would
refer any such claims to outside counsel. He recalled that during the intake interview with plaintiff, she told him that she was struck by a car after she finished work. He could not recall whether plaintiff inquired about a workers’ compensation claim, or the number of times that he met with plaintiff. Capetola recalled that he assisted plaintiff in filing a no fault insurance claim. Plaintiff did not complain to Capetola about his handling of her accident case at any point during his representation. The retainer agreement indicated that defendant’s representation of plaintiff was “to prosecute [her] claim for injuries and damages sustained as a result of an accident … (and was] limited to all steps necessary to bring the action to trial, verdict or settlement and· does not include appellate practice, Surrogate’s and/or estate work, legal work pertaining to Medicare Set Aside issues, and legal work pertaining to Medicare lien evaluation.” The scope of legal services to be provided included “initial and ongoing investigation of [the] incident; securing potential witnesses and evidence; gathering appropriate medical records, employment records, wage records, education records and other records; drafting, filing, and responding to appropriate court documents; selection and retention of experts and investigators as necessary; appearance at court proceedings, depositions and arbitrations; conducting settlement negotiations; preparing for trial as appropriate and necessary; and maintaining appropriate contact with the client throughout.” ”

“Defendant contends that it was retained to pursue a tort action on plaintiffs behalf; therefore, it
had no duty to bring a workers’ compensation claim and plaintiffs complaint should be dismissed.
Defendant made a prima facie showing that plaintiff retained its services to bring only a negligence
action against the driver of the vehicle that struck her (see Block v Brecher, Fishman, Feit, Heller,
Rubin & Tannenbaum, 301 AD2d 400, 400, 753 NYS2d 84 [1st Dept 2003]). Plaintiff testified that
when she inquired about a workers’ compensation claim, defendant told her that she did not qualify for workers’ compensation benefits and that he “was not going that route.” Additionally, Capetola testified that he did not handle workers’ compensation claims on defendant’s behalf, and that he  generally referred any such claims to outside counsel. There is no indication in the record that Capetola advised plaintiff that he would file a workers’ compensation claim on her behalf and failed to do so. ”

“Accordingly, defendant’s motion for summary judgment dismissing the complaint is granted and
the cross-motion is denied. ”

 

Judiciary Law § 487 is an ancient part of the common law, recently elevated from a mere statute by the Court of Appeals.  That being said, the First and the Second Departments have a major difference in an agreed upon definition.  Here, in Bill Birds, Inc. v Stein Law Firm, P.C.
2018 NY Slip Op 05743  Decided on August 15, 2018  the Appellate Division, Second Department reminds us that “deceit” is the operative word and “chronic, extreme pattern of legal delinquency” is mere surplusage.  The First Department has different requirements.

“The defendants represented the plaintiffs in a trademark dispute against Equity Management, Inc. (hereinafter EMI), and General Motors, Service Parts Operation (hereinafter GM). In 2006, the defendants commenced an action (hereinafter the underlying action) on the plaintiffs’ behalf against EMI and GM in the United States District Court for the Eastern District of New York, alleging breach of a trademark licensing agreement and fraud. The complaint alleged that EMI and GM misrepresented to the plaintiffs that they had an ownership interest in the licensed products which in fact they did not have. On March 31, 2008, the court in the underlying action granted the motion of EMI and GM to dismiss the action on the ground that the parties’ agreement required that disputes relating to the agreement be commenced in the federal or state courts in Michigan.

Thereafter, the plaintiffs commenced the instant action against the defendants asserting causes of action to recover damages for legal malpractice, breach of contract, fraud, and a violation of Judiciary Law § 487. In the complaint, the plaintiffs set forth two alternative theories of liability. Under the theory premised upon legal malpractice, the plaintiffs asserted that they had meritorious claims against EMI and GM, and solely due to the defendants’ negligence, they were unable to recover monetary damages in the underlying action because the defendants failed to commence an action in the proper forum, and the statute of limitations had run. The plaintiffs further alleged fraud and a violation of Judiciary Law § 487, in that the defendants misrepresented the merits of the underlying action to them and to the court in the underlying action, in order to induce the plaintiffs to retain the defendants’ services to prosecute a meritless action and pay legal fees.”

“Contrary to the defendants’ contention, the cause of action alleging a violation of Judiciary Law § 487 was not duplicative of the cause of action alleging legal malpractice. “A violation of Judiciary Law § 487 requires an intent to deceive, whereas a legal malpractice claim is based on negligent conduct” (Moormann v Perini & Hoerger, 65 AD3d 1106, 1108; see Lauder v Goldhamer, 122 AD3d 908, 911; Sabalza v Salgado, 85 AD3d 436, 438).

