Richard A. Klass awarded General Practice Section Award

The New York State Bar Association’s General Practice Section Award is given annually, or at the discretion of the General Practice Section, to honor an individual who is outstanding, innovative, and has made significant contributions to improve the daily practice of law for general practitioners in New York State.

We are pleased to announce that Richard A. Klass, Your Court Street Lawyer, is the recipient of the 2018 General Practice Section Award. It will be presented at the General Practice Section’s Annual Meeting, on January 15, 2019.

This award recognizes a person who has contributed their time and expertise to improve the daily practice of law for general practitioners in New York State, and who has demonstrated a strong dedication to the profession. Consideration is also given for involvement in NYSBA and/or General Practice Section activities.

Past Recipients of the General Practice Section Award:

2017 – Martin Minkowitz
2016 – Robert L. Ostertag
2015 – Willard H. DaSilva
2014 – Leonard E. Sienko, Jr.

R. A. Klass
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Client alleged attorney failed to provide legal advice … immigration consequences

The First Department kept a legal malpractice case alive and partially denied the attorney’s motion to dismiss action, where the client alleged that the attorney failed to provide legal advice. In Sehgal v DiRaimondo, 165 AD3d 435, 436-37 [1st Dept 2018], the court held:

We affirm dismissal of part of the malpractice claim on alternative grounds. Plaintiff’s claim that he pleaded guilty to criminal charges in reliance on defendants’ negligent legal advice concerning the immigration consequences of the plea is barred by his guilty plea and lack of any claim of innocence (Carmel v. Lunney, 70 N.Y.2d 169, 173, 518 N.Y.S.2d 605, 511 N.E.2d 1126 [1987]; Yong Wong Park v. Wolff & Samson, P.C., 56 A.D.3d 351, 867 N.Y.S.2d 424 [1st Dept. 2008], lv denied 12 N.Y.3d 704, 876 N.Y.S.2d 705, 904 N.E.2d 842 [2009] ). However, the policy underlying the rule established in Carmel v. Lunney, supra, does not require dismissal of the entirety of plaintiff’s legal malpractice claim, because the remainder of his claim that defendants failed to advise him of the potential immigration consequences of traveling outside the United States as a result of entering a guilty plea does not dispute the validity of his conviction (see generally Carmel v. Lunney, supra; see also Bass & Ullman v. Chanes, 185 A.D.2d 750, 586 N.Y.S.2d 610 [1st Dept. 1992] ). Further, plaintiff’s allegations that he relied on defendants’ faulty legal advice concerning the immigration consequences of his guilty plea in deciding to travel abroad after he pled guilty, resulting in his being detained and subjected to removal proceedings, state a valid cause of action for legal malpractice. Defendants’ other arguments present disputed factual issues concerning the standard of care and proximate cause that are not properly resolved on a motion to dismiss the complaint (see Urias v. Daniel P. Buttafuoco & Assoc., PLLC, 120 A.D.3d 1339, 1343, 992 N.Y.S.2d 552 [2d Dept. 2014] ).

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Second Department reiterated general rule on a pre-answer motion to dismiss that letters and emails are generally not considered documentary evidence within the meaning of CPLR 3211(a)(1)

The Second Department reiterated the general rule on a pre-answer motion to dismiss that letters and emails are generally not considered documentary evidence within the meaning of CPLR 3211(a)(1). In First Choice Plumbing Corp. v Miller Law Offices, PLLC, 164 AD3d 756 [2d Dept 2018], the court held:

The plaintiffs First Choice Plumbing Corp. (hereinafter First Choice) and Malacy Plumbing Supply, Inc. (hereinafter Malacy), commenced this action to recover damages for legal malpractice against the defendant Miller Law Offices, PLLC, for its alleged negligence concerning two mechanic’s liens. The complaint alleges that the plaintiffs failed to receive full payment for plumbing services and supplies they provided on a construction project, and that the plaintiffs each filed a mechanic’s lien to recover the monies owed. The complaint further alleges that the liens were extended once, but subsequently lapsed and were extinguished by operation of law, due to the defendant’s negligence.

