If attorney regularly invoices client and client doesn’t object, then court assumes “ account stated. ”

Posted on November 16, 2017 by Richard Klass

When an attorney has billed a client for legal services rendered, the attorney will presumably send the client bill at regular intervals. If the attorney does regularly invoice the client and the client doesn’t object, then the court can assume there is an “account stated.” This is what occurred in Glassman v Weinberg, 154 AD3d 407 [1st Dept 2017], where the court held:

Plaintiff made a prima facie showing of his entitlement to summary judgment on his account stated claim by providing documentary evidence of the invoices, and an affidavit stating that he sent the invoices on a monthly basis to defendant, and that defendant received the invoices and failed to object to the invoices until this litigation (see L.E.K. Consulting LLC v. Menlo Capital Group, LLC, 148 A.D.3d 527, 528, 52 N.Y.S.3d 1 [1st Dept.2017]; Morrison Cohen Singer & Weinstein, LLP v. Waters, 13 A.D.3d 51, 52, 786 N.Y.S.2d 155 [1st Dept.2004] ).

R. A. Klass
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Client claims settlement was not in his interest.

Posted on November 6, 2017 by Richard Klass

Sometimes, a client will bring a legal malpractice claim against his attorney after the underlying case has been settled. The client may claim that the settlement was not in his interest.

A legal malpractice cause of action “ ‘is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel’ ” (Tortura v. Sullivan Papain Block McGrath & Cannavo, P.C., 21 A.D.3d 1082, 1083, 803 N.Y.S.2d 571, quoting Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 430, 554 N.Y.S.2d 487). Nonetheless, a plaintiff’s conclusory allegations that merely reflect a subsequent dissatisfaction with the settlement, or that the plaintiff would be in a better position but for the settlement, without more, do not make out a legal malpractice cause of action (see Benishai v. Epstein, 116 A.D.3d at 727, 983 N.Y.S.2d 618 ; Boone v. Bender, 74 A.D.3d 1111, 1113, 904 N.Y.S.2d 467; Holschauer v. Fisher, 5 A.D.3d 553, 554, 772 N.Y.S.2d 836).

Maroulis v Friedman, 153 AD3d 1250 [2d Dept 2017]

R. A. Klass
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For dismissal of action, attorney must definitively lay out the defense to every element of the cause of action.

Posted on October 24, 2017 by Richard Klass

When an attorney being sued for legal malpractice seeks the dismissal of the action, the attorney must ensure that the motion papers definitively lay out the defense to every element of the client’s cause of action. In Burbige v Siben & Ferber, 152 AD3d 641 [2d Dept 2017], the court denied the motion brought by the law firm, holding:…

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Here, contrary to the Supreme Court’s determination, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint. The defendants’ submissions in support of their motion for summary judgment did not establish, prima facie, that the plaintiff will be unable to prove at least one element of his legal malpractice claim (see Kempf v. Magida, 116 A.D.3d 736, 736, 982 N.Y.S.2d 916; Barnave v. Davis, 108 A.D.3d 582, 969 N.Y.S.2d 139; Alizio v. Feldman, 82 A.D.3d 804, 918 N.Y.S.2d 218). Furthermore, the defendants failed to establish, prima facie, that the plaintiff did not sustain “actual and ascertainable damages” as a result of the defendants’ alleged neglect of the underlying action (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; see Suydam v. O’Neill, 276 A.D.2d at 550, 714 N.Y.S.2d 686).

R. A. Klass
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Court can sometimes hold attorney who brings “frivolous” causes of action liable for sanctions

Posted on October 10, 2017 by Richard Klass

Sometimes, a court can hold an attorney who brings or continues causes of action deemed “frivolous” or without merit liable for costs and/or sanctions. In Boye v. Rubin & Bailin, LLP, 152 AD3d 1 [1 Dept. 2017], the First Department held that the attorney for the client-plaintiff in a legal malpractice action ought to be sanctioned for frivolous conduct, mainly due to the attorney’s pursuit of a meritless claim. In remanding the case to the lower court, the appellate court held that,…

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After a careful review of the appellate record and the parties’ briefs, we draw the only conclusion such record permits—the bases for the legal malpractice claim have been without merit in law or fact since their inception. More concerning, however, is that despite it having been apparent from the record that successor counsel was the one who withdrew the conversion and breach of contract claims in the federal action and not defendants, and despite being alerted to this fact by the record of this case and Supreme Court on multiple occasions, counsel persists in repeating a materially false claim to this Court.

