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Court Should Have Instructed Jury on Plaintiff’s Comparative Fault in this Legal Malpractice Action

The Third Department determined Supreme Court should have charged the jury on comparative fault in a legal malpractice action.  The client’s first priority security interest in equipment and vehicles had not been protected. The client alleged the attorney’s failure to file a UCC-1 and DMV liens constituted malpractice. With respect to the requested comparative-fault jury instruction, the Third Department explained:

 We agree with defendants’ contention that Supreme Court erred in refusing to charge the jury regarding plaintiff’s comparative fault.  The culpable conduct of a plaintiff client may be asserted as an affirmative defense in a legal malpractice action in mitigation of damages (see CPLR 1411, 1412…).  Here, the evidence was sufficient to support a finding that plaintiff could reasonably have been expected to understand the underlying obligations and formalities… .  Hattem v Smith, 516183, 3rd Dept 11-21-13

 

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Cause of Action for Legal Malpractice Accrues When Malpractice Is Committed, Not When Client Learns of It

A cause of action for legal malpractice accrues when the malpractice is committed, not when the client learns of it.  In this case the alleged malpractice was advice that selling property would not have adverse tax consequences.  The IRS disagreed and the client and his attorney fought the determination. After the unsuccessful fight, the client sued the attorney for malpractice. The action was deemed time-barred (the continuous representation doctrine did not apply):

“A legal malpractice claim accrues when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court’” … . Here, the defendants met their prima facie burden by establishing that the cause of action alleging legal malpractice accrued on March 5, 2003, the date they allegedly issued the opinion letter advising the plaintiff that the proposed sale would not result in the loss of his tax deferment status … . Although the plaintiff did not discover that his attorneys’ alleged advice was incorrect until years later, “ [w]hat is important is when the malpractice was committed, not when the client discovered it’” … . Therefore, since the defendants demonstrated that the plaintiff did not commence this action until December 29, 2011, more than three years after his claim for legal malpractice accrued, the defendants established, prima facie, that the claim was time-barred.  Landow v Snow Becker Krauss PC, 2013 NY Slip Op 07710, 2nd Dept 11-20-13

 

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In Spite of Settlement of Underlying Action, the Legal Malpractice Case Alleging Failure to Adequately Investigate Can Go Forward

Plaintiff was attacked and injured in the lobby of his building.  He hired an attorney to bring a premises liability action.  The action was ultimately settled, but plaintiff brought a legal malpractice action against the defendant attorney alleging the attorney did not adequately investigate the security of the building.  The First Department determined that plaintiff, who was described as unsophisticated in legal matters, had stated a cause of action because the defendant attorney admitted he had relied entirely on a brief conversation with the plaintiff about the security situation at the building before recommending settlement.  The First Department explained the relevant principles as follows:

For a claim for legal malpractice to be successful, “a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff and that the plaintiff would have succeeded on the merits of the underlying action but for’ the attorney’s negligence” … . A client is not barred from a legal malpractice action where there is a signed “settlement of the underlying action, if it is alleged that the settlement of the action was effectively compelled by the mistakes of counsel” … . * * *

In this specific case, given plaintiff’s lack of sophistication and his limited education, defendant’s statement that he never conducted any investigation, except for speaking to plaintiff for a very limited time, raises a question of fact as to whether defendant adequately informed himself about the facts of the case before he conveyed the settlement offer. Furthermore, defendant says he told plaintiff, when he conveyed the settlement offer, that it was a “difficult liability case.” It is difficult to understand, on the record before us, how he made that assessment without going to the building, or speaking to the superintendent. Angeles v Aronsky, 2013 NY Slip Op 05955, 1st Dept 9-24-13

 

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Failure to Appeal Dismissal of Underlying Medical Malpractice Action Did Not Preclude Related Legal Malpractice Action

The Fourth Department, over a dissent, allowed a legal malpractice action to go forward, finding that the plaintiff’s failure to appeal the dismissal of the underlying federal medical malpractice action did not preclude the related legal malpractice action. In the federal action, the court determined a physician was an independent contractor, not a government employee, and therefore had to be named individually as a defendant. The action against the physician was dismissed as time-barred. The dissent argued “if plaintiff had been successful in his appeal of the underlying federal action, we would not have a subsequent legal malpractice case.”  In holding that the failure to appeal the federal ruling did not preclude the legal malpractice action, the Fourth Department distinguished a prior case, Rupert v Gates and Adams, PC, 83 AD3d 1383, relied upon by the defendants:

We reject defendants’ invitation to extend the ruling in Rupert to a per se rule that a party who voluntarily discontinues an underlying action and forgoes an appeal thereby abandons his or her right to pursue a claim for legal malpractice. …

Although the precise question presented herein appears to be an issue of first impression in New York, we note that several of our sister states have rejected the per se rule advanced by defendants herein… .  … [S]uch a rule would force parties to prosecute potentially meritless appeals to their judicial conclusion in order to preserve their right to commence a malpractice action, thereby increasing the costs of litigation and overburdening the court system ….  The additional time spent to pursue an unlikely appellate remedy could also result in expiration of the statute of limitations on the legal malpractice claim ….  Further, requiring parties to exhaust the appellate process prior to commencing a legal malpractice action would discourage settlements and potentially conflict with an injured party’s duty to mitigate damages… .  Grace v Law, et al, 625, 4th Dept 7-19-13

 

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Legal Malpractice Action Accrues When Committed, Not When Client Learns of It

The Fourth Department explained when a legal malpractice action accrues (when it is committed, whether or not the aggrieved party is aware of it):