The defendant made a pre-answer motion to dismiss the complaint pursuant to CPLR 3211(a)(1), (5), and (7). The defendant argued, among other things, that no attorney-client relationship existed with respect to the mechanic’s liens. In support of that contention, the defendant submitted copies of the lien extensions, which were filed by nonparty Speedy Lien; a copy of a contract between First Choice and nonparty Construction Lien Consultants, LLC, to investigate, recover, and/or settle the debts owed to First Choice, as reflected in one of the mechanic’s liens; and emails and a letter. In the order appealed from, the Supreme Court found *173 that the defendant submitted documentary evidence which utterly refuted the plaintiffs’ allegation that there was an attorney-client relationship between them and the defendant with respect to the liens and their extensions. Accordingly, the court granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that no attorney-client relationship existed, and denied, in effect, as academic, the remaining branches of the defendant’s motion. The plaintiffs appeal.

A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint on the ground that the action is barred by documentary evidence “may be appropriately granted only where the documentary evidence utterly refutes 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; see Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511). “In order for evidence to qualify as ‘documentary,’ it must be unambiguous, authentic, and undeniable” (Granada Condominium III Assn. v. Palomino, 78 A.D.3d 996, 996–997, 913 N.Y.S.2d 668; see Fontanetta v. John Doe 1, 73 A.D.3d 78, 86, 898 N.Y.S.2d 569). “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” (Fontanetta v. John Doe 1, 73 A.D.3d at 84–85, 898 N.Y.S.2d 569 [internal quotation marks omitted] ). “Conversely, letters, emails, and affidavits fail to meet the requirements for documentary evidence” (25–01 Newkirk Ave., LLC v. Everest Natl. Ins. Co., 127 A.D.3d 850, 851, 7 N.Y.S.3d 325; see Phillips v. Taco Bell Corp., 152 A.D.3d 806, 807, 60 N.Y.S.3d 67; Prott v. Lewin & Baglio, LLP, 150 A.D.3d 908, 909, 55 N.Y.S.3d 98; Gawrych v. Astoria Fed. Sav. & Loan, 148 A.D.3d 681, 682, 48 N.Y.S.3d 450).

Here, the emails and letters submitted in support of the defendant’s motion were not documentary evidence within the meaning of CPLR 3211(a)(1). To the extent that the other evidence submitted was documentary, that evidence did not conclusively establish the absence of an attorney-client relationship between the plaintiffs and the defendant with respect to the liens and their extensions. Thus, the Supreme Court should not have granted that branch of the defendant’s motion which was to dismiss the complaint on this ground.

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What’s Yours Is Mine and What’s Mine Is Yours: Tenancy by the Entirety

Gray-haired couple in embrace illustrating article by Richard Klass Esq. about Tenancy by the Entirety

He owned his own house. When Harald married Florence a year later, he transferred title to the house from himself to “Harald and Florence, his wife.” By virtue of this language in the deed, ownership of the house was now held in a “ tenancy by the entirety ” (see, Estates, Powers & Trusts Law Section 6-2.2). After many years of marriage, Florence passed away, leaving Harald as the surviving spouse of the former tenancy by the entirety and sole owner of the house by operation of law. Subsequently, Harald transferred title to the house to his nieces.

Executor of Estate of Deceased Wife Sues

Florence’s executor brought a lawsuit against Harald and his two nieces to claim Florence’s share in the house as part of her estate. The executor demanded that the house be returned to Florence’s estate for disposition according to her Will. In response, Harald and his nieces filed motions to dismiss the lawsuit based upon documentary evidence.

