Litigation

Court affirmed the denial of the law firm’s motion to dismiss

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In Berger v Lewis Johs Avallone Aviles, LLP, 232 AD3d 840, 841-42 [2d Dept 2024], the court affirmed the denial of the law firm’s motion to dismiss the client’s malpractice lawsuit, holding:

“To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Georgica Bldrs., Ltd. v. 136 Bishops Lane, LLC, 175 A.D.3d 610, 611, 106 N.Y.S.3d 345 [internal quotation marks omitted]; see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511). Further, “[o]n a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Georgica Bldrs., Ltd. v. 136 Bishops Lane, LLC, 175 A.D.3d at 611, 106 N.Y.S.3d 345; see Leon v. Martinez, 84 N.Y.2d at 87, 614 N.Y.S.2d 972, 638 N.E.2d 511).

Here, accepting the allegations in the complaint as true and according the plaintiff the benefit of every possible favorable inference (see Leon v. Martinez, 84 N.Y.2d at 87, 614 N.Y.S.2d 972, 638 N.E.2d 511), the complaint sufficiently stated a cause of action to recover damages for legal malpractice. Contrary to Wohlgemuth’s contention, “ ‘a legal malpractice plaintiff need not, in order to assert a viable cause of action, specifically plead that the alleged malpractice fell within the agreed scope of the defendant’s representation’ ” (Shan Yun Lin v. Lau, 210 A.D.3d 817, 818, 178 N.Y.S.3d 538, quoting Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 39, 827 N.Y.S.2d 231). Further, “ ‘a legal malpractice defendant seeking dismissal pursuant to CPLR 3211(a)(1) must tender documentary evidence conclusively establishing that the scope of its representation did not include matters relating to the alleged malpractice’ ” (id., quoting Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d at 39, 827 N.Y.S.2d 231). Here, Wohlgemuth failed to submit documentary evidence sufficient to make that showing or to otherwise submit documentary evidence utterly refuting the plaintiff’s allegations or conclusively establishing a defense as a matter of law (see Zi Kuo Zhang v. Lau, 210 A.D.3d 829, 831, 178 N.Y.S.3d 545; Shan Yun Lin v. Lau, 210 A.D.3d at 818, 178 N.Y.S.3d 538).

Richard A. Klass, Esq.
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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.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

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Not So…Quick on the Trigger – Interest awarded from the “earliest ascertainable date”

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A home improvement contractor sued a homeowner for breach of contract. The plaintiff-contractor alleged that it agreed to perform renovation and construction services for the defendant-homeowner, performed the labor and furnished all materials, and was not paid for the job. A jury trial was held where the jury determined that the defendant breached the contract and owed the plaintiff $40,000. Post-trial motions were made before the trial judge to challenge the jury verdict. The judge sustained the verdict. However, the judge’s order did not contain a directive to submit the judgment by a certain date.

Fixing the date for computing interest

Unfortunately, the trial judge did not fix the date from which interest on the verdict amount should be computed. Four years after the trial, the contractor retained Richard A. Klass, Esq., Your Court Street Lawyer, to request that the newly assigned judge fix the date for computing interest as per CPLR 5001.[See footnote 1] It was argued that interest should be awarded from the “earliest ascertainable date,” which, in this case, should be when the contractor completed the work on the homeowner’s property. See, Matter of Kummer, 93 AD2d 135, 184 [2d Dept 1983] (“predecision interest is to run from the earliest ascertainable date upon which the plaintiff’s cause of action existed.”); Ogletree, Deakins, Nash, Smoak & Stewart P.C. v Albany Steel Inc., 243 AD2d 877, 880 [3d Dept 1997] (“CPLR 5001(b) requires that prejudgment interest be computed from the earliest ascertainable date on which the prevailing party’s cause of action existed “and if that date cannot be ascertained with precision, the computation shall be from the earliest time at which it may be said the cause of action accrued” (Govern & McDowell v. McDowell & Walker, 75 A.D.2d 979, 980, 428 N.Y.S.2d 367).”).

There is a longstanding legal principle that, “[a] plaintiff in a breach of contract case is entitled to interest from the earliest ascertainable date the cause of action accrued (see, CPLR 5001[b]; M.C.D. Carbone v. Town of Bedford, 98 A.D.2d 714, 469 N.Y.S.2d 117). The award of interest is founded on the theory that there has been a deprivation of use of money or its equivalent and that the sole function of interest is to make whole the party aggrieved.” Kaiser v Fishman, 187 AD2d 623, 627 [2d Dept 1992]; see also, Kaiser v Fishman, 187 AD2d 623, 628 [2d Dept 1992] (“interest is simply the cost of having the use of another person’s money for a specified period [and] [i]t is intended to indemnify successful plaintiffs for the nonpayment of what is due them”); Sokolik v Pateman, 114 AD3d 839, 841 [2d Dept 2014] (“the Supreme Court erred in failing to award the plaintiff statutory prejudgment interest pursuant to CPLR 5001(a), which requires that such interest be recovered upon a sum awarded because of a breach of contract.”).

