Legal Malpractice

Issue of fact concerning the continuous representation doctrine

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In an action brought by a client against his law firm, the appellate court reversed the granting of the law firm’s motion for summary judgment based upon an issue of fact concerning the continuous representation doctrine.

Under the continuous representation doctrine, a person seeking professional assistance is placed in a difficult position if required to sue his or her attorney while the attorney continues to represent them on a particular legal matter (Shumsky v. Eisenstein, 96 N.Y.2d 164, 167–168, 726 N.Y.S.2d 365, 750 N.E.2d 67 [2001] ). Accordingly, the doctrine tolls the running of the statute of limitations on malpractice claims until the ongoing representation is completed (id.). However, the application of this doctrine is limited “to the course of representation concerning a specific legal matter,” and is not applicable to the client’s “continuing general relationship with a lawyer … involving only routine contact for miscellaneous legal representation … unrelated to the matter upon which the allegations of malpractice are predicated” (id. at 168, 726 N.Y.S.2d 365, 750 N.E.2d 67). The record presents an issue of fact as to whether defendant continuously represented plaintiff in connection with a personal injury claim based on the accident, such as to toll the statute of limitations during that time (see Glamm v. Allen, 57 N.Y.2d 87, 94, 453 N.Y.S.2d 674, 439 N.E.2d 390 [1982]; Waggoner v. Caruso, 68 A.D.3d 1, 6–7, 886 N.Y.S.2d 368 [1st Dept. 2009] ). Encalada v McCarthy, Chachanover & Rosado, LLP, 160 AD3d 475 [1st Dept 2018].

R. A. Klass
Your Court Street Lawyer

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Client dissatisfaction with lawyer’s strategy doesn’t mean he can sue his lawyer for legal malpractice.

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…general dissatisfaction with the lawyer’s strategy…

Just because a client is dissatisfied with his lawyer, doesn’t mean that he can sue the lawyer for legal malpractice.

In Genet v Buzin, 159 AD3d 540 [1st Dept 2018], the court held that a general dissatisfaction with the lawyer’s strategy wasn’t enough to sustain a lawsuit against him. The court held: “Plaintiffs’ proposed amendment is “palpably insufficient” (MBIA Ins. Corp. v. Greystone & Co., Inc., 74 A.D.3d 499, 499, 901 N.Y.S.2d 522 [1st Dept. 2010] ). The allegations underlying the legal malpractice claim merely “reflect plaintiff[s’] dissatisfaction with defendants’ strategic choices and tactics; there is no showing that those choices and tactics were unreasonable” (Kassel v. Donohue, 127 A.D.3d 674, 674, 6 N.Y.S.3d 916 [1st Dept. 2015], lv dismissed 26 N.Y.3d 940, 17 N.Y.S.3d 57, 38 N.E.3d 800 [2015]; see also Rosner v. Paley, 65 N.Y.2d 736, 738, 492 N.Y.S.2d 13, 481 N.E.2d 553 [1985] ). The breach of contract claim is duplicative of the legal malpractice claim, since it arises from the same facts and alleges similar damages (see Rivas v. Raymond Schwartzberg & Assoc., PLLC, 52 A.D.3d 401, 861 N.Y.S.2d 313 [1st Dept. 2008] ).”

R. A. Klass
Your Court Street Lawyer

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Important for parties in litigation to appear before court on all conferences and motion hearing dates

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Important for parties in litigation to appear before court on all conferences and motion hearing dates

It is very important for parties in litigation to appear before the court on all conferences and motion hearing dates. In a recent legal malpractice case (Stein v Davidow, Davidow, Siegel & Stern, LLP, 157 AD3d 741, 742–43 [2d Dept 2018] , the court denied the plaintiffs’ motion to vacate their default. The court held that:

In order to vacate a default in appearing at a scheduled court conference, a plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action (see CPLR 5015[a] [1]; Wright v. City of Poughkeepsie, 136 A.D.3d 809, 809, 24 N.Y.S.3d 523; Mazzio v. Jennings, 128 A.D.3d 1032, 1032, 8 N.Y.S.3d 596; Hanscom v. Goldman, 109 A.D.3d 964, 965, 972 N.Y.S.2d 76). A determination of whether an excuse is reasonable lies within the sound discretion of the Supreme Court (see GMAC Mtge., LLC v. Guccione, 127 A.D.3d 1136, 1138, 9 N.Y.S.3d 83; Herrera v. MTA Bus Co., 100 A.D.3d 962, 963, 954 N.Y.S.2d 631).