Dismissal Based upon Documentary Evidence

Richard A. Klass, Esq., Your Court Street Lawyer, filed the motion to dismiss based upon documentary evidence. CPLR 3211(a)(1) provides that dismissal of a lawsuit is appropriate when the document itself resolves all factual issues as a matter of law. In order to be considered documentary evidence under CPLR 3211(a)(1), the evidence “must be unambiguous and of undisputed authenticity.” Rabos v. R&R Bagels & Bakery, Inc., 100 AD3d 849 [2012]; Fontanetta v. John Doe, 73 AD3d 78 [2010]. In considering such a motion, the court is to afford the complaint its most favorable intendment and the plaintiff’s allegations which are contrary to the documentary evidence are to be accepted. However, “a complaint containing factual claims that are flatly contradicted by documentary evidence should be dismissed.” See, Well v. Rambam, 300 AD2d 580 [2002].

Tenancy by the Entirety Deed

Quoting from an 1883 decision from the NYS Court of Appeals, a “ tenancy by the entirety ” is derived from the common law (“when land was conveyed to husband and wife, they did not take as tenants in common or as joint tenants but each became seized of the entirety, and upon the death of either the whole survived to the other.”) On the death of either spouse, the property’s title vested in the other spouse because the survivor is deemed the representative of the single ownership. Indeed, the surviving spouse receives the entire property interest free and clear of any debts, claims, liens or encumbrances against the deceased spouse. See, Cormack v. Burks, 150 AD3d 1198 [2017].

Longstanding New York State law holds that a grant of real property to a husband and wife creates a tenancy by the entirety “unless expressly declared to be a joint tenancy or tenancy in common.” See, Prario v. Novo, 168 Misc.2d 610 [Sup. Ct., Westchester Co. 1996]; In re Faeth’s Will, 200 Misc. 143 [Sur. Ct., Queens Co. 1951]; Estates, Powers & Trusts Law § 6-2.2(b). Courts have recognized that a tenancy by the entirety cannot be altered without the mutual consent of the spouses or divorce. In Sciacca v. Sciacca, 185 Misc.2d 105 [Sup. Ct. Queens Co. 2000], the court held that: “As articulated by the Court of Appeals in Kahn v. Kahn, 43 N.Y.2d 203, a court cannot direct the disposition of property held by married couples as tenants by the entirety until the court first alters the marital status, such as by entering a judgment of divorce or separation. Indeed, the law is long-settled that neither entirety tenant may, without the consent of the other, dispose of any part of the property to defeat the right of survivorship.”

That the executor was pursuing rights on behalf of Florence’s estate was irrelevant. Numerous cases have held that, regardless of any purported disposition of real property owned by spouses as tenants by the entirety, the surviving spouse takes the whole by operation of law. See, e.g. Levenson v Levenson, 229 AD 402 [2d Dept 1930] (“A question of property held jointly was not involved. Naturally, the survivor took that regardless of the will.”); In re Maguire’s Estate, 251 AD 337 [2d Dept 1937], affd sub nom, 277 NY 527 [1938] (“In an estate by the entirety the husband and wife are each seized of the entire estate, per tout et non per my. Each owns, not an undivided part, but the whole estate. ‘The survivor, upon the death of the other, does not take a new acquisition, but holds under the original grant or devise, the estate being merely freed from participation by the other.”)

At the time of Florence’s death, she and Harald were still married. There was also no evidence that they altered their tenancy by the entirety either by judicial decree (such as a divorce judgment) or written instrument satisfying General Obligations Law Section 3-309. Therefore, the Deed itself was dispositive of the issue of ownership of the house vesting solely into Harald as the surviving spouse.

Foreign Affidavit Properly Accepted by Court

In support of the motion to dismiss the lawsuit, Harald submitted his affidavit signed by him in Jamaica, his new home country. The executor took issue with the court accepting the affidavit without it having been executed before a Notary Public. In rejecting this argument, the court noted that Harald’s affidavit was signed in accordance with the rule set forth in CPLR 2106(b) (“The statement of any person, when that person is physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form:

I affirm this … day of ……, …., under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that I am physically located outside the geographic boundaries of the United States, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.”)

