In Fraumeni v Law Firm of Jonathan D’Agostino, P.C., 215 AD3d 803 [2d Dept 2023], the court held that the statute of limitations began to run when the client demanded and received her file from the lawyer’s office, holding:

The statute of limitations for a cause of action alleging legal malpractice, and a cause of action alleging a violation of Judiciary Law § 487 arising out of the same transactions as the legal malpractice cause of action, is three years (see CPLR 214[6]; Farage v. Ehrenberg, 124 A.D.3d 159, 996 N.Y.S.2d 646). “ ‘However, causes of action alleging legal malpractice which would otherwise be barred by the statute of limitations are timely if the doctrine of continuous representation applies’ ” (Keshner v. Hein Waters & Klein, 185 A.D.3d 808, 808, 125 N.Y.S.3d 582, quoting Farage v. Ehrenberg, 124 A.D.3d at 164, 996 N.Y.S.2d 646 [alterations and internal quotation marks omitted]). “For the doctrine to apply, there must be clear indicia of ‘an ongoing, continuous, developing, and dependent relationship between the client and the attorney’ ” (Farage v. Ehrenberg, 124 A.D.3d at 164, 996 N.Y.S.2d 646, quoting Aseel v. Jonathan E. Kroll & Assoc., PLLC, 106 A.D.3d 1037, 1038, 966 N.Y.S.2d 202; see Joseph v. Fensterman, 204 A.D.3d at 770, 167 N.Y.S.3d 106). “The essence of a continuous representation toll is the client’s confidence in the attorney’s ability and good faith, such that the client cannot be expected to question and assess the techniques employed or the manner in which the services are rendered” (Farage v. Ehrenberg, 124 A.D.3d at 167, 996 N.Y.S.2d 646). Therefore, “[o]ne of the predicates for the application of the doctrine is continuing trust and confidence in the relationship between the parties” (id. [internal quotation marks omitted]). “ ‘What constitutes a loss of client confidence is fact specific, varying from case to case, but may be demonstrated by relevant documentary evidence involving the parties, or by the client’s actions’ ” (Tantleff v. Kestenbaum & Mark, 131 A.D.3d 955, 957, 15 N.Y.S.3d 840, quoting Farage v. Ehrenberg, 124 A.D.3d at 168, 996 N.Y.S.2d 646).

Here, the defendants established, prima facie, that the plaintiff’s legal malpractice and Judiciary Law § 487 causes of action were time-barred, as they accrued when the underlying actions were commenced in 2013 and 2015 (see Sclafani v. Kahn, 169 A.D.3d 846, 849, 94 N.Y.S.3d 118; Farage v. Ehrenberg, 124 A.D.3d at 167–168, 996 N.Y.S.2d 646). In opposition to the defendants’ prima facie showing, the plaintiff failed to raise a question of fact as to whether the continuous representation doctrine tolled the applicable statute of limitations. Contrary to the plaintiff’s contention, the record supports the Supreme Court’s determination that the relationship necessary to invoke the continuous representation doctrine ceased to exist on May 4, 2016, when the plaintiff demanded and received her file from the defendants’ office, thereby indicating her lack of trust and confidence in the parties’ relationship and her intention to discharge the defendants as her attorneys (see Aseel v. Jonathan E Kroll & Assoc., PLLC, 106 A.D.3d at 1038, 966 N.Y.S.2d 202). Moreover, numerous documented communications between the parties submitted by the plaintiff in opposition demonstrated that she lost all trust and confidence in the defendants, such that the attorney-client relationship ceased more than three years before the plaintiff commenced this action (see Sclafani v. Kahn, 169 A.D.3d at 849, 94 N.Y.S.3d 118; Farage v. Ehrenberg, 124 A.D.3d at 160–161, 996 N.Y.S.2d 646).

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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In Hagans v Dell, 213 AD3d 812, 813-14 [2d Dept 2023], the court affirmed the order denying summary judgment to the attorney, holding:

Dell contends that he is immunized from individual liability under Partnership Law § 26 (b). “Partnership Law § 26 (b) . . . immunizes from individual liability any partner in a partnership registered as a limited liability partnership who did not commit the underlying wrongful act, except to the extent that Partnership Law § 26 (c) imposes liability on that partner where he or she directly supervised the person who committed the wrongful act” (Salazar v Sacco & Fillas, LLP, 114 AD3d 745, 747 [2014]; see Ederer v Gursky, 9 NY3d 514, 523 [2007]). Here, Dell established his prima facie entitlement to judgment as a matter of law by submitting the transcript of his deposition testimony and his affidavit demonstrating that he was not involved in handling the plaintiff’s personal injury action and did not supervise the attorney who was responsible.

However, in opposition, the plaintiff raised a triable issue of fact regarding the extent of Dell’s involvement in her personal injury action. The plaintiff submitted documents showing that attorneys at the law firm had consulted with Dell about strategies in responding to motions and seeking a default judgment. A stipulation of discontinuance as to certain defendants in the personal injury action was signed by Dell. In addition, the record reflects that Dell met with the plaintiff to discuss her case at an initial intake meeting, filled out a client fact sheet, and signed the retainer agreement. Under the circumstances, there is a triable issue of fact as to whether Dell was involved in handling the plaintiff’s personal injury action and, as such, was involved in the underlying allegedly wrongful act (see Partnership Law § 26 [c]; Swift Funding, LLC v Isacc, 144 AD3d 471, 472 [2016]).

