It is the rare legal malpractice case that falls into the privity exception.  As a matter of social policy and definitely to limit legal malpractice cases, Courts impose a very strict privity requirement.  No attorney-client relationship, no legal malpractice case, with a small exception for fraud or malice. Webster v Sherman  2018 NY Slip Op 06590  Decided on October 3, 2018  Appellate Division, Second Department does fall into this small crack.  However, even so, plaintiff was not afforded any continuous representation tolling.

“This action arises out of a 1995 agreement between the plaintiff and the defendant Rochelle Sherman (hereinafter Rochelle) pursuant to which Rochelle agreed to transfer half of her shares in Garden Care Center, Inc. (hereinafter Garden Care), to the plaintiff. Garden Care operated a nursing home, so governmental approval for the transfer of ownership was required. In connection with the proposed transfer, the plaintiff and Rochelle entered into an escrow agreement on or about April 1, 2003, in which the defendant, Tenzer and Lunin, LLP (hereinafter T & L), was appointed to act as the escrow agent.

Conditional approval of the transfer of Rochelle’s shares to the plaintiff was granted by the New York State Public Health Council in a letter dated November 19, 2003. T & L was instructed that to complete the requirements for certification approval, it had to contact the regional office of the New York State Office of Health Systems Management within 30 days of receipt of the letter. In a follow-up letter to T & L dated December 5, 2005, the New York State Department of Health (hereinafter DOH) noted that the regional office had not been contacted and that the project would be considered abandoned unless T & L provided to the DOH documentation that the regional office was contacted within 30 days from the date of the follow-up letter. By letter dated January 11, 2006, T & L informed the DOH that the closing of the transfer had not taken place because the consent of the other shareholders of Garden Care, as well as the consent of Garden Care’s lender, had not been obtained. In March 2006, the DOH notified T & L that it considered the transfer application abandoned.”

“With respect to the cause of action alleging legal malpractice, although the Supreme Court properly determined that there was no attorney-client relationship between the plaintiff and T & L (see Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 AD3d 790, 792; Lombardi v Lombardi, 127 AD3d 1038, 1042; Terio v Spodek, 63 AD3d 719, 721), the second amended complaint set forth a cause of action which fell “within the narrow exception of fraud, collusion, malicious acts or other special circumstances under which a cause of action alleging attorney malpractice may be asserted absent a showing of privity” (Mr. San, LLC v Zucker & Kwestel, LLP, 112 AD3d 796, 797 [internal quotation marks omitted]; see Ginsburg Dev. Cos., LLC v Carbone, 85 AD3d 1110, 1112).”

“The statute of limitations for a cause of action alleging legal malpractice is three years [*3]from the accrual of the cause of action (see CPLR 214[6]; Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d 1085, 1086; Farage v Ehrenberg, 124 AD3d 159, 163). “Accrual is measured from the commission of the alleged malpractice, when all facts necessary to the cause of action have occurred and the aggrieved party can obtain relief in court . . . regardless of when the operative facts are discovered by the plaintiff” (Farage v Ehrenberg, 124 AD3d at 164 [internal citations omitted]; see McCoy v Feinman, 99 NY2d 295, 301; Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d at 1086).

However, legal malpractice claims which would otherwise be barred by the statute of limitations are timely if the doctrine of continuous representation applies (see Glamm v Allen, 57 NY2d 87, 91-94; Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 735; Farage v Ehrenberg, 124 AD3d at 164), in which case the three-year statute of limitations is tolled for the period following the alleged malpractice “until the attorney’s continuing representation of the client on a particular matter is completed” (Farage v Ehrenberg, 124 AD3d at 164; see Zorn v Gilbert, 8 NY3d 933, 934; Glamm v Allen, 57 NY2d at 93). For the doctrine of continuous representation to apply, there must be clear indicia of “an ongoing, continuous, developing, and dependent relationship between the client and the attorney” (Aseel v Jonathan E. Kroll & Assoc., PLLC, 106 AD3d 1037, 1038 [internal quotation marks omitted]; see Farage v Ehrenberg, 124 AD3d at 164).