Based upon the above long-standing case law, the court determined that there was no valid cause of action against the defendants. In making that determination, the court cited to the rule that “the sole criterion is whether the pleading states a cause of action, and if from the four corners factual allegations are discerned which, taken together, manifest any cause of action cognizable at law, a motion to dismiss will fail… However, allegations constituting bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such considerations.”

copyr. 2018 Richard A. Klass
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Richard A. Klass Selected for the Fourth Time for the New York Metro Super Lawyers List

Super Lawyers logo for Richard A. Klass Selected for the Fourth Time for the New York Metro Super Lawyers List

We are pleased to announce that Richard Klass, has been selected to the 2018 New York Metro Super Lawyers list. This is an exclusive list, recognizing no more than five percent of attorneys in the New York Metro area.

Super Lawyers, part of Thomson Reuters, is a research-driven, peer influenced rating service of outstanding lawyers who have attained a high degree of peer recognition and professional achievement. Attorneys are selected from more than 70 practice areas and all firm sizes, assuring a credible and relevant annual list.

The annual selections are made using a patented multiphase process that includes:

  • Peer nominations
  • Independent research by Super Lawyers
  • Evaluations from a highly credentialed panel of attorneys

The objective of the Super Lawyers lists is to create a credible, comprehensive and diverse listing of outstanding attorneys to be used as a resource for both referring attorneys and consumers seeking legal counsel.

For more information about Super Lawyers, go to SuperLawyers.com. Super Lawyers is a registered trademark of Thomson Reuters.

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…plaintiff could not establish liability because he could not prove the underlying action.

In Blair v Loduca, 164 AD3d 637, 638-40 [2d Dept 2018], the Second Department considered the argument made by the defendant-attorney sued for legal malpractice that the plaintiff could not establish liability because he could not prove the underlying action.

“ To establish the required element of causation in a legal malpractice action, ‘ a plaintiff must show that he or she would have prevailed in the underlying action … but for the lawyer’s negligence ’ ” (Balan v. Rooney, 152 A.D.3d 733, 733, 61 N.Y.S.3d 29, quoting Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; see Detoni v. McMinkens, 147 A.D.3d 1018, 48 N.Y.S.3d 208). The only issue raised in the defendants’ motion for summary judgment was whether the plaintiff could have prevailed in the underlying action against the property owner.

In a premises liability case, a defendant property owner who moves for summary judgment has the initial burden of making a prima facie showing that it neither created the allegedly *639 dangerous or defective condition nor had actual or constructive notice of its existence (see Martino v. Patmar Props., Inc., 123 A.D.3d 890, 890, 999 N.Y.S.2d 449; Kruger v. Donzelli Realty Corp., 111 A.D.3d 897, 975 N.Y.S.2d 689; Smith v. Christ’s First Presbyt. Church of Hempstead, 93 A.D.3d 839, 941 N.Y.S.2d 211; Meyers v. Big Six Towers, Inc., 85 A.D.3d 877, 925 N.Y.S.2d 607). “ Under the so-called ‘ storm in progress ’ rule, a property owner will not be held responsible for accidents occurring as a result of the accumulation of snow and ice on its premises until an adequate period of time has passed following the cessation of the storm to allow the owner an opportunity to ameliorate the hazards caused by the storm ” (Marchese v. Skenderi, 51 A.D.3d 642, 642, 856 N.Y.S.2d 680; see Solazzo v. New York City Tr. Auth., 6 N.Y.3d 734, 810 N.Y.S.2d 121, 843 N.E.2d 748; Dumela–Felix v. FGP W. St., LLC, 135 A.D.3d 809, 810, 22 N.Y.S.3d 896; McCurdy v. Kyma Holdings, LLC, 109 A.D.3d 799, 799, 971 N.Y.S.2d 137; Smith v. Christ’s First Presbyt. Church of Hempstead, 93 A.D.3d 839, 840, 941 N.Y.S.2d 211; Weller v. Paul, 91 A.D.3d 945, 947, 938 N.Y.S.2d 152; Mazzella v. City of New York, 72 A.D.3d 755, 756, 899 N.Y.S.2d 291). If a storm is ongoing, and a property owner elects to remove snow, the owner must do so with reasonable care or it could be held liable for creating a hazardous condition or exacerbating a natural hazard created by the storm (see Kantor v. Leisure Glen Homeowners Assn., Inc., 95 A.D.3d 1177, 944 N.Y.S.2d 640; Petrocelli v. Marrelli Dev. Corp., 31 A.D.3d 623, 817 N.Y.S.2d 913; Salvanti v. Sunset Indus. Park Assoc., 27 A.D.3d 546, 813 N.Y.S.2d 110; Chaudhry v. East Buffet & Rest., 24 A.D.3d 493, 808 N.Y.S.2d 239). In such an instance, that property owner, if moving for summary judgment in a slip-and-fall case, must demonstrate in support of his or her motion that the snow removal efforts he or she undertook neither created nor exacerbated the allegedly hazardous condition which caused the injured plaintiff to fall (see Kantor v. Leisure Glen Homeowners Assn., Inc., 95 A.D.3d at 1177, 944 N.Y.S.2d 640).