Richard A. Klass, Esq.
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#CourtStreetLawyer #litigation #Partnership #legalmalpractice

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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In RTW Retailwinds, Inc. v Colucci & Umans, 213 AD3d 509, 510 [1st Dept 2023], the court dealt with the issue re strategic decisions taken by the attorney. The court held:

To establish a cause of action for legal malpractice, plaintiff must show that: (1) the attorney was negligent; (2) the attorney’s negligence was a proximate cause of plaintiff’s losses; and (3) plaintiff suffered actual damages (Excelsior Capitol LLC v. K & L Gates LLP, 138 A.D.3d 492, 492, 29 N.Y.S.3d 320 [1st Dept. 2016], lv denied 28 N.Y.3d 906, 2016 WL 6432820 [2016]). Plaintiff must establish that, “but for the attorney’s negligence, plaintiff would have prevailed in the matter in question or would not have sustained any ascertainable damages…. The failure to establish proximate cause mandates the dismissal of a legal malpractice action, regardless of the negligence of the attorney” (Reibman v. Senie, 302 A.D.2d 290, 290–291, 756 N.Y.S.2d 164 [1st Dept. 2003] [internal citations omitted]). Reasonable strategic decisions made by an attorney cannot form the basis of a cause of action for legal malpractice (see Wagner Davis P.C. v. Gargano, 116 A.D.3d 426, 426, 983 N.Y.S.2d 27 [1st Dept. 2014]).

Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #litigation

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.

© 2023 Richard A. Klass

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The nursing home resident needed to be transported by ambulette to her medical appointment.  Being that the resident was wheelchair-bound, she was to be accompanied to the appointment by her nurse’s aide.  The ambulette driver met them inside the nursing facility, wheeled the resident to the ambulette, raised the wheelchair onto the lift and wheeled the resident into the ambulette.  The driver then strapped the seatbelt on the resident; however, it was alleged the driver failed to secure the wheelchair to the ambulette.

As the driver started driving to the medical appointment, the ambulette stopped short.  Since the wheelchair had not been secured to the ambulette, this caused the resident to slide out from her wheelchair.  Unfortunately, the resident’s foot bent underneath her and she fractured her tibia.

Safety measures that should have been taken

The resident died six months after the ambulette incident.  Her daughter retained Richard A. Klass, Esq., Your Court Street Lawyer, to sue the nursing home and ambulette service for personal injuries sustained by her mother which had caused her severe pain.

The president of the ambulette transportation service testified that the driver should have secured the wheelchair by strapping the wheels to the floor of the vehicle so that the wheelchair would not move.  He also testified that a shoulder belt was needed, as a seatbelt couldn’t hold the person well enough as a wheelchair tends to roll.  The ambulette transportation service president stated it was the responsibility of the driver to make sure that the person being transported was properly secured in the ambulette.

Summary judgment motion by the nursing home

Based on the above testimony, the nursing home moved for summary judgment, seeking the dismissal of the lawsuit against the nursing home.  The nursing home claimed that it was not the responsibility of the nurse’s aide accompanying the resident to make sure that the resident was properly secured in the ambulette when being transported to medical appointments.  In support of its motion, the nursing home put forth an affidavit from an engineer designated as an expert witness who stated that it was “clearly the responsibility of the driver to ensure that the patient is securely fastened as it is the driver’s responsibility to ensure the safety of the patient during transportation.” He further opined that, “it is not the responsibility of the attendant to ensure that the patient is securely fashioned [sic].”

Expert witness cannot usurp the role of the judge.

In opposition to the motion, it was urged that the nursing home didn’t really offer any evidence to support its fundamental obligation to its residents – to ensure that its residents are safe.  The daughter cited to the decision in D’Elia v. Menorah Home and Hospital for Aged and Infirm, 51 AD3d 848 [2 Dept. 2008], where the court held that “a medical facility has a general duty to exercise reasonable care and diligence in safeguarding a patient, based in part on the capacity of the patient to provide for his or her own safety.”  It was argued that there were issues of fact as to whether the nursing home failed to implement available precautions to protect the resident from the foreseeable risk of not being properly secured in the ambulette.

As to the expert witness’ affidavit, it was alleged to only contain opinions from the engineer as to what was “clear” to him as to the duties of the parties, without relying on anything more.  Substantial New York case holds for the proposition that an expert cannot offer mere opinions as to legal obligations.  See, Russo v. Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, LLP, 301 AD2d 63, 69 [1 Dept. 2002].[1]

_____

Endnote

[1] “expert witnesses should not * * * offer opinion as to the legal obligations of parties * * *; that is an issue to be determined by the trial court.  Expert opinion as to a legal conclusion is impermissible” (Colon v Rent-A-Center, Inc., 276 AD2d 58, 61).  An expert may not be utilized to offer opinion as to the legal standards which he believes should have governed a party’s conduct.”

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.

© 2023 Richard A. Klass

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