60-day rule under Uniform Rule 202.48 wasn’t “triggered”

There is a rule that requires a party to submit a proposed order or judgment to the judge for signature within 60 days after a decision has been made on a motion.[See footnote 2] In this case, the trial judge determined the post-trial motions regarding the jury verdict four years earlier.

The defendant argued that no prejudgment interest should be awarded since there was an unexplained 4-year delay in seeking to enter judgment. The plaintiff responded that, despite the passage of four years since the jury verdict, the application for entry of judgment was not untimely. See, Donovan v DiPietro, 195 AD2d 589, 590-91 [2d Dept 1993] (“Consequently, a jury verdict, or even a dispositive ruling from the bench during or after trial where the court does not direct submission of a paper for its signature, will not trigger the application of the rule [22 NYCRR 202.48] (see, Winckel v Atlantic Rentals & Sales, 195 AD2d 599). In cases such as this, entry of judgment on a verdict may be accomplished by way of a clerk’s judgment, as provided by statute (see, CPLR 5016).” See also, Funk v Barry, 89 NY2d 364, 366 [1996] (“Plaintiffs rely on precedent emanating from the First and Second Departments which holds generally that the 60–day time limit is not triggered unless the Judge’s decision directs that the judgment be submitted for the court’s signature.”)[See footnote 3]

Relying on the holding in Funk v Barry, the judge rejected the defendant’s argument regarding undue delay, finding it to be without merit. The judge noted that the defendant could have sought entry of judgment and not waited for the plaintiff to act.

Concerning prejudgment interest, the judge could not ascertain the date of breach of contract since it was unclear what date was proven at trial. However, the judge decided to fix prejudgment interest as of the date of commencement of the action since that was a determinable date for purposes of the statute.

Footnotes

[1]

Civil Practice Law and Rules (“CPLR”) 5001 provides:

§ 5001. Interest to verdict, report or decision.

(a) Actions in which recoverable. Interest shall be recovered upon a sum awarded because of a breach of performance of a contract, or because of an act or omission depriving or otherwise interfering with title to, or possession or enjoyment of, property, except that in an action of an equitable nature, interest and the rate and date from which it shall be computed shall be in the court’s discretion.

(b) Date from which computed. Interest shall be computed from the earliest ascertainable date the cause of action existed, except that interest upon damages incurred thereafter shall be computed from the date incurred. Where such damages were incurred at various times, interest shall be computed upon each item from the date it was incurred or upon all of the damages from a single reasonable intermediate date.

(c) Specifying date; computing interest. The date from which interest is to be computed shall be specified in the verdict, report or decision. If a jury is discharged without specifying the date, the court upon motion shall fix the date, except that where the date is certain and not in dispute, the date may be fixed by the clerk of the court upon affidavit. The amount of interest shall be computed by the clerk of the court, to the date the verdict was rendered or the report or decision was made, and included in the total sum awarded.

[2]

Section 202.48 Submission of orders, judgments and decrees for signature.

(a) Proposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted.

(b) Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown.

[3]

In Funk v Barry, 89 NY2d 364, 368 [1996], the NYS Court of Appeals held:

That section 202.48 is silent with respect to decisions that do not contain a submit or settle directive is not surprising, given that the rule serves primarily to address delays in judicial dispositions occasioned by a party’s failure to comply with a court’s directive to draw and submit a proposed order or judgment (see, Donovan v DiPietro, 195 AD2d 589, 590, supra). Thus, the 60-day rule logically applies only where further court involvement in the drafting process is contemplated before entry. Additionally, by its language, the 60-day time limitation does not purport to govern the flow of the entry process, which is a ministerial recording function that is separate and distinct from the procedure of obtaining the court’s signature on a proposed judgment (see, Helfant v Sobkowski, 174 AD2d 340, 341, supra; see also, Siegel, NY Prac, op. cit., 1996 Pocket Part, § 250, at 49). Significantly, the Legislature has chosen not to place a time restriction on the completion of entry (see, CPLR 5016).*

* As a practical matter, there is little incentive to enact a specific time period within which a party must complete the entry process. First, “[f]ailure by the prevailing party to expeditiously submit a judgment for entry carries its own sanctions, including the inability to execute on the judgment (CPLR 5230) and the indefinite extension of the losing party’s time in which to take an appeal (CPLR 5513 [a])” (Helfant v Sobkowski, 174 AD2d 340, 341, supra; see also, Siegel, NY Prac § 250, at 377-378; § 418, at 637-638 [2d ed]). Additionally, a losing party who feels aggrieved by the prevailing party’s failure to seek entry may have the judgment entered and need not wait for the prevailing party to act (see, Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR 5016, at 642). Finally, because the entry function generally involves action by the clerk with no further judicial oversight, there is little concern that delayed entry will tie up judicial resources.

Richard A. Klass, Esq.
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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.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

© 2025 Richard A. Klass

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Dismissed legal malpractice action based on jurisdictional grounds

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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]).

Richard A. Klass, Esq.
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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.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

© 2024 Richard A. Klass

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

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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]).

Richard A. Klass, Esq.
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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.comcreate new email 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

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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.

Richard A. Klass, Esq.
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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.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

© 2024 Richard A. Klass

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