In support of their motion for summary judgment dismissing the complaint in this action, the defendants submitted the plaintiff’s deposition testimony, the deposition testimony of the building’s doorman, the affidavit of a meteorologist, and certified climatological data. These submissions demonstrated that a storm was in progress at the time of the accident, that there was no preexisting ice on the ground when the storm commenced, and that the property owner did not create or exacerbate the allegedly dangerous condition created by the storm in progress (see Aronov v. St. Vincent’s Hous. Dev. Fund Co., Inc., 145 A.D.3d 648, 649, 43 N.Y.S.3d 99; **135 Kantor v. Leisure Glen Homeowners Assn., Inc., 95 A.D.3d at 1177, 944 N.Y.S.2d 640; Ali v. Village of Pleasantville, 95 A.D.3d 796, 797, 943 N.Y.S.2d 582). Since the defendants made a prima facie showing that the storm in progress rule applied *640 to the underlying action, the burden shifted to the plaintiff to show that something other than the precipitation from the storm in progress caused the accident (see Baker v. St. Christopher’s Inn, Inc., 138 A.D.3d 652, 653, 29 N.Y.S.3d 439; Burniston v. Ranric Enters. Corp., 134 A.D.3d 973, 974, 21 N.Y.S.3d 694; Meyers v. Big Six Towers, Inc., 85 A.D.3d 877, 877–878, 925 N.Y.S.2d 607; Alers v. La Bonne Vie Org., 54 A.D.3d 698, 699, 863 N.Y.S.2d 750). The plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court should have granted the defendants’ motion for summary judgment dismissing the complaint because the plaintiff could not have prevailed in the underlying action against the property owner (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; Balan v. Rooney, 152 A.D.3d at 733, 61 N.Y.S.3d 29; Detoni v. McMinkens, 147 A.D.3d at 1018, 48 N.Y.S.3d 208).

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Judiciary Law Section 487

In an action involving Judiciary Law Section 487, the court considered the issue as to what type of matter fits into the definition in the statute, holding:

Contrary to the defendants’ contention, the cause of action alleging a violation of Judiciary Law Section 487 was not duplicative of the cause of action alleging legal malpractice. “ A violation of Judiciary Law Section 487 requires an intent to deceive, whereas a legal malpractice claim is based on negligent conduct ” (Moormann v Perini & Hoerger, 65 AD3d 1106, 1108 [2009] [citation omitted]; see Lauder v Goldhamer, 122 AD3d 908, 911 [2014]; Sabalza v Salgado, 85 AD3d 436, 438 [2011]).

