With limited exceptions, party seeking to sue an attorney for legal malpractice must prove he was a client.

With very limited exceptions, a party seeking to sue an attorney for legal malpractice must prove that he was the client of the attorney.

In Barrett v Goldstein, 161 AD3d 472, 473 [1st Dept 2018], the court dismissed the case, finding that the attorney-defendant was not the plaintiff’s attorney concerning drafting an agreement. The court specifically held:

“ The documentary evidence conclusively establishes that she was not acting as plaintiff’s attorney. Rather, the terms of the post-nuptial agreement which plaintiff now challenges, as well as numerous emails between plaintiff, his former wife, and Goldstein, reflect the parties’ understanding and agreement that Goldstein would draft the post-nuptial agreement, and the spouses’ separate counsel would review it before execution. Accordingly, plaintiff has not sufficiently alleged an attorney-client relationship between him and Goldstein, or that she was negligent and that her negligence was the “but for” cause of his alleged injuries. ”

R. A. Klass
Your Court Street Lawyer

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When plaintiff fails to include a particular claim and seeks to amend the complaint

Sometimes, a plaintiff will fail to include a particular claim against a defendant and will seek to amend the complaint to include the claim. However, if the amendment of the complaint does not assert a cause of action against the defendant on the new claim, the court may deny the motion. In Panos v Eisen, 160 AD3d 759 [2d Dept 2018], the court held:

The Supreme Court should have denied that branch of the plaintiff’s cross motion which was for leave to amend the complaint to assert a cause of action against the defendants to recover damages for breach of fiduciary duty. “ Although leave to amend a pleading should be freely given in the absence of prejudice or surprise to the opposing party (see CPLR 3025 [b] ), the motion should be denied where the proposed amendment is palpably insufficient or patently devoid of merit ” (APF Mgt. Co., LLC v. Munn, 151 A.D.3d 668, 670, 56 N.Y.S.3d 514). Here, the plaintiff proposed to amend the complaint to assert a cause of action against the defendants to recover damages for breach of fiduciary duty. However, this cause of action is based on the same underlying facts as the legal malpractice cause of action and does not allege distinct damages. Therefore, the proposed breach of fiduciary duty cause of action was duplicative of the legal malpractice cause of action (see Schwartz v. Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP, 123 A.D.3d 901, 902, 999 N.Y.S.2d 444; Keness v. Feldman, Kramer & Monaco, P.C., 105 A.D.3d 812, 813–814, 963 N.Y.S.2d 313; Kvetnaya v. Tylo, 49 A.D.3d 608, 609, 854 N.Y.S.2d 425).

R. A. Klass
Your Court Street Lawyer

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Brooklyn Bar Association helps bring lawyers up to speed on Appellate Division e-filing requirements

” The Brooklyn Bar Association hosted a team of attorneys, clerks and legal services representatives for a recent continuing legal education seminar on the new e-filing requirements in the Appellate Division on Tuesday, June 19.

” The lecture was titled ” New E-filing Requirements in the Appellate Division, Second Department ” and it was moderated by Richard A. Klass, the Brooklyn Bar Association’s treasurer.

” The panel included Aprilanne Agostino and Caterina Madaffari from the clerk’s office in the Appellate Division, Lynne Bailey from Dick Bailey Service, Tricia Reddi and Christina Anthony. ”

Follow this link to read the article in its entirety on the Brooklyn Eagle’s website.

 

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…Applicable to the particular matter in which malpractice is claimed

The statute of limitations in legal malpractice cases can be tolled when there has been continuous representation of the client by the attorney. However, it is applicable only to the particular matter in which malpractice is claimed.

