Standard on deciding motions to dismiss

Posted on by

In a decision reminding defendants of the standard on deciding motions to dismiss, the court in Jadidian v Drucker, 2019 NY Slip Op 03033 [2d Dept Apr. 24, 2019] held:

On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must afford the pleading a liberal construction, accept all facts as alleged to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see CPLR 3026; Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511; Santaiti v. Town of Ramapo, 162 A.D.3d 921, 924–925, 80 N.Y.S.3d 288; Berlin v. DeMarzo, 150 A.D.3d 1185, 52 N.Y.S.3d 878). A cause of action to recover damages for legal malpractice requires proof that the defendant “ failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession ” and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages (McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714 [internal quotation marks omitted]; see Dombrowski v. Bulson, 19 N.Y.3d 347, 350, 948 N.Y.S.2d 208, 971 N.E.2d 338; Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385).

Here, accepting the facts alleged in the complaint as true, and according the plaintiffs the benefit of every possible favorable inference, the complaint sufficiently alleges a cause of action to recover damages for legal malpractice. The complaint alleges that the defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession by failing to account for the potential outcome of the nuisance action on the use and occupancy of the premises and to protect the plaintiffs’ interests in relation thereto. The complaint further alleges that the defendant’s negligence proximately caused the plaintiffs to sustain actual and ascertainable damages in lost rent and in settling the action brought by the Hive, and thus, validly states a cause of action to recover damages for legal malpractice (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 443, 835 N.Y.S.2d 534, 867 N.E.2d 385; Bua v. Purcell & Ingrao, P.C., 99 A.D.3d 843, 847, 952 N.Y.S.2d 592; Wolstencroft v. Sassower, 124 A.D.2d 582, 507 N.Y.S.2d 728). Accordingly, we agree with the Supreme Court’s denial of that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint.

Dismissal pursuant to CPLR 3211(a)(1) is warranted only if 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 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; see Kolchins v. Evolution Mkts., Inc., 31 N.Y.3d 100, 106, 73 N.Y.S.3d 519, 96 N.E.3d 784; Leon v. Martinez, 84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511). Here, the documentary evidence submitted by the defendant failed to utterly refute the plaintiff’s factual allegations. Accordingly, we also agree with the Supreme Court’s denial of that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint.

R. A. Klass
Your Court Street Lawyer

Next post
Previous post
[ motions to dismiss ]

Critical to a legal malpractice action that the plaintiff prove the “ case within a case ”

Posted on by

It is critical to a legal malpractice action that the plaintiff prove the “ case within a case ” in order to sue an attorney. In Salans LLP v VBH Properties S.R.L., 2019 NY Slip Op 02611 [1st Dept Apr. 4, 2019], the court held:

plaintiff demonstrated prima facie entitlement to judgment in the legal malpractice counterclaim by showing that defendants could not prove that but for plaintiff’s failure to appear at the TRO hearing the hearing court would have denied the TRO or set a shorter return date (see Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267, 272, 780 N.Y.S.2d 593 [1st Dept. 2004] [holding that to establish a claim for litigation malpractice the client “ must meet the ‘ case within a case ’ requirement, demonstrating that ‘ but for ’ the attorney’s conduct the client would have prevailed in the underlying matter or would not have sustained any ascertainable damages ”] ). Defendants speculate that had plaintiff appeared at the TRO hearing, injunctive relief may have been denied or the hearing court may have adjourned the case to an earlier date. Such speculation is insufficient to sustain a claim for legal malpractice (see Freeman v. Brecher, 155 A.D.3d 453, 453, 64 N.Y.S.3d 13 [1st Dept. 2017]; Brooks v. Lewin, 21 A.D.3d 731, 734–735, 800 N.Y.S.2d 695 [1st Dept. 2005], lv denied 6 N.Y.3d 713, 816 N.Y.S.2d 749, 849 N.E.2d 972 [2006] ).

R. A. Klass
Your Court Street Lawyer

Next post
Previous post

If there has been a demonstration that the attorney-client relationship in a matter ceased…