Nevertheless, the Supreme Court should have granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging a violation of Judiciary Law Section 487. A chronic extreme pattern of legal delinquency is not a basis for liability pursuant to Judiciary Law Section 487 (see Dupree v Voorhees, 102 AD3d 912, 913 [2013]). Further, the plaintiffs failed to allege sufficient facts demonstrating that the defendant attorneys had the “ intent to deceive the court or any party ” (Judiciary Law Section 487 [1]; see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 759 [2014]; Agostini v Sobol, 304 AD2d 395, 396 [2003]). Allegations regarding an act of deceit or intent to deceive must be stated with particularity (see CPLR 3016 [b]; Facebook, Inc. v DLA Piper LLP [US], 134 AD3d 610, 615 [2015]; Armstrong v Blank Rome LLP, 126 AD3d 427 [2015]; Putnam County Temple & Jewish Ctr., Inc. v Rhinebeck Sav. Bank, 87 AD3d 1118, 1120 [2011]). That the defendants commenced the underlying action on behalf of the plaintiffs and the plaintiffs failed to prevail in that action does not provide a basis for a cause of action alleging a violation of Judiciary Law Section 487 to recover the legal fees incurred.

Bill Birds, Inc. v Stein Law Firm, P.C., 164 AD3d 635, 637 [2d Dept 2018]

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A party must be mindful of the applicable statute of limitations

When bringing an action, a party must be mindful of the applicable statute of limitations.

Recently, the Second Department in King Tower Realty Corp. v G & G Funding Corp., 163 AD3d 541, 543 [2d Dept 2018] held:

“ ‘ On a motion to dismiss a cause of action pursuant to CPLR 3211 (a) (5) as barred by the applicable statute of limitations, a defendant must establish, prima facie, that the time within which to sue has expired. Once that showing has been made, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations has been tolled, an exception to the limitations period is applicable, or the plaintiff actually commenced the action within the applicable limitations period ’ ” (Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d 1085, 1085-1086 [2016], quoting Tsafatinos v Law Off. of Sanford F. Young, P.C., 121 AD3d 969, 969 [2014]; see Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 734-735 [2015]; Landow v Snow Becker Krauss, P.C., 111 AD3d 795, 796 [2013]). An action to recover damages for legal malpractice must be commenced within three years of accrual (see CPLR 214 [6]; McCoy v Feinman, 99 NY2d 295, 301 [2002]; Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d at 1086; Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d at 735; Farage v Ehrenberg, 124 AD3d 159, 163 [2014]; Landow v Snow Becker Krauss, P.C., 111 AD3d at 796). “ 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 ’ ” (McCoy v Feinman, 99 NY2d at 301, quoting Ackerman v Price Waterhouse, 84 NY2d 535, 541 [1994]; see Farage v Ehrenberg, 124 AD3d at 164). “ 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 ’ ” (McCoy v Feinman, 99 NY2d at 301, quoting Ackerman v Price Waterhouse, 84 NY2d at 541). “ A cause of action to recover damages for legal malpractice accrues when the malpractice is committed, not when it is discovered ” (Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d at 735; see McCoy v Feinman, 99 NY2d at 301; Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d at 1086; Farage v Ehrenberg, 124 AD3d at 164; Landow v Snow Becker Krauss, P.C., 111 AD3d at 796). The continuous representation doctrine serves to toll the statute of limitations and render timely an otherwise time-barred cause of action for legal malpractice, but “ only where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim ” (McCoy v Feinman, 99 NY2d at 306; see Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d at 735).

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On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action…

In Garcia v Polsky, Shouldice & Rosen, P.C., 161 AD3d 828 [2d Dept 2018], the Second Department held that the law firm’s motion to dismiss its former client’s lawsuit for legal malpractice was properly denied by the Supreme Court.

” …On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action… “

“ On 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 ” (Shah v. Exxis, Inc., 138 A.D.3d 970, 971, 31 N.Y.S.3d 512; see Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d at 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; Leon v. Martinez, 84 N.Y.2d at 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511). “ In opposition to such a motion, a plaintiff may submit affidavits to remedy defects in the complaint and preserve inartfully pleaded, but potentially meritorious claims ” (Cron v. Hargro Fabrics, 91 N.Y.2d 362, 366, 670 N.Y.S.2d 973, 694 N.E.2d 56 [internal quotation marks omitted]; see Nilazra, Inc. v. Karakus, Inc., 136 A.D.3d 994, 995, 25 N.Y.S.3d 650). “ Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate ” (Rabos v. R & R Bagels & Bakery, Inc., 100 A.D.3d 849, 851–852, 955 N.Y.S.2d 109; see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 274–275, 401 N.Y.S.2d 182, 372 N.E.2d 17).