Here, T & L met its prima facie burden by establishing that the last date of the alleged malpractice occurred on January 11, 2006, and the action against it was not commenced until February 6, 2013 (see 3rd & 6th, LLC v Berg, 149 AD3d 794, 795; Aseel v Jonathan E. Kroll & Assoc., PLLC, 106 AD3d at 1038). In opposition, the plaintiff failed to raise a triable issue of fact as to whether continuous representation tolled the statute of limitations (see 3rd & 6th, LLC v Berg, 149 AD3d at 795-796; Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d at 1087).”

Golub v Shalik, Morris & Co., LLP  2018 NY Slip Op 32358(U)  September 21, 2018  Supreme Court, New York County  Docket Number: 158055/2017  Judge: Barbara Jaffe presents a difficult analysis of the statute of limitations. When it commences and whether continuing representation tolls the statute are the cornerstones of this opinion.

“On August 16, 2012, ARG transferred his 50 percent interest in a property in Southampton, New York, as a gift to The Aaron Richard Golub 2012 Qualified Personal Residence Trust (QPRT). As of August 27, 2012, the property as a whole was appraised at $9 million. In reporting the value of the gift as one-half the appraised value, defendants erred as the 50 percent interest was “hon-controlling” and not easily sold. Defendants also failed to observe that the correct value of the gift should have been the remainder interest after the expiration of the QPRT, not the gross value of the non-controlling interest. These errors resulted in the gift being “overreported” and the expenditure of too much of AR G’s lifetime gift tax exemption.

Defendants also incorrectly prepared and filed the 2012 Form 709 by reporting that the recipient was plaintiff Darrow Golub (DG) instead of the QPRT. As a result, the gift was also “under-reported” by $13,000 due to defendants’ erroneous application of the annual gift tax exclusion to the gift which does not qualify for it. The basis of the gift was also incorrectly reported as $4.5 million, which will result in an inaccurately high figure for purposes of calculating capital gain or loss.”

“Apart from ARG’s self-serving and unsupported allegations, plaintiffs offer no clear indicia of an ongoing, continuous, developing, and dependent relationship between the parties such that absent other circumstances, defendants’ representation was continuous with respect to the QPRT. WFS’s website, containing a general description of services rendered does not constitute an agreement between the parties, and the assurance of the SM partner that he would continue to provide the same accounting services performed by Frushtick is not sufficiently
specific to satisfy the legal requirements for proving continuous representation as to the
underlying malpractice relating to the QPRT. That defendants offer no affidavit is of no moment
as it is plaintiffs’ burden to demonstrate continuous representation. (See Davis v Cohen &
Gresser LLP, 160 AD3d 484 [l51 Dept2018] [plaintiff bears burden of showing that statute of
limitations has been tolled or does not apply]).

However, as it is undisputed that a 2014 Form 709 was required for the QPRT to achieve its purpose and that the errors in the 2012 Form 709 were not discovered until 2016, it was reasonably expected that until the termination of their services, defendants would follow through with the filing of a 2014 Form 709. This reasonable expectation reflects both a mutual understanding of the need for further representation with respect to the QPRT and plaintiffs’ reliance upon a continuous course of services related thereto. That defendants failed to file the 2014 Form 709, that they were not asked to do so, or that the alleged errors in the 2012 Form 709 precluded the filing of a 2014 Form 709 does not disprove the mutual understanding absent any offer of proof from defendants and given Harris’s assertion that the duty to file a 2014 Form 709 is implicit in the filing of the 2012 Form 709. Thus, plaintiffs satisfy their burden of demonstrating a factual issue as to whether defendants continuously represented them with respect to the QPRT. To accept defendants’ argument that they are shielded from liability by their own negligence would be inequitable at this stage of the proceedings. (Cf Deitz vKelleher & Flink, 232 AD2d 943 [3d Dept 1996] [defendant cannot use own negligence to shield itself from malpractice]). “

Jonns v Fischbarg  2018 NY Slip Op 32353(U)  September 18, 2018  Supreme Court, New York  County  Docket Number: 150729/2017 Judge: Kathryn E. Freed which we discussed yesterday for its lesson on the statute of limitations is also worthwhile to read for how litigation costs can be part of legal malpractice damages.  In short, those damages can include litigation expenses incurred in an attempt to avoid, minimize or reduce the damage caused by the attorney’s wrongful conduct.

