Attorney not liable to client for testimony of a witness at a deposition

In Caso v Miranda Sambursky Slone Sklarin Verveniotis LLP, 180 AD3d 611, 612-13 [1st Dept 2020], the court held that the attorney was not liable to his client for testimony of a witness at a deposition:

Plaintiff’s contention in this legal malpractice action is that Arenas should have been better “prepared” for his deposition in the underlying personal injury action, so he could “remember” the statements he made to the detective. Plaintiff claims that, had defendants not been negligent, there would have been a plaintiff’s verdict. He claims that Arenas’s testimony damaged his case and prevented him from prevailing.

“[M]ere speculation of a loss resulting from an attorney’s alleged omissions … is insufficient to sustain a claim” for legal malpractice” (Gallet, Dreyer & Berkey, LLP v. Basile, 141 A.D.3d 405, 405–406, 35 N.Y.S.3d 56 [1st Dept. 2016] [internal quotation marks omitted]; Geller v. Harris, 258 A.D.2d 421, 685 N.Y.S.2d 734 [1st Dept. 1999] ). Plaintiff’s assertion that, had Arenas been better prepared, the jury would have returned a favorable verdict is pure speculation (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 443, 835 N.Y.S.2d 534, 867 N.E.2d 385 [2007]; Brookwood v. Alston & Bird, LLC, 146 A.D.3d 662, 49 N.Y.S.3d 10 [1st Dept. 2017]. Defendants met their burden of showing that plaintiff cannot establish causation, in that plaintiff cannot prove that it would have prevailed in the underlying action “but for” defendant’s alleged negligence in preparing Arenas for his deposition (see Rudolf v. Shayne, 8 N.Y.3d 438 at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385).

R. A. Klass
Your Court Street Lawyer

.
Previous post

#CourtStreetLawyer #legalmalpractice

Scales of justice

Brooklyn Bar Association helps attorneys improve their resumes during COVID-19

Richard Klass in white shirt speaking at Brooklyn Bar Association, helping attorneys dealing with unemployment during COVID-19 pandemic.
Richard Klass (pictured), second vice president of the Brooklyn Bar Association, moderated the panel, which included attorney Andrea Bonina and retired attorney David Sarnoff. Screenshots via Zoom

Reported by Rob Abruzzese, Legal Editor
opens in a new windowBrooklyn Daily Eagle
May 26, 2020

“More than two million New Yorkers have filed for unemployment since the COVID-19 pandemic started, and lawyers are not immune. To help laid-off attorneys and people who are simply looking for a new job, the Brooklyn Bar Association held a continuing legal education seminar to help ensure that lawyers are putting their best foot forward.

“On Monday, May 18, Richard Klass, second vice president of the Brooklyn Bar Association, moderated a two-hour CLE entitled, “Resume Building and Interview Skills” along with panelists Andrea Bonina and David Sarnoff….”

#COVID19 #BklynEagle #BrooklynBarAssoc #CourtStreetLawyer


R. A. Klass
Your Court Street Lawyer

.
Previous post

Scales of justice

When Clients Don’t Pay Their Lawyers

Red text reading "Always the Last to Know" with blue text "Be Paid" superimposed over the word "know" illustrating article about legal fees.

The crisis has been averted. The lawyer did a great job for his client. The lawyer sent his client the final bill for services rendered. Unfortunately, the client now had other bills to pay and the legal problem the lawyer dealt with was starting to appear very small in the rearview mirror.

The lawyer came to Richard A. KlassYour Court Street Lawyer, to sue the client to collect on the outstanding bill.

Complaint for Legal Fees Filed against Client

The lawyer commenced an action against his client alleging several causes of action in the complaint, including:

Breach of contract: A written retainer agreement with an attorney is an enforceable contract. As held in Jacobson v Sassower, 66 NY2d 991, 993 [1985], “as a matter of public policy, courts pay particular attention to fee arrangements between attorneys and their clients. An attorney has the burden of showing that a fee contract is fair, reasonable, and fully known and understood by the client.”

Assuming that the fee arrangements were fair to the client, the lawyer may establish his prima facie entitlement to judgment as a matter of law against the client on the cause of action alleging breach of contract by submitting evidence of the existence of a contract, the lawyer’s performance under the contract, the client’s breach of the contract, and resulting damages. SeeJoseph W. Ryan, Jr., P.C. v Faibish, 136 AD3d 984 [2d Dept 2016].

Account Stated: Many times, an attorney is able to prove that he sent his client monthly invoices and the client never said one word about fees; then, when the bill comes due, the client ‘wakes up’ and starts objecting to all of the attorney’s charges.

An attorney can make out a prima facie showing of his entitlement to summary judgment on an “account stated” claim by providing documentary evidence of the invoices, and an affidavit stating that he sent the invoices on a monthly basis to defendant, and that defendant received the invoices and failed to object to the invoices until this litigation. SeeGlassman v Weinberg, 154 AD3d 407 [1st Dept 2017].