5   “ Whether the complaint will later survive a motion for summary judgment, *427 or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss ” (Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 38, 827 N.Y.S.2d 231; see EBC I, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26).

6 7   “ In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages ” (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385, quoting McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714). “ To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence ” (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385).

8   Here, the law firm submitted documentary evidence in support of the motion establishing that its representation of the plaintiff was limited to his Workers’ Compensation claim. That submission did not utterly refute the plaintiff’s allegations, as augmented by his affidavit submitted in opposition to the motion, that the law firm gave him inaccurate legal advice. Accordingly, the Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(1) to dismiss the cause of action alleging legal malpractice insofar as asserted against the law firm.

Moreover, the complaint, as augmented by the plaintiff’s affidavit, sufficiently pleaded a cause of action to recover damages for legal malpractice against the law firm. The evidentiary submissions did not show that the material facts claimed by the plaintiff to be facts were not facts at all and that no significant dispute exists regarding them. Accordingly, the Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging legal malpractice insofar as asserted against the law firm.

R. A. Klass
Your Court Street Lawyer

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Take it Outside: Enforcing an Arbitration Clause and Keeping the Case Out of Court

Referee separating two business men, illustrating article by Richard Klass Esq. about an arbitration clause in a contract

The company is well known for hosting seminars where attendees can learn the ins-and-outs of real estate investing through “ house flipping. ” House flipping involves purchasing a house for a low price, fixing it up and then reselling the house for a profit. The company has all attendees register for its seminars by paying fees and signing its registration agreement.

One of the attendees was dissatisfied with the information she received at the company’s seminar. She decided to sue in New York State Supreme Court for the return of all of her registration fees. The attendee alleged that the minimal “products and services” listed in the materials were “inherently of negligible worth” and “grossly disproportionate” to the money she paid for the seminar.

Arbitration Clause:

Registration Contract Provides for Arbitration

The contract at issue contained terms and conditions which required the resolution of all disputes between the seminar company and its registrants through arbitration. Specifically, the terms and conditions stated “[Seminar Company] and Primary Student all agree to resolve those disputes through binding arbitration or small claims court instead of in courts of general jurisdiction.” Despite the plaintiff’s protestations to the contrary, the complaint alleged a cause of action for breach of contract. Her allegation that there was a failure of consideration because there was negligible value in the seminar services provided by the defendant was in essence an allegation of a contract breach.

The company hired Richard A. Klass, Your Court Street Lawyer, to defend the lawsuit. The company filed a motion to dismiss the action because of the clause in the contract (which the attendee signed in order to register for the seminar) requiring arbitration of any disputes.

Arbitration of Disputes Is Heavily Favored by the Courts

New York State courts heavily favor the resolution of disputes through arbitration where the contracting parties agreed to arbitrate their claims. In this case, the contracts contained terms and conditions requiring the arbitration of disputes between the parties, with a particular process set forth in it.

The Second Department held, in Markowits v. Friedman, 144 AD3d 993, 996-997 [2 Dept. 2016], that “The Supreme Court properly granted that branch of the defendants’ motion which was to stay all remaining proceedings in the action and compel arbitration. Arbitration is a favored method of dispute resolution in New York (see Board of Educ. of Bloomfield Cent. School Dist. v. Christa Constr., 80 N.Y.2d 1031, 593 N.Y.S.2d 178, 608 N.E.2d 755; Matter of Weinrott [Carp], 32 N.Y.2d 190, 199, 344 N.Y.S.2d 848, 298 N.E.2d 42). The threshold issue of whether there is a valid agreement to arbitrate is for the courts (see Matter of Primex Intl. Corp. v. Wal–Mart Stores, 89 N.Y.2d 594, 598, 657 N.Y.S.2d 385, 679 N.E.2d 624; Matter of County of Rockland [Primiano Constr. Co.], 51 N.Y.2d 1, 6–8, 431 N.Y.S.2d 478, 409 N.E.2d 951). Once it is determined that the parties have agreed to arbitrate the subject matter in dispute, the court’s role has ended and it may not address the merits of the particular claims (see Matter of Praetorian Realty Corp. [Presidential Towers Residence], 40 N.Y.2d 897, 389 N.Y.S.2d 351, 357 N.E.2d 1006; Matter of Prinze [Jonas], 38 N.Y.2d 570, 577, 381 N.Y.S.2d 824, 345 N.E.2d 295; Brown v. Bussey, 245 A.D.2d 255, 666 N.Y.S.2d 15).”

