Court modified lower court’s ruling on summary judgment

Posted on February 26, 2024 by Richard Klass

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.

Richard A. Klass, Esq.
Your Court Street Lawyer

keywords:
#CourtStreetLawyer #legalmalpractice #summaryjudgment #estoppel

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.

Next post
Previous post

Plaintiff having to prove an attorney-client relationship

Posted on May 30, 2023 by Richard Klass

In Mid City Elec. Corp. v Peckar & Abramson, 214 AD3d 646, 648 [2d Dept 2023], the court dealt with the issue as to a plaintiff having to prove an attorney-client relationship, holding:

To recover damages for legal malpractice, a plaintiff must prove, inter alia, the existence of an attorney-client relationship (see Siemsen v Mevorach, 160 AD3d 1004, 1005 [2018]; Volpe v Canfield, 237 AD2d 282, 283 [1997]). “It is well established that, with respect to attorney malpractice, absent fraud, collusion, malicious acts, or other special circumstances, an attorney is not liable to third parties, not in privity, for harm caused by professional negligence” (Rovello v Klein, 304 AD2d 638, 638 [2003]). “The unilateral belief of a plaintiff alone does not confer upon him or her the status of a client” (Lombardi v Lombardi, 127 AD3d 1038, 1042 [2015] [internal quotation marks omitted]).

Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #litigation #attorney-client #legalmalpractice

Prior results do not guarantee a similar outcome.

Next post
Previous post

Statute of limitations began to run when the client demanded and received her file.

Posted on May 22, 2023 by Richard Klass

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.
Your Court Street Lawyer

#CourtStreetLawyer #litigation #statuteoflimitations #legalmalpractice

Prior results do not guarantee a similar outcome.

Next post
Previous post

Partnership Law Section 26 (b) and (c

Posted on April 28, 2023 by Richard Klass

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.
Your Court Street Lawyer

#CourtStreetLawyer #litigation #Partnership #legalmalpractice

Prior results do not guarantee a similar outcome.

Next post
Previous post

Court dealt with the issue re strategic decisions taken by the attorney

Posted on April 4, 2023 by Richard Klass

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

Prior results do not guarantee a similar outcome.

Next post
Previous post