There can be no good faith basis for the repetition of this materially false claim on appeal, and we find that counsel’s behavior would satisfy any of the criteria necessary to deem conduct frivolous. In fact, the only fair conclusion is that the prosecution of this appeal and knowing pursuit of a materially false and meritless claim was meant to delay or prolong the litigation or to harass respondents.

“Among the factors we are directed to consider is whether the conduct was continued when it became apparent, or should have been apparent, that the conduct was frivolous, or when such was brought to the attention of the parties or to counsel (22 NYCRR 130-1.1 [c]), circumstances that are replete in this record as noted above” (Levy v Carol Mgt. Corp., 260 AD2d 27, 34 [1st Dept 1999]).

We also consider that sanctions serve to deter future frivolous conduct “not only by the particular parties, but also by the Bar at large” (id. at 34). The goals include preventing the waste of judicial resources, and deterring vexatious litigation and dilatory or malicious litigation tactics.

Here, counsel was ethically obligated to withdraw any baseless and false claims, if not upon his own review of the record, certainly by the time Supreme Court advised him of this fact. Instead, counsel continued to repeat a knowingly false claim in what could only be described as a purposeful attempt to mislead this Court, and pursued claims which were completely without merit in law or fact.

The appropriate remedy for maintaining a frivolous appeal is the award of sanctions in the amount of the reasonable expenses and costs including attorneys’ fees incurred in defending the appeal (see Matter of Levine, 82 AD3d 524, 527 [1st Dept 2011]). Thus, we remand the matter to Supreme Court for a determination of the amount of expenses and costs including attorneys’ fees incurred by defendants in defending this appeal, and for entry of an appropriate judgment as against plaintiff’s attorney.

R. A. Klass
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Issue: whether an attorney “continuously represented” his client.

Posted on September 11, 2017 by Richard Klass

The issue as to whether an attorney “ continuously represented ” his client in such a manner as to extend the statute of limitations to bring an action for legal malpractice created an issue of fact, as determined by the First Department in Cordero v. Koval, Retjig & Dean PLLC.

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Rolando Cordero, Respondent,

Koval Retjig & Dean PLLC et al., Appellants.

Supreme Court, Appellate Division, First Department, New York

113450/11, 3740

June 20, 2017

Rivkin Radler LLP, New York (Jonathan B. Bruno of counsel), for appellants.

Law Office of Steven C. Pepperman, New York (Steven C. Pepperman of counsel), for respondent.

Order, Supreme Court, New York County (Debra A. James, J.), entered March 21, 2016, which denied defendants’ motion for summary judgment dismissing the complaint alleging legal malpractice, unanimously affirmed, without costs.

The claim for malpractice accrued when defendants failed to timely file a notice of claim (see General Municipal Law § 50-e) upon the City of New York and the New York City Department of Transportation after plaintiff was allegedly injured in a fall from his motorcycle because he struck a defectively-placed construction plate in the road (see generally Glamm v Allen, 57 NY2d 87, 93 [1982]). However, the evidence raised triable issues whether the malpractice statute of limitations (CPLR 214 [6]) was tolled under the continuous representation doctrine. Mark Koval, an attorney formerly employed by defendant law firm, joined another law firm at or about the time plaintiff’s personal injury case was transferred to such new law firm. Defendants admit that plaintiff’s case was transferred to the new firm, and Koval does not deny having worked on the case at either the old or new firm (see generally Antoniu v Ahearn, 134 AD2d 151 [1st Dept 1987]; HNH Intl., Ltd. v Pryor Cashman Sherman & Flynn LLP, 63 AD3d 534, 535 [1st Dept 2009]). Although Koval claims he subsequently left the new firm and did not take plaintiff’s case with him, there is no evidence that plaintiff was ever informed of, or had *2 objective notice of, Koval’s departure such as to end the continuous representation circumstance and the tolling of the statute of limitations (see Shumsky v Eisenstein, 96 NY2d 164, 167-169, 170 [2001]). Concur—Sweeny, J.P., Richter, Andrias, Webber and Gesmer, JJ.