Dissatisfaction with the Seminar Doesn’t Equate to Fraud

The complaint did not allege in any way that fraud was involved in inducing the attendee to enter into the contract; rather, she was merely dissatisfied with the information she received from the company at seminars. Even if she was to have alleged fraud, her claims would still have been subject to arbitration under the contract.

In Anderson Street Realty Corp. v. New Rochelle Revitalization LLC, 78 AD3d 972 [2 Dept. 2010], the Second Department held: “On the question of whether the instant dispute should be submitted to arbitration, in Matter of Weinrott (Carp ), 32 N.Y.2d 190, 196, 199, 344 N.Y.S.2d 848, 298 N.E.2d 42, the Court of Appeals ruled that an arbitration clause is generally separable from substantive provisions of a contract, so that an agreement to arbitrate is valid even if the substantive provisions of the contract are induced by fraud (id. at 198, 344 N.Y.S.2d 848, 298 N.E.2d 42). Thus, as a general rule, the issue of fraud in the inducement should be determined by the arbitrator, except where the arbitration clause specifically excludes fraud in the inducement from the issues to be determined by arbitration (see GAF Corp. v. Werner, 66 N.Y.2d 97, 105, 495 N.Y.S.2d 312, 485 N.E.2d 977, cert. denied 475 U.S. 1083, 106 S.Ct. 1463, 89 L.Ed.2d 720; Matter of Silverman [Benmor Coats ], 61 N.Y.2d 299, 308, 473 N.Y.S.2d 774, 461 N.E.2d 1261). The court further held in Anderson Street Realty Corp. v. New Rochelle Revitalization LLC, supra, that “The issue of fraud in the inducement affects the validity of the arbitration clause only when the fraud relates to the arbitration provision itself, or was “part of a grand scheme that permeated the entire contract” (Matter of Weinrott [Carp ], 32 N.Y.2d at 197, 344 N.Y.S.2d 848, 298 N.E.2d 42; see Jamaica Hosp. Med. Ctr. v. Oxford Health Plans [NY ], Inc., 58 A.D.3d 686, 871 N.Y.S.2d 665; Riverside Capital Advisors, Inc. v. Winchester Global Trust Co. Ltd., 21 A.D.3d 887, 800 N.Y.S.2d 754). To demonstrate that fraud permeated the entire contract, it must be established that the agreement was not the result of an arm’s length negotiation (see Nastasi v. Nastasi, 26 A.D.3d 32, 805 N.Y.S.2d 585), or the arbitration clause was inserted into the contract to accomplish a fraudulent scheme (see Utica Mut. Ins. Co. v. Gulf Ins. Co., 306 A.D.2d 877, 880, 762 N.Y.S.2d 730; Oberlander v. Fine Care, 108 A.D.2d 798, 485 N.Y.S.2d 313).”

The New York State Supreme Court justice held that the attendee’s lawsuit had to be dismissed because the arbitration clause of the contract was valid and enforceable. The attendee must now resort to filing a demand for arbitration pursuant to the contract.

Note: It is very common now for contracts between providers of consumer goods and services and consumers to include arbitration clauses. It is important to check for these clauses both before entering into the contract in the first instance and prior to commencement of litigation. While some consumer contract clauses may be stricken by a court as “against public policy,” many times arbitration clauses are upheld.

R. A. Klass
Your Court Street Lawyer

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