Defendants did not act in their capacities as attorneys when they allegedly made deceitful statements.

Posted on July 12, 2022 by Richard Klass

In Altman v DiPreta, 204 AD3d 965, 968-69 [2d Dept 2022], the court dismissed the cause of action brought under Judiciary Law Section 487, holding:

Under Judiciary Law Section 487(1), an attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” is liable to the injured party for treble damages. “Judiciary Law Section 487 ‘applies to an attorney acting in his or her capacity as an attorney, not to a party who is represented by counsel and who, incidentally, is an attorney’ ” (Pinkesz Mut. Holdings, LLC v. Pinkesz, 198 A.D.3d 693, 698, 156 N.Y.S.3d 216, quoting Oakes v. Muka, 56 A.D.3d 1057, 1058, 868 N.Y.S.2d 796). Here, the parties’ evidentiary submissions demonstrated that the DiPreta defendants did not act in their capacities as attorneys when they allegedly made deceitful statements. Accordingly, the Supreme Court properly granted that branch of the DiPreta defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging violation of Judiciary Law Section 487 insofar as asserted against them by Charles (see Smallwood v. Lupoli, 107 A.D.3d 782, 784, 968 N.Y.S.2d 515; Crown Assoc., Inc. v. Zot, LLC, 83 A.D.3d 765, 768, 921 N.Y.S.2d 268; Oakes v. Muka, 56 A.D.3d at 1058, 868 N.Y.S.2d 796).

Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #legalmalpractice #deceit

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.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

R. A. Klass
Your Court Street Lawyer

Next post
Previous post

An attorney may not be held liable for failing to act outside the scope of a retainer

Posted on May 24, 2022 by Richard Klass

In Natl. Air Cargo, Inc. v Jenner & Block, LLP, 203 AD3d 1655 [4th Dept 2022], the court dismissed the legal malpractice action based on the following basis:

A motion to dismiss a complaint based on documentary evidence “may be appropriately granted only where the documentary evidence utterly refutes [the] 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 [2002]). In support of its motion, HSE submitted the engagement letter between HSE and NAC. “An attorney may not be held liable for failing to act outside the scope of a retainer” (Attallah v. Milbank, Tweed, Hadley & McCloy, LLP, 168 A.D.3d 1026, 1028, 93 N.Y.S.3d 353 [2d Dept. 2019]; see AmBase Corp. v. Davis Polk & Wardwell, 8 N.Y.3d 428, 435, 834 N.Y.S.2d 705, 866 N.E.2d 1033 [2007]). Here, HSE met its burden of establishing by documentary evidence that the scope of its legal representation did not include a review of the insurance policies for possible coverage of the judgment in the underlying action. The engagement letter stated that HSE’s engagement did “not include responsibility either for review of [NAC’s] insurance policies to determine the possibility of coverage for any … claims that have [been] or may be asserted against [NAC] or for notification of [NAC’s] insurance carriers concerning the matter.” Because review of NAC’s liability insurance policies to determine their potential applicability to the judgment in the underlying action fell outside the scope of HSE’s engagement, the court properly granted HSE’s motion with respect to the professional negligence/legal malpractice cause of action against HSE insofar as asserted by NAC (see Turner v. Irving Finkelstein & Meirowitz, LLP, 61 A.D.3d 849, 850, 879 N.Y.S.2d 145 [2d Dept. 2009]).

Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #legalmalpractice #retainer

Prior results do not guarantee a similar outcome.

R. A. Klass
Your Court Street Lawyer

Next post
Previous post

Court reiterated the rule regarding the continuous representation doctrine.

Posted on May 18, 2022 by Richard Klass

In Tulino v Hiller, P.C., 202 AD3d 1132, 1135 [2d Dept 2022], the court reiterated the rule regarding the continuous representation doctrine, holding:

The statute of limitations for a cause of action to recover damages for legal malpractice is three years (see CPLR 214[6]; DeStaso v. Condon Resnick, LLP, 90 A.D.3d 809, 812, 936 N.Y.S.2d 51), which accrues at the time the malpractice is committed (see Shumsky v. Eisenstein, 96 N.Y.2d 164, 166, 726 N.Y.S.2d 365, 750 N.E.2d 67; Stein Indus., Inc. v. Certilman Balin Adler & Hyman, LLP, 149 A.D.3d 788, 789, 51 N.Y.S.3d 183). “ ‘However, pursuant to the doctrine of continuous representation, the time within which to sue on the claim is tolled until the attorney’s continuing representation of the client with regard to the particular matter terminates’ ” (Stein Indus., Inc. v. Certilman Balin Adler & Hyman, LLP, 149 A.D.3d at 789, 51 N.Y.S.3d 183, quoting Aqua–Trol Corp. v. Wilentz, Goldman & Spitzer, P.A., 144 A.D.3d 956, 957, 42 N.Y.S.3d 56). “ ‘For the doctrine to apply, there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney’ ” (Tantleff v. Kestenbaum & Mark, 131 A.D.3d 955, 956, 15 N.Y.S.3d 840, quoting Beroza v. Sallah Law Firm, P.C., 126 A.D.3d 742, 743, 5 N.Y.S.3d 297).

Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #legalmalpractice #continuous-representation

Prior results do not guarantee a similar outcome.

R. A. Klass
Your Court Street Lawyer

Next post
Previous post

The court retains the discretion to accept late opposition papers.

Posted on April 4, 2022 by Richard Klass

In Wilson v Tully Rinckey PLLC, 200 AD3d 1466 [3d Dept 2021], the court first addressed the issue as to the court’s discretion to accept late opposition papers on a motion. The court held:

Defendant contends that Supreme Court erred in permitting plaintiff to submit late opposition papers to the motion. We disagree. The court retains the discretion to accept late opposition papers upon a showing of a valid excuse (see Wilcox v. Newark Val. Cent. Sch. Dist., 107 A.D.3d 1127, 1130, 967 N.Y.S.2d 432 [2013]; see generally CPLR 2004). As the court noted, plaintiff explained that the delay in submitting timely opposition was due to serious medical and health reasons of plaintiff’s counsel. Also taking into account the lack of prejudice to defendant, the fact that defendant was given the opportunity to submit a reply (see Heath v. Normile, 131 A.D.3d 754, 756, 15 N.Y.S.3d 509 [2015]) and the policy of resolving cases on the merits (see Associates First Capital v. Crabill, 51 A.D.3d 1186, 1188, 857 N.Y.S.2d 799 [2008], lv denied 11 N.Y.3d 702, 864 N.Y.S.2d 389, 894 N.E.2d 653 [2008]), the court providently exercised its discretion in accepting plaintiff’s late opposition (see Matter of Burkich, 12 A.D.3d 755, 756, 785 N.Y.S.2d 137 [2004]; Whiteford v. Smith, 168 A.D.2d 885, 885, 564 N.Y.S.2d 806 [1990]).

Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #legalmalpractice #late

Prior results do not guarantee a similar outcome.

R. A. Klass
Your Court Street Lawyer

Next post
Previous post

Account stated cause of action was partially granted in the attorney’s favor.

Posted on March 22, 2022 by Richard Klass

In Michael B. Shulman & Assoc., P.C. v Canzona, 201 AD3d 716, 717-18 [2d Dept 2022], the court determined that an account stated cause of action was partially granted in the attorney’s favor. The court held:

” ‘An account stated is an agreement between parties, based upon their prior transactions, with respect to the correctness of the account items and the specific balance due’ ” (Bank of Am., N.A. v Ball, 188 AD3d 974, 974 [2020], quoting Citibank [South Dakota], N.A. v Abraham, 138 AD3d 1053, 1056 [2016]). “Although an account stated may be based on an express agreement between the parties as to the amount due, an agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account” (Citibank [South Dakota], N.A. v Abraham, 138 AD3d at 1056).

Here, the plaintiff established, prima facie, that, with the exception of the final invoice, dated March 10, 2014, the defendant received the invoices and made partial payments (see Stardom Brands, LLC v S.K.I. Wholesale Beer Corp., 172 AD3d 1266, 1268 [2019]; Lavalle v Coholan Family, LLC, 167 AD3d 1444, 1444 [2018]). As to the March 10, 2014 invoice, however, the record establishes that defendant promptly objected in writing and withheld payment.

In opposition, the defendant asserted that he made certain payments based only on the plaintiff’s threats that work on the case would cease if he did not, corroborated by copies of written messages sent to the defendant by the plaintiff in September 2013. In addition, the defendant testified regarding specific oral objections he made to the invoice dated August 2, 2013, during a phone call with the plaintiff. This evidence was sufficient to raise a triable issue of fact as to whether the defendant’s September 2013 payments constituted an agreement to pay the balance stated in the August 2, 2013 invoice (see Wand, Powers & Goody, LLP v Yuliano, 144 AD3d 1017, 1018 [2016]; Boies, Schiller & Flexner LLP v Modell, 129 AD3d 533, 534 [2015]; Elmo Mfg. Corp. v American Innovations, Inc., 44 AD3d 703, 704 [2007]; 1000 N. of N.Y. Co. v Great Neck Med. Assoc., 7 AD3d 592, 593 [2004]). Accordingly, the Supreme Court properly denied that branch of the plaintiff’s motion which was for summary judgment on the second cause of action insofar as it related to the invoice dated March 10, 2014, on the ground that the plaintiff failed to meet its prima facie burden, and insofar as it related to the invoice dated August 2, 2013, on the ground that the defendant raised a triable issue of fact. However, the court have should awarded the plaintiff summary judgment on the second cause of action insofar as it related to the remaining invoices (see Fross, Zelnick, Lehrman & Zissu, P.C. v Geer, 120 AD3d 1157 [2014]).

Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #legalmalpractice #accountstated

Prior results do not guarantee a similar outcome.

R. A. Klass
Your Court Street Lawyer

Next post
Previous post