See, Davis v Cohen & Gresser, LLP, 160 AD3d 484, 486 [1st Dept 2018], in which the court held:

“ the continuous representation doctrine does not apply where there is only a vague “ ongoing representation ” (Johnson v. Proskauer Rose LLP, 129 A.D.3d 59, 68, 9 N.Y.S.3d 201 [1st Dept. 2015] ). For the doctrine to apply, the representation must be specifically related to the subject matter underlying the malpractice claim, and there must be a mutual understanding of need for further services in connection with that same subject matter (see Shumsky, 96 N.Y.2d at 168, 726 N.Y.S.2d 365, 750 N.E.2d 67; see also CLP Leasing, 12 A.D.3d at 227, 784 N.Y.S.2d 535). ”

– R. A. Klass
Your Court Street Lawyer

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Issue of fact concerning the continuous representation doctrine

…issue of fact concerning the continuous representation doctrine…

In an action brought by a client against his law firm, the appellate court reversed the granting of the law firm’s motion for summary judgment based upon an issue of fact concerning the continuous representation doctrine.

Under the continuous representation doctrine, a person seeking professional assistance is placed in a difficult position if required to sue his or her attorney while the attorney continues to represent them on a particular legal matter (Shumsky v. Eisenstein, 96 N.Y.2d 164, 167–168, 726 N.Y.S.2d 365, 750 N.E.2d 67 [2001] ). Accordingly, the doctrine tolls the running of the statute of limitations on malpractice claims until the ongoing representation is completed (id.). However, the application of this doctrine is limited “to the course of representation concerning a specific legal matter,” and is not applicable to the client’s “continuing general relationship with a lawyer … involving only routine contact for miscellaneous legal representation … unrelated to the matter upon which the allegations of malpractice are predicated” (id. at 168, 726 N.Y.S.2d 365, 750 N.E.2d 67). The record presents an issue of fact as to whether defendant continuously represented plaintiff in connection with a personal injury claim based on the accident, such as to toll the statute of limitations during that time (see Glamm v. Allen, 57 N.Y.2d 87, 94, 453 N.Y.S.2d 674, 439 N.E.2d 390 [1982]; Waggoner v. Caruso, 68 A.D.3d 1, 6–7, 886 N.Y.S.2d 368 [1st Dept. 2009] ). Encalada v McCarthy, Chachanover & Rosado, LLP, 160 AD3d 475 [1st Dept 2018].

R. A. Klass
Your Court Street Lawyer

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News from Brooklyn Eagle: Brandeis Society honors Justice Jeffrey Cohen and Rich Klass Sworn in as Treasurer.

“The new directors sworn in included Justice Esther M. Morgenstern, Administrative Judge Lawrence Knipel, Justice Marsha Steinhardt and David Chidekel. Cohen himself is also counted among the new directors.”

See more here.

– R. A. Klass
Your Court Street Lawyer

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Client dissatisfaction doesn’t mean he can sue his lawyer for legal malpractice.

…general dissatisfaction with the lawyer’s strategy…

Just because a client is dissatisfied with his lawyer, doesn’t mean that he can sue the lawyer for legal malpractice.

In Genet v Buzin, 159 AD3d 540 [1st Dept 2018], the court held that a general dissatisfaction with the lawyer’s strategy wasn’t enough to sustain a lawsuit against him. The court held: “Plaintiffs’ proposed amendment is “palpably insufficient” (MBIA Ins. Corp. v. Greystone & Co., Inc., 74 A.D.3d 499, 499, 901 N.Y.S.2d 522 [1st Dept. 2010] ). The allegations underlying the legal malpractice claim merely “reflect plaintiff[s’] dissatisfaction with defendants’ strategic choices and tactics; there is no showing that those choices and tactics were unreasonable” (Kassel v. Donohue, 127 A.D.3d 674, 674, 6 N.Y.S.3d 916 [1st Dept. 2015], lv dismissed 26 N.Y.3d 940, 17 N.Y.S.3d 57, 38 N.E.3d 800 [2015]; see also Rosner v. Paley, 65 N.Y.2d 736, 738, 492 N.Y.S.2d 13, 481 N.E.2d 553 [1985] ). The breach of contract claim is duplicative of the legal malpractice claim, since it arises from the same facts and alleges similar damages (see Rivas v. Raymond Schwartzberg & Assoc., PLLC, 52 A.D.3d 401, 861 N.Y.S.2d 313 [1st Dept. 2008] ).”