Nevertheless, the Supreme Court should have granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging a violation of Judiciary Law § 487. A chronic extreme pattern of legal delinquency is not a basis for liability pursuant to Judiciary Law § 487 (see Dupree v Voorhees, 102 AD3d 912, 913). Further, the plaintiffs failed to allege sufficient facts demonstrating that the defendant attorneys had the “intent to deceive the court or any party” (Judiciary Law § 487; see Schiller v Bender, Burrow, & Rosenthal, LLP, 116 AD3d 756, 759; Agostini v Sobol, 304 AD2d 395, 396). Allegations regarding an act of deceit or intent to deceive must be stated with particularity (see CPLR 3016[b]; Facebook, Inc. v DLA Piper LLP [US], 134 AD3d 610, 615; Armstrong v Blank Rome LLP, 126 AD3d 427; Putnam County Temple & Jewish Ctr., Inc. v Rhinebeck Sav. Bank, 87 AD3d 1118, 1120). That the defendants commenced the underlying action on behalf of the plaintiffs and the plaintiffs failed to prevail in that action does not provide a basis for a cause of action alleging a violation of Judiciary Law § 487 to recover the legal fees incurred.”

In general, a legal malpractice case based upon a problemed medical malpractice case may be the most difficult litigation case known;  it requires competence in two different spheres, and a lot of experts.  A snow and ice case is difficult for plaintiff, since there are so many defenses.  A legal malpractice case based upon a lost snow and ice case is downright depressing.

Blair v Loduca  2018 NY Slip Op 05744  Decided on August 15, 2018  Appellate Division, Second Department is just such a case.  Plaintiff slipped on ice outside the building where she was employed.  Attorney failed to determine or sue the correct owner.

“In 2008, the plaintiff, who was a security guard for an apartment building, allegedly was injured when she slipped and fell on ice outside the building during a snowstorm. A few months later, she retained the defendants to prosecute an action to recover damages for her personal injuries (hereinafter the underlying action). The Supreme Court granted a motion by the defendant in the underlying action pursuant to CPLR 3211(a)(8) to dismiss the complaint for lack of personal jurisdiction over that defendant, a limited liability company which was formally dissolved in 2007 and did not own the building at the time of the accident. Subsequently, the plaintiff commenced this action against the defendants, alleging that they committed legal malpractice in the underlying action by suing the wrong defendant and by doing so just before the expiration of the statute of limitations, despite having been retained by the plaintiff shortly after the accident.

After discovery in this action, the defendants moved for summary judgment dismissing the complaint on the basis that the underlying action was not viable due to, among other things, the storm in progress rule. The Supreme Court denied the motion, finding that triable issues of fact existed as to whether the property owner created or exacerbated the dangerous condition that allegedly caused the plaintiff’s accident. The defendants appeal.”

“In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly dangerous or defective condition nor had actual or constructive notice of its existence (see Martino v Patmar Props., Inc., 123 AD3d 890, 890; Kruger v Donzelli Realty Corp., 111 AD3d 897; Smith v Christ’s First Presbyt. Church of Hempstead, 93 AD3d 839; Meyers v Big Six Towers, Inc., 85 AD3d 877). “Under the so-called storm in progress’ rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm” (Marchese v Skenderi, 51 AD3d 642, 642; see Solazzo v New York City Tr. Auth., 6 NY3d 734; Dumela-Felix v FGP W. St., LLC, 135 AD3d 809, 810; McCurdy v Kyma Holdings, LLC, 109 AD3d 799, 799; Smith v Christ’s First Presbyt. Church of Hempstead, 93 AD3d 839, 840; Weller v Paul, 91 AD3d 945, 947; Mazzella v City of New York, 72 AD3d 755, 756). If a storm is ongoing, and a property owner elects to remove snow, the owner must do so with reasonable care or it could be held liable for creating a hazardous condition or exacerbating a natural hazard created by the storm (see Kantor v Leisure Glen Homeowners Assn., Inc., 95 AD3d 1177; Petrocelli v Marrelli Dev. Corp., 31 AD3d 623; Salvanti v Sunset Indus. Park Assoc., 27 AD3d 546; Chaudhry v East Buffet & Rest., 24 AD3d 493). In such an instance, that property owner, if moving for summary judgment in a slip-and-fall case, must demonstrate in support of his or her motion that the snow removal efforts he or she undertook neither created nor exacerbated the allegedly hazardous condition which caused the injured plaintiff to fall (see Kantor v Leisure Glen Homeowners Assn., Inc., 95 AD3d at 1177).

