Dismissed legal malpractice action based on jurisdictional grounds

In Musial v Donohue, 225 AD3d 1164, 1164-65 [4th Dept 2024], the court dismissed a client’s legal malpractice action based on jurisdictional grounds since the defendants/attorneys were not in New York but in Texas. The court held:

Plaintiffs, who reside in New York, commenced this breach of contract and legal malpractice action against Texas attorney …, and his law firm, … PLLC (collectively, … defendants), as well as New York attorneys …, Esq., …, Esq., and …, Esq., and their law firm, … Law Offices (collectively, … defendants). Plaintiffs allege that defendants failed to provide them with adequate legal representation with respect to claims arising from a motor vehicle accident that occurred in Texas. In appeal No. 1, plaintiffs appeal from an order that granted the … defendants’ motion to dismiss the complaint against them for lack of personal jurisdiction. In appeal No. 2, plaintiffs appeal from an order that denied their motion seeking, inter alia, to strike the note of issue or obtain post-note of issue discovery.

With respect to appeal No. 1, we reject plaintiffs’ contention that the … defendants are subject to long-arm jurisdiction in New York. Under CPLR 302 (a) (1), “ ‘a court may exercise personal jurisdiction over any non-domiciliary … who in person or through an agent … transacts any business within the state’ ” (People v. Frisco Mktg. of NY LLC, 93 A.D.3d 1352, 1353, 941 N.Y.S.2d 823 [4th Dept. 2012]). “Jurisdiction can attach on the basis of one transaction, even if the defendant never enters the state, so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted” (Glazer v. Socata, S.A.S., 170 A.D.3d 1685, 1686, 96 N.Y.S.3d 791 [4th Dept 2019], lv denied 33 N.Y.3d 911, 2019 WL 4200617 [2019], quoting Fischbarg v. Doucet, 9 N.Y.3d 375, 380, 849 N.Y.S.2d 501, 880 N.E.2d 22 [2007] [internal quotation marks omitted]). “Purposeful” activities are “those by which a defendant, through volitional acts, avails itself of the privilege of conducting activities within [New York], thus invoking the benefits and protections of its laws” (id., quoting Fischbarg, 9 N.Y.3d at 380, 849 N.Y.S.2d 501, 880 N.E.2d 22 [internal quotation marks omitted]; see generally Ehrenfeld v. Bin Mahfouz, 9 N.Y.3d 501, 508, 851 N.Y.S.2d 381, 881 N.E.2d 830 [2007]). “As the party seeking to assert personal jurisdiction, the plaintiff bears the burden of proof on [that] issue” (Frisco Mktg. of NY LLC, 93 A.D.3d at 1353, 941 N.Y.S.2d 823 [internal quotation marks omitted]).

Here, plaintiffs failed to show that the … defendants purposefully availed themselves of the privilege of conducting activities in New York so as to subject them to long-arm jurisdiction pursuant to CPLR 302 (a) (1), inasmuch as the … defendants “never entered New York, [were] solicited … to perform services outside of New York, … performed outside of New York such services as were performed, and [are] alleged [only] to have neglected to perform other services outside of New York” (Mayes v. Leipziger, 674 F.2d 178, 185 [2d Cir. 1982]; see Bloomgarden v. Lanza, 143 A.D.3d 850, 852, 40 N.Y.S.3d 142 [2d Dept. 2016]), and the documentary evidence belies the conclusory allegations of plaintiffs’ counsel that the … defendants actively solicited referrals in New York (cf. Fischbarg, 9 N.Y.3d at 377, 849 N.Y.S.2d 501, 880 N.E.2d 22; see generally Eberhardt v. G&J Contr., Inc., 188 A.D.3d 1653, 1654, 132 N.Y.S.3d 383 [4th Dept. 2020]; Peters v. Peters, 101 A.D.3d 403, 403-404, 955 N.Y.S.2d 315 [1st Dept. 2012]). Even accepting as true the allegations set forth in the complaint and in the opposition to the motion to dismiss, and according plaintiffs the benefit of every favorable inference (see Bloomgarden, 143 A.D.3d at 851, 40 N.Y.S.3d 142), we conclude that, although plaintiffs signed the … defendants’ retainer agreement in New York and were in New York while on a telephone conference call with defendant …, who was in Texas at the time, this occurred during the course of the … defendants’ performance of legal services in Texas and because plaintiffs were New York domiciliaries, not because the … defendants were purposefully engaging in any business activities in New York (see id. at 852, 40 N.Y.S.3d 142; cf. State of New York v. Vayu, Inc., 39 N.Y.3d 330, 332-335, 186 N.Y.S.3d 93, 206 N.E.3d 1236 [2023]).

Plaintiffs also failed to make a prima facie showing of long-arm jurisdiction over the … defendants pursuant to CPLR 302 (a) (3), inasmuch as plaintiffs’ alleged injuries did not occur within New York but, rather, in Texas, where the … defendants’ alleged legal malpractice occurred (see Bloomgarden, 143 A.D.3d at 852, 40 N.Y.S.3d 142; see generally Zeidan v. Scott’s Dev. Co., 173 A.D.3d 1639, 1640, 103 N.Y.S.3d 707 [4th Dept. 2019]).