“To prevail on a claim for legal malpractice, a plaintiff must establish three elements: (1) that the attorney failed to exercise the degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community, (2) that such negligent failure was a proximate cause of the loss in question, and (3) that the plaintiff sustained actual and ascertainable damages. (See Barbara King Family Trust v Voluto Ventures LLC, 46 AD3d 423, 424 [1st Dept 2007].)

The plaintiffs burden of proof in a legal malpractice action is a heavy one. (See Lindenman v Kreitzer, 7 AD3d 30, 34 [1st Dept 2004].) In regard to the element of proximate causation, an “attorney’s conduct or inaction is the proximate cause of a plaintiffs damages if but for the attorney’s negligence the plaintiff would have succeeded on the merits of the underlying action, or would not have sustained actual and ascertainable damages.” (Gallet, Dreyer & Berkey. LLP v Basile, 141AD3d405, 405 [1st Dept 2016].) A plaintiffs damages in connection with such a claim may include “litigation expenses incurred in an attempt to avoid, minimize, or reduce the damage caused by the attorney’s wrongful conduct.” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 443 [2007] (quotations omitted).) But mere “speculation of a loss resulting from an attorney’s alleged omissions … is insufficient to sustain a claim for legal malpractice.” (Gallet, _Dreyer & Berkey, LLP, 141 AD3d at 405-06 (quotations omitted).)”

“Here, Fischbarg argues that the purchase agreement that he drafted obligated Dorsia to assign the lease for the business premises to Jonns and to transfer the Charles Restaurant’s liquor license to Jonns. (Docs. 6 at 8, 23 at 2.) He argues that, because it was Dorsia’s responsibility to fulfill those obligations, Jonns’ complaint fails to state a legal malpractice cause of action against him. (Id. at 8-10.) Viewing the pleadings in a light favorable to plaintiff and affording him the benefit of every inference, which this Court must do on a motion to dismiss (see Leon, 84 NY2d at 87-88), this Court finds that the amended complaint sets forth sufficient factual allegations that Fischbarg did not use the reasonable degree of care, skill, and diligence commonly exercised by one in the legal community. Specifically, Jonns alleges in his amended complaint that Fischbarg failed to properly act as his attorney by, inter alia, allowing Jonns to sign the purchase agreement in his personal capacity, representing the investors and Dorsia during the business transactions, and by failing to file the necessary papers and applications for a liquor license with the SLA. (Doc. 21 at 9.) The amended complaint therefore alleges the first element of a professional malpractice claim. ”

“Because the underlying Dorsia action is still pending, Jonns cannot conclusively establish that he would have prevailed in that action but for Fischbarg’s negligence. However, Jonns claims in the amended complaint that he has suffered damages as a result of Fischbarg’s failure to draft the purchase agreement as being between Dorsia and an LLC because this caused Jonns to have to defend himself in the Dorsia action. (See Rudo([, 8 NY3d at 443 (litigation expenses to mitigate an
attorney’s negligence satisfy the element of actual damages in legal malpractice actions).)
Contrary to Fischbarg’s assertion, Jonns’ litigation costs in the Dorsia action are not speculative.
(Doc. 29 at 8-9.) Proximate causation is sufficiently alleged since Jonns would not have incurred
those litigation costs if he did not sign the purchase agreement in his personal capacity, i.e., if
Fischbarg had drafted the purchase agreement as being between Dorsia and an LLC, such as
Crazy Asylum. Therefore, this Court finds that Jonns’ amended complaint adequately alleges the
elements of proximate causation and actual damages. ”

 

