Complaint for legal malpractice brought by a former client

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The First Department, in Polanco v. Greenstein & Milbauer, LLP, held that the complaint for legal malpractice brought by a former client against his lawyers in a personal injury action stated a valid cause of action and should not have been dismissed upon the law firm’s motion for summary judgment. Specifically, the appellate court found that the client’s allegation that the firm urged her to settle her personal injury case could support her claim of legal malpractice.

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Polanco v Greenstein & Milbauer, LLP

2017 NY Slip Op 03707 [150 AD3d 449]
May 9, 2017
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 28, 2017

Aracelis Polanco, Respondent,
v
Greenstein & Milbauer, LLP, Appellant.

Winget, Spadafora & Schwartzberg, LLP, New York (Kenneth A. McLellan of counsel), for appellant.

Robert G. Spevack, New York, for respondent.

Order, Supreme Court, Bronx County (Kenneth L. Thompson Jr., J.), entered April 5, 2016, which denied defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

On a prior appeal, this Court reversed the grant of defendant’s motion to dismiss, finding that the allegation “that defendant was negligent in urging her to settle the underlying personal injury action and in advising her that an MRI was not necessary and that its results would not lead to a more favorable outcome of her case,” supported a cause of action for legal malpractice (96 AD3d 438, 439 [1st Dept 2012]).

Defendant law firm failed to meet its prima facie burden on the instant motion for summary judgment (see Suppiah v Kalish, 76 AD3d 829, 832 [1st Dept 2010]). The firm’s legal expert did not address the stated basis for plaintiff’s legal malpractice claim, ignored her testimony as to the nature of pre-settlement discussions with her attorney, and misstated that attorney’s testimony. The firm’s radiologist’s opinion on causation, attributing plaintiff’s injuries to degenerative changes, was equivocal, inter alia, conceding that causation as to a herniation was “uncertain” and that certain changes seen on an MRI, taken over one year after the accident, could have been formed in a matter of “months.”

Even if the firm had met its initial burden on the motion, denial would be warranted based upon the existence of triable issues of fact raised by plaintiff. That plaintiff’s expert may have committed improper acts or malpractice bears on his credibility and not the admissibility of his testimony (see Williams v Halpern, 25 AD3d 467, 468 [1st Dept 2006]) and plaintiff’s surgeon’s attribution of her injuries to a different, plausible cause, creates a triable issue of fact on causation (see Linton v Nawaz, 62 AD3d 434, 439-440 [2009], affd 14 NY3d 821 [2010]; Norfleet v Deme Enter., Inc., 58 AD3d 499, 500 [1st Dept 2009]).

We have considered appellant’s remaining arguments and find them unavailing. Concur—Acosta, J.P., Renwick, Mazzarelli, Gische and Gesmer, JJ. [Prior Case History: 2016 NY Slip Op 30695(U).]

R. A. Klass
Your Court Street Lawyer

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Valid cause of action

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The First Department, in Caso v. Miranda Sambursky Sloane Sklarin Ver Veniotis LLP, held that the complaint for legal malpractice brought by a former client against his lawyers in a personal injury action stated a valid cause of action and should not have been dismissed upon the law firm’s motion to dismiss the action.

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Caso v Miranda Sambursky Sloane Sklarin Ver Veniotis LLP

2017 NY Slip Op 03607 [150 AD3d 422]

May 4, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, June 28, 2017

[*1] Thomas Caso, Appellant,
v
Miranda Sambursky Sloane Sklarin Ver Veniotis LLP et al., Respondents.

Alexander J. Wulwick, New York, for appellant.

Furman Kornfield & Brennan LLP, New York (A. Michael Furman of counsel), for respondents.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered May 26, 2016, which granted defendants’ motion to dismiss solely to the extent of dismissing the complaint for failure to state a cause of action, unanimously reversed, on the law, without costs, and the motion denied in its entirety. Order, same court and Justice, entered on or about October 31, 2016, which granted plaintiff’s motion insofar as it sought leave to reargue defendants’ motion to dismiss, denied plaintiff’s motion insofar as it sought leave to renew and to amend the complaint, and, upon reargument of the motion to dismiss, adhered to the original determination, unanimously reversed, on the law and the facts, without costs, leave to amend the complaint granted, and the appeal therefrom otherwise dismissed as academic.

In this legal malpractice action, plaintiff, the victim of a hit-and-run accident, alleges that defendants, who represented him in the underlying personal injury action, were negligent in failing to prepare and present the testimony of the sole eyewitness; that defendants’ negligence caused a verdict against him; and that he sustained actual damages. Specifically, plaintiff alleges that, prior to the eyewitness’s deposition testimony two years after the accident, defendants failed to refresh the eyewitness’s memory by showing him the police record of a phone call he made shortly after the accident, in which he described the hit-and-run vehicle as a green garbage truck with a flat front. The eyewitness then testified to the contrary at his deposition, stating that the garbage truck he remembered fleeing the scene had a round front, not a flat front. Plaintiff alleges that but for defendants’ negligence in handling the key witness in his case, he would have prevailed, as the driver operated a green garbage truck with a flat front, and the driver had already admitted to a route that would have placed him at the scene on the day and time of the accident. These allegations are sufficient to survive a CPLR 3211 (a) (1) and (7) motion to dismiss, as nothing in the record conclusively establishes a defense as a matter of law (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]) and plaintiff has adequately pleaded a claim for legal malpractice (see Global Bus. Inst. v Rivkin Radler LLP, 101 AD3d 651, 651 [1st Dept 2012]; see also Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]).