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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.com with any questions.

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© 2024 Richard A. Klass

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The court reminded parties of the importance of submitting affidavits on motions

In Boukari v Schwartzberg Assoc., LLC, 225 AD3d 417, 417-18 [1st Dept 2024], the court reminded parties of the importance of submitting affidavits on motions. The court held:

Plaintiff opposed the motion only with an attorney affirmation. She did not submit an affidavit setting forth her version of the initial conversations with defendants or any other interactions that would support her attorney’s contentions that she was under a reasonable impression that defendants had agreed to represent her on a personal injury claim or that the law firm did not clearly disclaim representation (see Zuckerman v City of New York, 49 NY2d 557 [1980] [an attorney affirmation is insufficient to put before the court facts of which she has no knowledge]; cf. Encalada v McCarthy, Chachanover & Rosado, LLP, 160 AD3d 475 [1st Dept 2018] [the plaintiff’s testimony about his initial conversation with counsel raised issues of fact and credibility for the factfinder to decide]).

In view of the conclusive evidence establishing the absence of legal representation by defendants on any personal injury action, the court incorrectly determined that the legal malpractice claim was timely under the continuous representation doctrine (see Pace v Horowitz, 190 AD3d 619 [1st Dept 2021]; Knobel v Wei Group, LLP, 160 AD3d 409, 410 [1st Dept 2018]) and that it was factually sustainable (see Binn v Muchnick, Golieb & Golieb, P.C., 180 AD3d 598, 599 [1st Dept 2020]; Seaman v Schulte Roth & Zabel LLP, 176 AD3d 538, 539 [1st Dept 2019]).


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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.com with any questions.

Prior results do not guarantee a similar outcome.

© 2024 Richard A. Klass

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An allegation of attorney deceit on the court or a party

In Urias v Daniel P. Buttafuoco & Assoc., PLLC, 2024 NY Slip Op 01497 [Ct App Mar. 19, 2024], the NYS Court of Appeals dealt with Judiciary Law Section 487, holding that:

[Defendant/Attorney] contends that “[Plaintiff/Client] was relegated to bringing a motion to vacate under CPLR 5015. That path may well be available as a general matter,4 but section 487 cannot be read to make CPLR 5015 the exclusive avenue here. Not only does the text of the provision suggest that a plenary action is available in all instances of attorney deceit, but section 487’s long lineage also confirms that conclusion. The cause of action was descended from the first Statute of Westminster adopted in England in 1275, incorporated in New York’s earliest common law, and first codified in this State in a 1787 statute that closely tracks the current provision (see Melcher v. Greenberg Traurig, LLP, 23 N.Y.3d 10, 14–15, 988 N.Y.S.2d 101, 11 N.E.3d 174 [2014]; Amalfitano, 12 N.Y.3d at 12, 874 N.Y.S.2d 868, 903 N.E.2d 265). Its legislative history reflects a consistent view, taken over centuries, that attorney deceit in the course of litigation warrants substantial penalties—both criminal liability and treble damages. By comparison, CPLR 5015 offers a discretionary remedy that includes “restitution in like manner and subject to the same conditions as where a judgment is reversed or modified on appeal” (CPLR 5015[d]). Such relief is markedly different from that authorized by section 487, and we decline to confine a plaintiff alleging attorney deceit to the sole option of proceeding under CPLR 5015.

We appreciate that it might be more efficient to require a plaintiff who either directly or effectively challenges a judgment to return to the court that issued it and seek vacatur under CPLR 5015, and we note that transfer of a plenary action to the court that handled the underlying proceedings may be desirable where consistent with the CPLR’s venue provisions. Nor do we take lightly the interest in preserving the finality of judgments. But the legislature has singled out the specific type of claim here—an allegation of attorney deceit on the court or a party—and determined that recovery of treble damages should be available in a civil action. We conclude that section 487 must be read to allow a plenary action for deceit, even where success on that claim might undermine a separate final judgment.


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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.com with any questions.

Prior results do not guarantee a similar outcome.

© 2024 Richard A. Klass

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In New York, violations of the Rules of Professional Conduct, do not, absent more, provide a basis for a legal malpractice claim

In Sebco Dev., Inc.; 178TH STREET HOUSING DEVELOPMENT FUND COMPANY, INC.; 479 COURTLANDT AVENUE HOUSING DEVELOPMENT FUND CORPORATION; CROTONA PARTNERS L.P.; ERMA CAVA HOUSING DEVELOPMENT FUND COMPANY, INC.; E.C. HOUSING DEVELOPMENT FUND COMPANY, INC.; FILOMENA GARDENS HOUSING DEVELOPMENT FUND COMPANY, INC.; FOX STREET HOUSING DEVELOPMENT FUND CORPORATION; HUNTS POINT HOUSING DEVELOPMENT FUND CORPORATION; PIO/VIP L.P.; ROSINA ASSOCIATES L.P.; SEBCO HOUSING DEVELOPMENT FUND COMPANY, INC.; TIFFANY GARDENS, L.P.; TIMPSON HOUSING DEVELOPMENT FUND CORPORATION; WILLIS AVENUE ASSOCIATES, L.P., Plaintiff(s), v Siegel & Reiner, LLP AND IRWIN SIEGEL, ESQ., Defendant(s)., 2024 NY Slip Op 50292(U), 10 [Sup Ct Mar. 20, 2024], the court granted the motion to dismiss the legal malpractice cause action, holding:

It is well settled that in New York, violations of the Rules of Professional Conduct, do not, absent more, provide a basis for a legal malpractice claim against an attorney or firm (Doscher v Meyer, 177 AD3d 697, 699 [2d Dept 2019] [”In addition, a violation of the Rules of Professional Conduct, in itself, does not give rise to a private cause of action against an attorney or law firm.“]; Cohen v Kachroo, 115 AD3d 512, 513 [1st Dept 2014] [”To the extent that plaintiff seeks to allege malpractice based on a violation of the New York Rules of Professional Conduct, such an alleged violation does not, without more, support a malpractice claim.“]; Kallman v Krupnick, 67 AD3d 1093, 1096 [3d Dept 2009]; Arkin Kaplan LLP v Jones, 42 AD3d 362, 366 [1st Dept 2007]; Weintraub v Phillips, Nizer, Benjamin, Krim, & Ballon, 172 AD2d 254, 254 [1st Dept 1991]). Accordingly, a conflict of interest, even if it amounts to a violation of the Code of Professional Responsibility, without more, will not give rise to claim of legal malpractice (Sumo Container Sta., Inc. v Evans, Orr, Pacelli, Norton & Laffan, P.C., 278 AD2d 169, 170 [1st Dept 2000]; Lavanant v Gen. Acc. Ins. Co. of Am., 212 AD2d 450, 451 [1st Dept 1995]). However, if the conflict of interest amounts to a breach of the duty of care and it is alleged or proven that damages were proximately caused by the breach, then such conflict is tantamount to legal malpractice (Esposito v Noto, 132 AD3d 944, 945 [2d Dept 2015] [”While a conflict of interest amounting to a violation of the Rules of Professional Conduct does not, in and of itself, amount to malpractice, liability can follow where the client can show that he or she suffered actual damage as a result of the conflict“ (internal quotation marks omitted).]; Tabner v Drake, 9 AD3d 606, 610 [3d Dept 2004]).


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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.com with any questions.

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Court modified lower court’s ruling on summary judgment

In McGlynn v Burns & Harris, 223 AD3d 733 [2d Dept 2024], the court modified the lower court’s ruling on summary judgment, holding:

A plaintiff seeking to recover damages for legal malpractice must establish that “(1) the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and (2) the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages” (Aqua–Trol Corp. v. Wilentz, Goldman & Spitzer, P.A., 197 A.D.3d 544, 545, 152 N.Y.S.3d 504; see McCoy v. Feinman, 99 N.Y.2d 295, 301–302, 755 N.Y.S.2d 693, 785 N.E.2d 714; Gardner v. Sacco & Fillas, LLP, 216 A.D.3d 1139, 1140, 189 N.Y.S.3d 725). “A defendant seeking summary judgment dismissing a legal malpractice cause of action has the burden of establishing prima facie that he or she did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages” (Bakcheva v. Law Offs. of Stein & Assoc., 169 A.D.3d 624, 625, 93 N.Y.S.3d 388).

Contrary to the Supreme Court’s determination, the law firm defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them. The law firm defendants’ submissions in support of their motion did not establish, prima facie, the absence of at least one element of the legal malpractice cause of action (see Burbige v. Siben & Ferber, 152 A.D.3d 641, 642, 58 N.Y.S.3d 562). “Under the doctrine of judicial estoppel, also known as estoppel against inconsistent positions, a party may not take a position in a legal proceeding that is contrary to a position he or she took in a prior proceeding, simply because his or her interests have changed” (Bihn v. Connelly, 162 A.D.3d 626, 627, 78 N.Y.S.3d 243; see Archer v. Beach Car Serv., Inc., 180 A.D.3d 857, 861, 120 N.Y.S.3d 98). Here, the plaintiff’s allegation that he was injured due to a defect in the loading dock was not necessarily contrary to the position taken in his workers’ compensation claim that he suffered injuries while moving heavy boxes on the loading dock. There can be more than one proximate cause of a plaintiff’s injuries (see Scurry v. New York City Hous. Auth., 39 N.Y.3d 443, 454, 190 N.Y.S.3d 677, 211 N.E.3d 1130; Turturro v. City of New York, 28 N.Y.3d 469, 483, 45 N.Y.S.3d 874, 68 N.E.3d 693; Moe–Salley v. Highbridge House Ogden, LLC, 214 A.D.3d 722, 722, 185 N.Y.S.3d 230; Reyes v. S. Nicolia & Sons Realty Corp., 212 A.D.3d 851, 852, 183 N.Y.S.3d 471). Accordingly, the court should have denied the law firm defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them.


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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.com with any questions.

Prior results do not guarantee a similar outcome.

© 2024 Richard A. Klass

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