Quantum Meruit: This Latin phrase basically means that one should be paid the reasonable value of services rendered on behalf of another.

If the terms of a retainer agreement are not established, or if a client discharges an attorney without cause, the attorney may recover only in quantum meruit to the extent that the fair and reasonable value of legal services can be established. SeeSeth Rubenstein, P.C. v Ganea, 41 AD3d 54 [2d Dept 2007]. A cause of action for quantum meruit requires a showing of “a plaintiff’s performance of services in good faith, acceptance of those services by a defendant, an expectation of compensation and proof of the reasonable value of the services provided.” SeeHyman v Schwartz, 127 AD3d 1281, 1282 [3d Dept 2015].

Pre-litigation Considerations

Before an attorney files a lawsuit to recover legal fees, there are a number of considerations as to whether it is worth doing. The commencement of a lawsuit by an attorney against his client ought to be the last resort after an attempt to resolve nonpayment. While not exhaustive, some questions to ask before suing a client may be:

  • Did the attorney achieve a favorable result? While not necessarily a defense, the client in unsuccessful litigation may perceive that the attorney provided no value.
  • Is the client judgment-proof? Will any judgment actually be collectible?
  • Is there a written retainer agreement? It may be required by Uniform Rules of Court Part 1215.
  • Were contemporaneous time records kept?
  • Was the client sent detailed bills at regular intervals?
  • Has the client threatened to sue for legal malpractice? An estimated 40% to 50% of legal malpractice cases emanate from an attorney’s collection case.
  • Is the amount of unpaid fees large enough to justify bringing an action?
  • Is there a requirement for service of a notice of the availability of fee dispute arbitration under Uniform Rules of Court Part 137.
  • Is there the possibility of pursuing a charging lien on the case, or a retaining lien on the file?
  • How long has the clock been ticking on the dispute? The statutes of limitations are three years for the client to sue for legal malpractice and six years for the attorney to sue the client to collect his fees.

– 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.

© 2020 Richard A. Klass
Credits:
Image at top of page: Richard A. Klass

R. A. Klass
Your Court Street Lawyer

Next post
Previous post

Scales of justice

Attorneys: finding jobs during the pandemic. CLE hosted by Brooklyn Bar Association.

Brooklyn Bar Association to host CLE to help attorneys find jobs during the pandemic

The Brooklyn Bar Association understands that younger and more inexperienced attorneys can struggle to find a good job even in the best of times, but things are especially tricky now that the COVID-19 pandemic has put severe restrictions on going out and building a network that can lead to a job.

That’s why three attorneys, past President Andrea Bonina, second Vice President Richard Klass, along with David Sarnoff, are planning to host a continuing legal education seminar that will live-stream via Zoom on Monday, May 18 entitled, “Resume Building and Interview Skills,” where they will share specific strategies that can help during the pandemic and beyond.

In a two-hour CLE, the three panelists will start with a deep dive into resume construction with suggestions for how attorneys should address gaps, and ways to be concise and be specific with their language when it comes to specific skills. They will also discuss ways to network during the quarantine and will specifically go over routines that will work even after the pandemic is over.

R. A. Klass
Your Court Street Lawyer

Next post
Previous post

Scales of justice

Liable for failing to take actions outside the scope of representation?

In Portus Singapore PTE LTD v Kenyon & Kenyon LLP, 16CV6865 (JGK), 2020 WL 1501886, at *5-6 [SDNY Mar. 30, 2020], the court dealt with the issue of whether the attorney can be held liable to his client for failing to take actions outside the scope of his representation. The court held:

In order to demonstrate that a lawyer was negligent “a plaintiff must show that an 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 professional duty caused the plaintiff’s actual damages.” McCoy v. Feinman, 99 N.Y.2d 295, 755 N.Y.S.2d 693, 785 N.E.2d 714, 718-19 (2002) (internal quotation marks and citations omitted). “What constitutes ordinary and reasonable skill and knowledge cannot be fixed with precision, but should be measured at the time of representation.” Darby & Darby, P.C. v. VSI Intern., Inc., 95 N.Y.2d 308, 716 N.Y.S.2d 378, 739 N.E.2d 744, 747 (2000). Generally, “ordinary and reasonable skill” is determined by looking to standards of legal practice in the State of New York. See, e.g., Sokol, 468 F. Supp. 2d at 637 (discussing New York law practice commentary). Moreover, “[a]n attorney may not be held liable for failing to act outside the scope of a retainer.” Attallah v. Milbank, Tweed, Hadley & McCloy, LLP, 168 A.D.3d 1026, 93 N.Y.S.3d 353, 356 (2019).