[*2] Leave to amend is proper, since plaintiff’s proposed amendments are not “patently devoid of merit” and will not prejudice or surprise defendants (MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499, 499 [1st Dept 2010]; see CPLR 3025 [b]). Concur—Sweeny, J.P., Gische, Kahn and Gesmer, JJ.

R. A. Klass
Your Court Street Lawyer

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The Rent Is Too Damn High

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Frightened woman in fashionable, white apartment. copyright: PlusONE/Shutterstock.com

The tenant lived in an apartment building in Brooklyn for several years. She dutifully paid her rent to her landlord. After several years, she discovered that the rental amount she was paying exceeded the legally-allowed amount for her rent-stabilized apartment according to New York State law.

DHCR Rent Overcharge

After the tenant realized that she was paying higher-than-permitted rent, she filed a Rent Overcharge Application with the NYS Division of Housing and Community Renewal (DHCR). The DHCR, a State agency, enforces the regulations as to how much rent a landlord may legally charge a tenant. (Point in fact: A tenant may also commence a court case for rent overcharge or assert the claim as a defense in a Housing Court proceeding brought by the landlord). In this case, the tenant proved to the Rent Administrator that there was a rent overcharge by the landlord which exceeded the legal regulated rent.

Penalty phase

Once the DHCR determined that the tenant was overcharged for rent, an appropriate penalty was to be assessed against the landlord. Sometimes, the penalty is merely the amount above the legal regulated rent plus accrued interest. Other times, as in this case, the penalty for a willful overcharge equals three times the amount of the overcharge (treble damages) for two years prior to filing the complaint. In this case, the landlord was penalized with treble damages as detailed in the Final Order.

The Final Order of the Rent Administrator was timely challenged by the landlord through its filing of a Petition for Administrative Review (PAR) with the DHCR Commissioner (which had to be done within 35 days of the Order to stop the tenant from collecting the penalty). After the landlord’s PAR was decided and the landlord lost again, the landlord timely filed a court proceeding known as an “Article 78” to further challenge the DHCR’s Final Order and Order after the PAR (which had to be done within 60 days after the PAR Order). The state court judge determined in the Article 78 proceeding that the DHCR acted appropriately and sustained the treble damage award.

Enforcement of the DHCR Final Order

Now that the DHCR Order was final, the tenant needed to collect the money from the landlord. She retained Richard A. Klass, Your Court Street Lawyer, to collect the debt.

Under DHCR rules, a tenant may enforce the rent overcharge order either through certain deductions from current rent due to the landlord or through entering a money judgment with the County Clerk’s Office (this option is usually selected when the amount is very large or the tenant has moved from the apartment already). Here, the Judgment was entered against the landlord and enforcement measures were immediately taken to collect the Judgment, including docketing a lien against the landlord’s apartment building and issuing an Execution to the Sheriff to levy upon the landlord/judgment debtor. After the full-court press by Richard A. Klass, the Judgment was collected and the tenant received payment pursuant to the DHCR Rent Overcharge finding.

by Richard A. Klass, Esq.

R. A. Klass
Your Court Street Lawyer

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Appointment to Grievance Committee: Richard Klass

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Richard A. Klass, has been appointed to serve a 4-year term on the Grievance Committee for the Appellate Division Second Department for the Second, Eleventh and Thirteenth Judicial Districts.

Members of the Grievance Committee serve to maintain the honesty, integrity and professional competence of the legal profession and protect the general public by enforcing the Rules of Professional Conduct.

R. A. Klass
Your Court Street Lawyer

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Ninth Incarnation of Trade Brooklyn Largest Ever

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This past April, the Law Firm of Richard A. Klass was pleased to participate in Trade Brooklyn. This year’s show, with the theme “Year of the Entrepreneur,” was focused on the interests of small business owners. Over 150 New York City businesses were present. Jonathan Levin of Cardinal Trade Group helped produce the show which included over 18 seminars on topics such as search engine optimization, marketing and social media.

The Brooklyn Bar Association (“BBA”) hosted a continuing legal education (“CLE”) course entitled “The Importance of Legal Counsel for Small Businesses” presented by lawyers Richard A. Klass, Gregory S. Lisi and Jeffrey R. Miller. BBA’s CLE Director Danielle Levine described the course as being “crafted specifically so that it would appeal to lawyers and give non-lawyers valuable information too.”

Rob Abruzzese, with the Brooklyn Daily Eagle, wrote an article about the Trade Brooklyn show which you can find by general internet search.

copyr. 2015 Richard A. Klass, Esq.
The firm’s website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York. He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.comcreate new email with any questions.
Prior results do not guarantee a similar outcome.

R. A. Klass
Your Court Street Lawyer

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