– R. A. Klass
Your Court Street Lawyer

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A New York City Marshal carries out almost all the same tasks as Sheriffs…

Photo of toddler with sheriff's star illustrating article by Richard Klass Esq. about New York City marshal

In New York City, a City Marshal carries out almost all of the same tasks as Sheriffs, including evicting tenants, towing cars, seizing businesses and levying on bank accounts. However, unlike Sheriffs, City Marshals aren’t elected to office, aren’t government officers who get paid salaries, and make their income from fees and a percentage of moneys collected through their enforcement duties. Also, their jurisdiction extends only throughout the City of New York.

Entry of Judgment by the Creditor

A company in the business of making credit available to small businesses through the use of merchant service agreements entered into an agreement with a night club. As part of the agreement, it obtained a signed confession of judgment from the night club which, in the event of a default in repayment of the credit line, could be entered with the county clerk. At some point, the debtor defaulted under the agreement and the creditor entered the confession of judgment with the clerk of court. Once judgment was entered, the creditor issued an Execution to the City Marshal. An Execution is a document which directs the enforcement officer (Sheriff or Marshal) to attach and levy upon certain assets belonging to the judgment debtor in order to satisfy the judgment.

The New York City Marshal Levied upon the Debtor’s Out-of-State Bank Account.

The City Marshal levied upon the debtor’s bank account located far outside the City of New York, in Cincinnati, Ohio. The bank honored the levy, remitting the funds contained in the account to the City Marshal (which amounted to approximately half of the balance due on the judgment). In turn, the City Marshal remitted the net proceeds to the judgment creditor after deducting his levy and poundage fees.

The debtor filed a lawsuit against the City Marshal for both money damages for the amount withdrawn from its account and for punitive damages. The debtor claimed that the City Marshal acted outside of his jurisdiction by levying on the Ohio bank account. The City Marshal hired Richard A. Klass, Your Court Street Lawyer, to defend him against the lawsuit.

A City Marshal Is Subject to Reprimand

Article 16 of the New York City Civil Court Act governs City Marshals. Article 16 provides that the appellate courts may reprimand, censure, suspend or remove a City Marshal for cause through established, detailed procedures. Through delegation from the courts, the NYC Department of Investigation is charged with oversight of the City Marshals, including taking complaints, conducting investigations, and regulating their activities subject to court approval. Among the requirements for serving, a City Marshal must post a bond to answer for any violation of his duties.

Juxtaposed with the courts’ power of reprimand, City Marshals may also be held civilly liable for any damages caused by negligently executing a levy or warrant. See, Korsinsky v. Rose, 120 AD3d 1307 [2d Dept. 2014]. To establish a cause of action for negligence, however, a plaintiff must establish the existence of a duty on the defendant’s part, breach of that duty and damages. Specifically, a plaintiff suing a Marshal or Sheriff for wrongful execution must prove that he lacked or exceeded his authority while performing his duties and caused damage. While there are occasions that a judgment creditor may be held liable for conversion (under the principle of caveat creditor), an enforcement officer acting under an execution that was regular on its face and issued from a court of competent jurisdiction is protected by law. Ruckman v. Cowell, 1 NY 505 [1848].

Judgment Debtor Did Not Suffer Any Damages

In dismissing the case against the City Marshal, the judge focused on the issue of damages. In any negligence case, it is critical that the plaintiff-injured party prove that it was damaged as a result of the defendant’s acts. In this case, the judgment debtor could not establish that it sustained any damages as a result of the City Marshal’s levy on the out-of-state bank; there was no dispute that the moneys collected from the debtor’s bank account were properly applied towards partial satisfaction of the judgment. The judge held that the lawsuit was “a blatant attempt to avoid having to pay its bill (i.e. having the Marshal pay the money that Plaintiff owes the Judgment Creditor) and under the transparent guide of this action against the Marshal (which would in effect amount to a sanction of the Marshal).”