In AmBase Corp. v. Davis Polk & Wardwell, 8 N.Y.3d 428, 834 N.Y.S.2d 705, 866 N.E.2d 1033, 1035 (2007), following the liquidation of its parent company, the plaintiff corporation AmBase assumed primary liability for the parent corporation’s federal income taxes and secondary liability for all other liabilities. Following liquidation, the Internal Revenue Service (“IRS”) found the parent company liable for six years’ worth of withholding taxes, which would be imputed to AmBase under the liquidation agreement. Id. AmBase retained Davis Polk “to represent [it] as agent for [the parent corporation] to resolve the tax issues currently before” the IRS. Id., 834 N.Y.S.2d 705, 866 N.E.2d at 1037. Davis Polk then successfully challenged in the Tax Court the IRS’s determination that AmBase was liable. Id., 834 N.Y.S.2d 705, 866 N.E.2d at 1035. AmBase then turned around and sued Davis Polk for legal malpractice on the ground that Davis Polk had failed to advise AmBase that AmBase was only secondarily liable for payment of taxes. Id. AmBase alleged that although it ultimately prevailed in the Tax Court, Davis Polk’s negligence forced AmBase to maintain a multi-million-dollar loss on its books, thereby creating an appearance of insolvency that resulted in lost business opportunities. Id., 834 N.Y.S.2d 705, 866 N.E.2d at 1036.

The New York Court of Appeals noted that the plain language of the retainer agreement “indicates that Davis Polk was retained to litigate the amount of tax liability and not to determine whether the tax liability could be allocated to another entity.” Id., 834 N.Y.S.2d 705, 866 N.E.2d at 1037. Noting that “the issue whether plaintiff was primarily or secondarily liable for the subject tax liability was outside the scope of its representation,” the court held that the “defendants exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession when they focused their efforts on the controversy between AmBase and the IRS – the subject of the retainer agreement – resulting in a most favorable outcome, which was publicly praised by AmBase principals.” Id.

Similarly, in Milbank, Tweed, the law firm agreed in its engagement letter to represent the plaintiff “to investigate and consider options that may be available to urge administrative reconsideration” of the plaintiff’s expulsion from the New York College of Osteopathic Medicine. 93 N.Y.S.3d at 355. The Appellate Division of the Supreme Court affirmed the dismissal of the plaintiff’s complaint that had alleged malpractice on the ground that Milbank, Tweed did not actually negotiate the plaintiff’s readmission to the school. Id. at 356. The court reasoned that an attorney cannot be held liable for failing to act outside the scope of a retainer and that negotiation with the school went beyond the stated scope of the agreement letter. Id.

Davis Polk and Milbank, Tweed stand for the proposition that the failure by a lawyer to take actions outside the scope of that lawyer’s representation of a client cannot form the basis of a legal malpractice suit.

R. A. Klass
Your Court Street Lawyer

Next post
Previous post

Scales of justice

Breach of contract action against an attorney

The court in Judd Burstein, P.C. v Long, 797 Fed Appx 585, 587-88 [2d Cir 2019] recited the law regarding certain damages in the context of a breach of contract action against an attorney: Under New York law, it is well established that where “[a]ttorney’s services” are “the substance of the action alleging a breach of the retainer agreement,” such as here, “the costs of obtaining substituted services [are] … consequential damages.” Hinman, Straub, Pigors & Manning, P.C. v. Broder, 89 A.D.2d 278, 456 N.Y.S.2d 834, 836 (1982); accord *588 Affiliated Credit Adjustors, Inc. v. Carlucci & Legum, 139 A.D.2d 611, 527 N.Y.S.2d 426, 428 (1988) (stating, in the context of an action for legal malpractice, that legal fees “allegedly incurred in retaining alternate counsel to perform the services for which the defendants were originally retained … [are] not merely an incident of litigation but, instead, constitute[ ] consequential damages which may be recoverable”). Such damages “may include litigation expenses incurred in an attempt to avoid, minimize, or reduce the damage caused by the attorney’s wrongful conduct.” Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 443, 835 N.Y.S.2d 534, 867 N.E.2d 385 (2007) (internal quotation marks and citations omitted).

R. A. Klass
Your Court Street Lawyer

Next post
Previous post

Scales of justice

Plaintiffs’ Judiciary Law Section 487 cause of action was properly dismissed.