In support of their motion for summary judgment dismissing the complaint in this action, the defendants submitted the plaintiff’s deposition testimony, the deposition testimony of the building’s doorman, the affidavit of a meteorologist, and certified climatological data. These submissions demonstrated that a storm was in progress at the time of the accident, that there was no preexisting ice on the ground when the storm commenced, and that the property owner did not create or exacerbate the allegedly dangerous condition created by the storm in progress (see Aronov v St. Vincent’s Hous. Dev. Fund Co., Inc., 145 AD3d 648, 649; Kantor v Leisure Glen Homeowners Assn., Inc., 95 AD3d at 1177; Ali v Village of Pleasantville, 95 AD3d 796, 797). Since the defendants made a prima facie showing that the storm in progress rule applied to the underlying action, the burden shifted to the plaintiff to show that something other than the precipitation from the storm in progress caused the accident (see Baker v St. Christopher’s Inn, Inc., 138 AD3d 652, 653; Burniston v Ranric Enters. Corp., 134 AD3d 973, 974; Meyers v Big Six Towers, Inc., 85 AD3d 877, 877-878; Alers v La Bonne Vie Org., 54 AD3d 698, 699). The plaintiff failed to raise a triable issue of fact.”

In the end, it only matters that the law firm was given notice of the claims. D’Angelo v Kujawski   2018 NY Slip Op 05750  Decided on August 15, 2018  Appellate Division, Second Department stands for the proposition that once the law firm had notice of the claims, then substitution of the proper party as plaintiff did not prejudice the law firm.

“In November 2011, the Surrogate’s Court issued letters of limited administration to the plaintiff for the decedent’s estate. Thereafter, the VA denied the plaintiff’s claim submitted by K & K. Subsequently, by letter dated December 20, 2013, the defendant Mark C. Kujawski, on behalf of K & K, informed the plaintiff that K & K had been unable to retain a suitable medical expert and, as a result, would no longer continue to represent her in the case. Thereafter, the plaintiff, pro se, commenced an action in the United States District Court for the Eastern District of New York (hereinafter the District Court) against the United States, inter alia, to recover damages for medical malpractice and wrongful death. An amended complaint was thereafter filed by counsel. The District Court dismissed the federal action, finding that the claims set forth in the amended complaint had not been presented to the VA in the notice of claim.

Thereafter, by summons and complaint dated and filed December 15, 2016, the plaintiff commenced this action to recover damages for legal malpractice against Kujawski, K & K (hereinafter together the appellants), and the other attorney who was engaged pursuant to the retainer agreement. The caption did not state that the plaintiff was suing in her capacity as the administrator of the decedent’s estate. However, the complaint alleged that the plaintiff had been appointed administrator of the decedent’s estate and detailed the history of the appellants’ engagement to pursue a claim against the VA related to the decedent’s death, and the eventual dismissal of the federal action by the District Court. The appellants moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them on the basis that the plaintiff, in her individual capacity, did not have a viable claim against them since the plaintiff engaged K & K in her capacity as the administrator of the decedent’s estate. The plaintiff cross-moved for leave to amend the complaint to substitute herself in her representative capacity as the plaintiff in place of herself in her individual capacity.

The Supreme Court, inter alia, granted the plaintiff’s cross motion for leave to amend the complaint and denied, as academic, the appellants’ motion to dismiss the complaint insofar as asserted against them.”

“The Supreme Court providently exercised its discretion in granting the plaintiff leave to amend the complaint to substitute herself in her representative capacity as the plaintiff in place of herself in her individual capacity. The proposed amendment, which only sought to shift the causes of action from the plaintiff in her individual capacity to herself in her representative capacity, was proper since the allegations set forth in the complaint gave the appellants notice of the legal malpractice causes of action being asserted against them in the amended complaint (see United Fairness, Inc. v Town of Woodbury, 113 AD3d at 755; Matter of Highland Hall Apts., LLC v New York State Div. of Hous. & Community Renewal, 66 AD3d at 682; JCD Farms v Juul-Nielsen, 300 AD2d at 446; Plotkin v New York City Tr. Auth., 220 AD2d at 654). Moreover, the appellants’ contention that they would be prejudiced by the amendment because the applicable statute of limitations had expired by the time the plaintiff sought leave to amend the complaint is without merit, since the original complaint was timely filed and gave the appellants notice of the transactions and occurrences pleaded in the amended complaint (see CPLR 203[f]; see also George v Mt. Sinai Hosp., 47 NY2d 170, 178; Wells Fargo Bank, N.A. v Eitani, 148 AD3d 193, 202).

Accordingly, the Supreme Court providently exercised its discretion in granting the plaintiff’s cross motion for leave to amend the complaint and, in light of the amendment, properly denied, as academic, the appellants’ motion to dismiss the complaint.”