The court found that, by vesting authority with the appellate courts over City Marshals, the legislature did not create a private remedy where one was never intended. Since there exists both a forum and mechanism for addressing any alleged abuses of authority by City Marshals, the court would not entertain a lawsuit, especially where the City Marshal seemingly executed on a facially-valid confession of judgment. See, Bam Bam Entertainment LLC v. Pagnotta, [Sup. Kings 4/11/18], New York Law Journal, April 19, 2018. (Bam Bam Entertainment LLC v. Pagnotta decision/order available here in PDF format.)

Richard A. Klass, Esq.

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.com with any questions.

Prior results do not guarantee a similar outcome.

©2018 Richard A. Klass.
Image at top of page: Getty Images

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Important for parties in litigation to appear before court on all conferences and motion hearing dates

Important for parties in litigation to appear before court on all conferences and motion hearing dates

It is very important for parties in litigation to appear before the court on all conferences and motion hearing dates. In a recent legal malpractice case (Stein v Davidow, Davidow, Siegel & Stern, LLP, 157 AD3d 741, 742–43 [2d Dept 2018] , the court denied the plaintiffs’ motion to vacate their default. The court held that:

In order to vacate a default in appearing at a scheduled court conference, a plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action (see CPLR 5015[a] [1]; Wright v. City of Poughkeepsie, 136 A.D.3d 809, 809, 24 N.Y.S.3d 523; Mazzio v. Jennings, 128 A.D.3d 1032, 1032, 8 N.Y.S.3d 596; Hanscom v. Goldman, 109 A.D.3d 964, 965, 972 N.Y.S.2d 76). A determination of whether an excuse is reasonable lies within the sound discretion of the Supreme Court (see GMAC Mtge., LLC v. Guccione, 127 A.D.3d 1136, 1138, 9 N.Y.S.3d 83; Herrera v. MTA Bus Co., 100 A.D.3d 962, 963, 954 N.Y.S.2d 631).

 Here, the Supreme Court providently exercised its discretion in determining that the plaintiffs did not offer a reasonable excuse for their default. Neither the fact that Stein was proceeding pro se nor his claims that he was unaware of the consequences of failing to appear constitute a reasonable excuse (see U.S. Bank N.A. v. Slavinski, 78 A.D.3d 1167, 1167, 912 N.Y.S.2d 285; Dorrer v. Berry, 37 A.D.3d 519, 520, 830 N.Y.S.2d 277). The plaintiffs’ remaining arguments to support their contention that their default should be excused are improperly raised for the first time on appeal, and have not been considered by this Court *743 see Tulino v. Tulino, 148 A.D.3d 755, 757, 48 N.Y.S.3d 258; Point Holding, LLC v. Crittenden, 119 A.D.3d 918, 920, 990 N.Y.S.2d 575).

As the plaintiffs failed to offer a reasonable excuse for their default, the issue of whether the plaintiffs had a potentially meritorious cause of action need not be addressed (see U.S. Bank, N.A. v. Dorvelus, 140 A.D.3d 850, 852, 32 N.Y.S.3d 631; Vested Bus. Brokers, Ltd. v. Ragone, 131 A.D.3d 1232, 1234, 17 N.Y.S.3d 447; Abdelqader v. Abdelqader, 120 A.D.3d 1275, 1276, 993 N.Y.S.2d 71). Accordingly, the Supreme Court properly denied the plaintiffs’ motion pursuant to CPLR 5015(a)(1) to vacate their default.

– R. A. Klass
Your Court Street Lawyer

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Brooklynites get lesson on consumer debt and bankruptcy from local bar association

From left: Salaria Robinson, Fern J. Finkel, Richard A. Klass and Roseann Hiebert. Brooklyn Eagle photos by Rob Abruzzese
From left: Salaria Robinson, Fern J. Finkel, Richard A. Klass and Roseann Hiebert. Brooklyn Eagle photos by Rob Abruzzese