It only comes up once in a while, but Jonns v Fischbarg  2018 NY Slip Op 32353(U)  September 18, 2018  Supreme Court, New York County  Docket Number: 150729/2017 Judge: Kathryn E. Freed applies an alternative “commencement” of the statute of limitations found in McCoy v. Feinman, 99 NY2d 295,301(2002).  In McCoy the Court of Appeals wrote:

“An action to recover damages arising from an attorney’s malpractice must be commenced within three years from accrual (see CPLR 214 [6] ).   A legal malpractice claim accrues “when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court” (Ackerman v. Price Waterhouse, 84 N.Y.2d 535, 541, 620 N.Y.S.2d 318, 644 N.E.2d 1009 [1994] ).   In most cases, this accrual time is measured from the day an actionable injury occurs, “even if the aggrieved party is then ignorant of the wrong or injury” (id.).  “What is important is when the malpractice was committed, not when the client discovered it” (Shumsky, 96 N.Y.2d at 166, 726 N.Y.S.2d 365, 750 N.E.2d 67;  Glamm v. Allen, 57 N.Y.2d 87, 95, 453 N.Y.S.2d 674, 439 N.E.2d 390 [1982] ).2  Though we have recognized tolls on this three-year limitations period under the continuous representation doctrine (see Shumsky at 167-168, 726 N.Y.S.2d 365, 750 N.E.2d 67), we have recognized no exception to measuring the accrual date from the date of injury caused by an attorney’s malpractice.   Thus, the key issue on this appeal is when plaintiff’s actionable injury occurred.”

Here, in Jonns, Supreme Court found: “Here, Fischbarg asserts that the three-year limitations period for legal malpractice (see CPLR 214[6]) expired because, although he drafted the purchase agreement in August of 2010 (Docs. 6 at 5, 23 at 2), Jonns commenced the instant action in March of 2017 (Doc. 8 at 11 ), more than three years after the purchase agreement was drafted and eventually signed by Dorsia and Jonns. However, the limitations period did not begin to run in August of 2010. As the Court of Appeals has held, the “accrual time is measured from the day an actionable injury occurs … . “(McCoy, 99 NY2d at 301.) Although Fischbarg may have improperly drafted the purchase agreement in August of2010, his negligence did not become actionable until Jonns suffered actual damages. In this instance, Jonns allegedly suffered actual damages when he was forced to defend himself in the Dorsia action, which was commenced in June of 2016,8 as a result ofFischbarg’s failure to advise him not to sign the purchase agreement in his own personal
capacity. Thus, Jonns’ legal malpractice claim is timely.

Surely the longest running Judiciary Law§ 487 case known to man, Melcher v Greenberg Traurig LLP  2018 NY Slip Op 06310  Decided on September 27, 2018  Appellate Division, First Department has been modified and sent back to Supreme Court for trial.  Previously it had been severely clipped and stripped of most of the damage claims by Supreme Court.

“In the present action, Melcher seeks to recover treble damages against Corwin on the theory that Corwin, by propounding the allegedly fabricated 1998 writing on behalf of Fradd and AMFM in the Apollo action, engaged in “deceit or collusion, or consent[ed] to . . . deceit or collusion, with intent or deceive the court or any party” (Judiciary Law § 487[1]). Before us is Melcher’s appeal from, inter alia, Supreme Court’s order granting Corwin’s motion in limine to the extent of excluding the testimony of two of Melcher’s expert witnesses, Jonathan Lupkin and James Lynch. We note that, contrary to Corwin’s contention, the order determining the motion in limine is appealable because it involves the merits of the controversy and affects a substantial right (see Credit Suisse First Boston v Utrecht-America Fin. Co., 84 AD3d 579, 580 [1st Dept 2011]).

Initially, we find that the court’s preclusion of Lynch’s testimony should be affirmed. Melcher proposes to call Lynch to testify to the calculation of the difference in value between the judgment he obtained against the insolvent AMFM and the lesser amount he received in his subsequent settlement with Fradd. It is, however, entirely a matter of speculation whether the Apollo action would have been resolved while AMFM was still solvent had the 1998 writing not been propounded. Accordingly, that theory of damages, in support of which Melcher proposes to call Lynch to testify, does not afford Melcher a proper basis for recovery (see Feldman v Jasne, 294 AD2d 307 [1st Dept 2002]). Since Lynch’s testimony is not offered for any other purpose, it was properly precluded.