Posted on by
While the continuous representation doctrine can toll a time-barred cause of action for legal malpractice, if there has been a demonstration that the attorney-client relationship in a matter ceased, the time within which to bring such action will accrue then, as held in Sclafani v Kahn, 169 AD3d 846 [2d Dept 2019]: An action to recover damages for legal malpractice must be commenced within three years of accrual, “ regardless of whether the underlying theory is based in contract or tort ” (CPLR 214[6]; see McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714; Chase Scientific Research v. NIA Group, 96 N.Y.2d 20, 725 N.Y.S.2d 592, 749 N.E.2d 161; Quinn v. McCabe, Collins, McGeough & Fowler, LLP, 138 A.D.3d at 1086, 30 N.Y.S.3d 288; Alizio v. Ruskin Moscou Faltischek, P.C., 126 A.D.3d at 735, 5 N.Y.S.3d 252; Farage v. Ehrenberg, 124 A.D.3d 159, 163, 996 N.Y.S.2d 646; Landow v. Snow Becker Krauss, P.C., 111 A.D.3d at 796, 975 N.Y.S.2d 119). “ A cause of action to recover damages for legal malpractice accrues when the malpractice is committed, not when it is discovered ” (Alizio v. Ruskin Moscou Faltischek, P.C., 126 A.D.3d at 735, 5 N.Y.S.3d 252; see McCoy v. Feinman, 99 N.Y.2d at 301, 755 N.Y.S.2d 693, 785 N.E.2d 714; Quinn v. McCabe, Collins, McGeough & Fowler, LLP, 138 A.D.3d at 1086, 30 N.Y.S.3d 288; Farage v. Ehrenberg, 124 A.D.3d at 164, 996 N.Y.S.2d 646; Landow v. Snow Becker Krauss, P.C., 111 A.D.3d at 796, 975 N.Y.S.2d 119). However, “ [t]he continuous representation doctrine serves to toll the statute of limitations and render timely an otherwise time-barred cause of action for legal malpractice, but ‘ only where there is a mutual understanding of the need for further representation on the specific subject *121 matter underlying the malpractice claim ’ ” (King Tower Realty Corp. v. G & G Funding Corp., 163 A.D.3d 541, 543, 79 N.Y.S.3d 289, quoting McCoy v. Feinman, 99 N.Y.2d at 306, 755 N.Y.S.2d 693, 785 N.E.2d 714; see Alizio v. Ruskin Moscou Faltischek, P.C., 126 A.D.3d at 735, 5 N.Y.S.3d 252). For the doctrine to apply, “ there must be clear indicia of ‘ an ongoing, continuous, developing, and dependent relationship between the client and the attorney ’ ” (Farage v. Ehrenberg, 124 A.D.3d at 164, 996 N.Y.S.2d 646, quoting Aseel v. Jonathan E. Kroll & Assoc., PLLC, 106 A.D.3d 1037, 1038, 966 N.Y.S.2d 202; see Quinn v. McCabe, Collins, McGeough & Fowler, LLP, 138 A.D.3d at 1086, 30 N.Y.S.3d 288). Here, the defendants established that the plaintiffs’ legal malpractice cause of action was time-barred, as it accrued on June 24, 2009, at the conclusion of the closing (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385). In opposition to the defendants’ respective motions, the plaintiffs failed to raise a question of fact as to whether the continuous representation doctrine tolled the applicable statute of limitations. Indeed, the communications between the parties upon which the plaintiffs rely, which occurred after the statute of limitations had run, demonstrated that the attorney-client relationship in this matter had ceased at the conclusion of the closing, and was not continued.

R. A. Klass Your Court Street Lawyer

Next post Previous post

Client cannot prove damages occurred due to attorney’s malpractice

Posted on by

A legal malpractice action can be dismissed where the client cannot prove that damages occurred due to the attorney’s malpractice (what is commonly referred to as “but-for”). In Lisi v Lowenstein Sandler LLP, 2019 NY Slip Op 01665 [1st Dept Mar. 7, 2019], the court held:

In this legal malpractice action, plaintiff alleges that defendants were negligent in failing to advise him that the income realized from the exercise of his stock options would be taxed as ordinary income and that, had they so advised him, he would have sold his shares earlier or eliminated any market risk by shorting the shares in full or otherwise taking measures to eliminate risk. However, this theory of proximate cause is belied by the record and relies on gross speculation (see Gallet, Dreyer & Berkey, LLP v. Basile, 141 A.D.3d 405, 35 N.Y.S.3d 56 [1st Dept. 2016]; Sherwood Group v. Dornbush, Mensch, Mandelstam & Silverman, 191 A.D.2d 292, 294, 594 N.Y.S.2d 766 [1st Dept. 1993] ).


R. A. Klass
Your Court Street Lawyer

Next post
Previous post

Be mindful of New York’s statute of limitations pertaining to legal malpractice actions

Posted on by

Soloway v Kane Kessler, PC, 168 AD3d 407 [1st Dept 2019] serves as a good reminder to be mindful of New York’s statute of limitations pertaining to legal malpractice actions.

“ 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. ”

R. A. Klass
Your Court Street Lawyer

Next post
Previous post