 Here, the Supreme Court providently exercised its discretion in determining that the plaintiffs did not offer a reasonable excuse for their default. Neither the fact that Stein was proceeding pro se nor his claims that he was unaware of the consequences of failing to appear constitute a reasonable excuse (see U.S. Bank N.A. v. Slavinski, 78 A.D.3d 1167, 1167, 912 N.Y.S.2d 285; Dorrer v. Berry, 37 A.D.3d 519, 520, 830 N.Y.S.2d 277). The plaintiffs’ remaining arguments to support their contention that their default should be excused are improperly raised for the first time on appeal, and have not been considered by this Court *743 see Tulino v. Tulino, 148 A.D.3d 755, 757, 48 N.Y.S.3d 258; Point Holding, LLC v. Crittenden, 119 A.D.3d 918, 920, 990 N.Y.S.2d 575).

As the plaintiffs failed to offer a reasonable excuse for their default, the issue of whether the plaintiffs had a potentially meritorious cause of action need not be addressed (see U.S. Bank, N.A. v. Dorvelus, 140 A.D.3d 850, 852, 32 N.Y.S.3d 631; Vested Bus. Brokers, Ltd. v. Ragone, 131 A.D.3d 1232, 1234, 17 N.Y.S.3d 447; Abdelqader v. Abdelqader, 120 A.D.3d 1275, 1276, 993 N.Y.S.2d 71). Accordingly, the Supreme Court properly denied the plaintiffs’ motion pursuant to CPLR 5015(a)(1) to vacate their default.

R. A. Klass
Your Court Street Lawyer

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Dismissal of a legal malpractice action based upon documentary evidence

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Where a defendant/law firm moves for dismissal of a legal malpractice action based upon documentary evidence, it must establish that the documents are a complete defense to the other action; otherwise, the motion will be denied and the action will be permitted to go forward.

The court stated in, Hershco v Gordon & Gordon, 155 AD3d 1007 [2d Dept 2017], “A motion to dismiss on the basis of CPLR 3211(a)(1) may be 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 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; see 413 Throop, LLC v. Triumph, the Church of the New Age, 153 A.D.3d 1306, 1307, 61 N.Y.S.3d 307). On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must accept the facts alleged in the complaint as true and afford the proponent the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see *39 Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511; East Hampton Union Free School Dist. v. Sandpebble Bldrs., Inc., 66 A.D.3d 122, 125, 884 N.Y.S.2d 94, affd 16 N.Y.3d 775, 919 N.Y.S.2d 496, 944 N.E.2d 1135).”

Definitions: plaintiff, defendant.

R. A. Klass
Your Court Street Lawyer

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Plaintiff must establish elements of proximate cause

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In Verdi v Jacoby & Meyers, LLP, 154 AD3d 901 [2d Dept 2017], the court held:

“ To establish a cause of action to recover damages for legal malpractice, a plaintiff must establish the elements of proximate cause and damages, i.e. “ a plaintiff must show that but for the attorney’s negligence, he or she would have prevailed on the underlying claim ” (Rau v. Borenkoff, 262 A.D.2d 388, 389, 691 N.Y.S.2d 140; see Di Giacomo v. Michael S. Langella, P.C., 119 A.D.3d 636, 638, 990 N.Y.S.2d 221), by proving “ a case within a case ” (McKenna v. Forsyth & Forsyth, 280 A.D.2d 79, 82, 720 N.Y.S.2d 654 [internal quotation marks omitted] ). ”