Melcher’s other expert witness, Lupkin, prepared a report calculating the attorneys’ fees and other costs Melcher incurred in litigating the Apollo action (excluding certain costs concededly not related to the 1998 writing) beginning from 19 different points in time during the litigation [FN2]. According to Lupkin, the factfinder in this case, based on whichever of these 19 points in time it determines to have been the point at which Corwin learned that the 1998 writing was fabricated, should award Melcher the corresponding damages figure as the amount of the excess legal costs he incurred by reason of Corwin’s alleged deceit. Although, for the reasons discussed below, the damages calculation in Lupkin’s report cannot be endorsed (even assuming that Melcher proves that Corwin violated Judiciary Law § 487), we conclude, substituting our [*3]discretion for that of Supreme Court, that Melcher should not be precluded from calling Lupkin to testify at trial.”

“In view of the foregoing, the potential damages figures proposed in Lupkin’s report — each of which assumes that Melcher may recover all of his costs in litigating the Apollo action (excluding only the costs he would have incurred in calculating damages even if a default judgment had been entered in his favor) from the time Corwin learned that the 1998 writing was fabricated, through the end of the case — do not constitute proper bases for recovery. Nonetheless, we are cognizant of the “evident intent [of Judiciary Law § 487] to enforce an attorney’s special obligation to protect the integrity of the courts and foster their truth-seeking function” (Amalfitano, 12 NY3d at 14; see also Specialized Indus. Servs. Corp. v Carter, 99 AD3d 692, 693 [2d Dept 2012] [noting that the statutory remedy is “designed . . . to deter” attorneys from “betraying” this obligation]). Accordingly, we exercise our discretion to modify Supreme Court’s order to permit Melcher to call Lupkin to testify as an expert witness on damages at trial, with the proviso that his testimony be limited to the assessment of the excess legal costs that Melcher was required to incur, during the period beginning February 17, 2004, [*4]and ending May 11, 2009, as the proximate result of any violation of Judiciary Law § 487 by Corwin that the factfinder may find to have occurred, as discussed above.”

 

 

Plaintiffs often allege “professional negligence” in claims against brokers, insurance agents, financial planners, architects and others.  The question of who can be sued for “professional negligence” is not decided merely by an allegation.  Judd v Madison Advisory Servs., Inc.
2018 NY Slip Op 32298(U)  September 6, 2018  Supreme Court, New York County  Docket Number: 152895/2017  Judge: Frank P. Nervo explains:

“The third cause of action for professional negligence is dismissed. Plaintiffs completely fail to address this claim. A claim for professional negligence requires the plaintiff to allege that the defendant departed from the accepted standards of practice in the profession, and that departure proximately caused injury to the plaintiff (see D.D. Hamilton Textiles v Estate of Mate; 269 AD2d 214, 215 [ 1st Dept 2000]). Defendants are not professionals as required for a claim for professional malpractice (see Chase Scientific Research v NIA Group, 96 NY2d 20, 28 [2001]; Starr v Fuoco Group LLP, 137 AD3d 634, 634 [1st Dept 2016]; Leather v United States Trust Co. of N. Y, 279 AD2d 311, 312 [ 1st Dept 2001]). According to the Court of Appeals in Chase Scientific Research v NIA Group, a professional is one who has extensive formal training, is licensed and regulated, must follow a code of conduct imposing standards greater than those in the marketplace, and there are disciplinary actions for violations (96 NY2d at 28). “While [insurance] agents and brokers must be licensed, they are not required to engage in extensive specialized education arid training” (id. at 30). Similarly, financial planners are not professionals under the malpractice law (Starr v Fuoco Group LLP, 137 AD3d at 634 [a financial advisor is not a “professional”]; Leather v US: Trust Co. of N. Y., 279 AD2d at 312 [same]). “

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.”