“ ‘A cause of action for legal malpractice accrues when the malpractice is committed’ ”….  “In most cases, this accrual time is measured from the day an actionable injury occurs, ‘even if the aggrieved party is then ignorant of the wrong or injury’ ”….“ ‘What is important is when the malpractice was committed, not when the client discovered it’ ” … .  Elstein v Phillips Lytle, LLP, 631, 4th Dept 7-5-13

 

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Legal Malpractice Action Based Upon Course of Action Taken in Immigration Proceedings Reinstated

In a full-fledged opinion by Justice Manzanet-Daniels, the First Department reinstated a cause of action for legal malpractice in an immigration case.  The complaint alleged a law firm followed an unreasonable course of action in pursuing plaintiff’s application for adjustment of immigration status which led to her removal:

Given plaintiff’s allegations that she had no chance of obtaining immigration relief and that defendants failed to thoroughly discuss the possibility, if not certainty, of reinstatement of the order of deportation and removal upon submission of the application, plaintiff has sufficiently alleged that defendants followed an unreasonable course of action in pursuing the application …. Moreover, she has sufficiently alleged proximate cause, because the submission of the application alerted authorities to her status, which led to the issuance of the reinstatement order and ultimately to her removal…. Plaintiff’s unlawful status alone did not trigger her removal, since she had resided in the United States, albeit unlawfully, for more than six years; she was removed only after defendants affirmatively alerted immigration authorities to her presence. The record does not indicate on this motion pursuant to CPLR 3211 that plaintiff would have otherwise come to the attention of the immigration authorities. Without discovery on the issue, it cannot yet be said, as defendants assert, that plaintiff would have been deported regardless of defendants’ malpractice. Indeed, had plaintiff waited four more years she would have been eligible to apply for reinstatement under INA § 212(a)(9)(C)(ii), which provides that an alien in plaintiff’s position can apply for admission if more than ten years have passed from the date of the alien’s last departure from the United States. Delgado v Bretz & Coven, LLP, 2013 NY Slip Op 04720, 1st Dept, 6-20-13

 

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Attorney-Client Communications Not Discoverable in Legal Malpractice Action​

The First Department ruled defendants were not entitled to attorney-client communications as discovery in an action alleging negligent representation in a probate and accounting proceeding:

 The court properly denied the motion to compel because there is no merit to defendants’ argument that the filing of this malpractice action placed the subject matter of the privileged communications “at issue.” The invasion of the privilege is not required to determine the validity of plaintiffs’ malpractice claim, and the application of the privilege does not deprive defendants of information vital to their defense…. Nor was there a partial, selective disclosure of privileged communications such that the privilege was waived ….  Corrieri v Schwartz & Fang, PC, 2013 NY Slip Op 03797, 1st Dept, 5-28-13

 

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Attorney’s Failure to Investigate Client’s Premises Liability Claim Before Encouraging Settlement Raised Issue of Fact About Malpractice

In this legal malpractice action, the trial court ruled plaintiff had raised issues of fact concerning whether his attorney failed to adequately investigate the plaintiff’s premises liability claim before encouraging the plaintiff to settle.  In affirming the trial court, the First Department noted that the settlement agreement did not bar the legal malpractice action:

For a claim for legal malpractice to be successful, “a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff and that the plaintiff would have succeeded on the merits of the underlying action but for’ the attorney’s negligence” …. A client is not barred from a legal malpractice action where there is a signed “settlement of the underlying action, if it is alleged that the settlement of the action was effectively compelled by the mistakes of counsel” ….   *  *  *

In this specific case, given plaintiff’s lack of sophistication and his limited education, defendant’s statement that he never conducted any investigation, except for speaking to plaintiff for a very limited time, raises a question of fact as to whether defendant adequately informed himself about the facts of the case before he conveyed the settlement offer.  Angeles v Aronsky, 2013 NY Slip Op 02454, 8925, 100091/09, 1st Dept, 4-11-13

 

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Malpractice/Negligence Claims Can Not Be Brought By Party Not In Privity with Law Firm

The Second Department dismissed a complaint against a law firm for malpractice because the law firm was not in privity with the plaintiffs with respect to the real estate transactions at issue.  The law firm represented the defendant in the transactions:

The law firm established, prima facie, its entitlement to judgment as a matter of law dismissing the third and fourth causes of action. In this regard, the law firm submitted evidence demonstrating that it was not in privity with the plaintiffs with respect to the subject transactions. “In New York, a third party, without privity, cannot maintain a claim against an attorney in professional negligence, absent fraud, collusion, malicious acts or other special circumstances'” … . Accordingly, the law firm established its entitlement to judgment as a matter of law dismissing the negligence cause of action. Moreover, the law firm submitted evidence demonstrating that it made no material misrepresentations to the plaintiffs …, thus establishing its entitlement to judgment as a matter of law dismissing the fraud cause of action. In opposition, the plaintiffs failed to raise a triable issue of fact … . Therefore, the Supreme Court should have granted that branch of the law firm’s motion which was for summary judgment dismissing the third and fourth causes of action.  Zinnanti v 513 Woodward Ave Realty, LLC, 2013 NY Slip Op 02244, 2011-10407, Index No 3092/10, 2nd Dept 4-3-13

 

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Third-Party Claims Against Other Law Firms Which Advised Plaintiff.

The First Department, in a full-fledged opinion by Justice Saxe, determined a law firm sued for malpractice could assert third party claims against other law firms which advised the plaintiff on the same matter.  There is a substantive discussion of similar third party actions in legal malpractice cases.  Millenium Import, LLC v Reed Smith LLP, et al, Index 603350/07; 591100-07 First Dept. 1-24-13

 

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