In dismissing the plaintiff’s claim against an attorney for violating Judiciary Law Section 487, the New York State Court of Appeals held:

Here, viewing the facts in the light most favorable to plaintiffs (see De Lourdes Torres v Jones, 26 NY3d 742, 763 [2016]), defendants established prima facie entitlement to judgment as a matter of law on the Judiciary Law Section 487 (1) claim by demonstrating that plaintiffs failed to allege that defendants engaged in deceit or collusion during the course of the underlying federal intellectual property lawsuit against GM and EMI [FN2]. In response, plaintiffs failed to satisfy their burden to establish material, triable issues of fact (id.). The affidavits plaintiffs submitted in opposition to summary judgment did not allege that defendants committed any acts of deceit or collusion during the pendency of the underlying federal lawsuit. To the extent defendants were alleged to have made deceitful statements, plaintiffs’ allegation that defendants induced them to file a meritless lawsuit based on misleading legal advice preceding commencement of the lawsuit is not meaningfully distinguishable from the conduct we deemed insufficient to state a viable attorney deceit claim in Looff (97 NY at 482). The statute does not encompass the filing of a pleading or brief containing nonmeritorious legal arguments, as such statements cannot support a claim under the statute [FN3]. Similarly, even assuming it constituted deceit or collusion, defendants’ alleged months-long delay in informing plaintiffs that their federal lawsuit had been dismissed occurred after the litigation had ended and therefore falls outside the scope of Judiciary Law Section 487 (1). Thus, plaintiffs’ Judiciary Law Section 487 cause of action was properly dismissed.

Bill Birds, Inc. v Stein Law Firm, P.C. 2020 NY Slip Op 02125 Decided on March 31, 2020 Court of Appeals DiFiore, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law Section 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on March 31, 2020
No. 19

[*1]Bill Birds, Inc. et al., Appellants,
v
Stein Law Firm, P.C. et al., Respondents.

R. A. Klass
Your Court Street Lawyer

Next post
Previous post

The meaning and coverage of a general release depends on the controversy being settled.

“…does not necessarily mean that the release covered all matters…”

While a party may negotiate for a general release when settling a party’s claim, it does not necessarily mean that the release covered all matters which were not envisioned when the release was given. As stated in Gorunkati v Baker Sanders, LLC, 179 AD3d 904, 906 [2d Dept 2020]:

Generally, “a valid release constitutes a complete bar to an action on a claim which is the subject of the release” (Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 NY3d 269, 276 [2011] [internal quotation marks omitted]). However, “ ‘[t]he meaning and coverage of a general release depends on the controversy being settled and upon the purpose for which the release was actually given . . . . A release may not be read to cover matters which the parties did not desire or intend to dispose of’ ” (Wechsler v Diamond Sugar Co., Inc., 29 AD3d 681, 682 [2006], quoting Lefrak SBN Assoc. v Kennedy Galleries, 203 AD2d 256, 257 [1994]; see Demaria v Brenhouse, 277 AD2d 344 [2000]). A defendant bears the initial burden of establishing that it has been released from any claims (see Burgos v New York Presbyt. Hosp., 155 AD3d 598, 600 [2017]).

R. A. Klass
Your Court Street Lawyer

Next post
Previous post

Appeals court reverses dismissal of action in personal injury case. Proposal to install elevator gate was the smoking “gate”.

Scan of redacted proposal, with words in bold saying, about an elevator that lacked a gate on the inside of the elevator platform, "this is extremely dangerous, someone could get hurt." This image illustrates an article by Richard Klass discussing a personal injury case.

The company’s porter was operating a manually-controlled freight elevator in a large Manhattan industrial building owned by the defendants. The porter, who was employed by a tenant of the building, was in the process of bringing the elevator up to the eighth floor at the time of the accident. According to him, the heel of his left foot became caught between the fourth floor landing and the moving elevator. The elevator did not have a gate separating the interior side of the elevator cab from the elevator shaft. The porter allegedly sustained severe injuries to his left foot and ankle as a result of the accident, which, unfortunately, may later lead to the amputation of his foot.

The porter came to Richard A. Klass, Your Court Street Lawyer, to sue the building’s owners for his severe personal injuries. Mr. Klass brought in the preeminent personal injury firm, Stefano A. Filippazzo, P.C., to pursue and litigate the porter’s case.

Elevator in compliance – when installed over 80 years ago!

This industrial building was built pre-war. The freight elevator was installed a very long time ago yet remained in operation through at least the time of the porter’s accident in 2009. It was undisputed that the elevator was in compliance with all applicable rules, regulations, and codes at the time of its installation. The building owners moved for summary judgment dismissing the complaint against them on this basis.

Proposal: “This is extremely dangerous”

Two years before this terrible accident, the building’s owners received a proposal from their elevator service company to install a new manual gate with guide tracks and chains, which would allow for the smooth operation of the elevator with minimal risk of injury to its operator. The proposal stated: “Presently there are no gates on inside of elevator platform, building personnel are leaning over platform, this is extremely dangerous, someone could get hurt” (bold added for emphasis).

Appeals court reverses dismissal of action.

Shockingly, the trial court dismissed the porter’s lawsuit, relying on the building owners’ argument that, since the elevator was in code compliance when it was installed (despite that being a very long time ago), there could be no liability for there being no gate installed. Stefano A. Filippazzo could not give up on the case, believing that the judge got it 100% wrong! The porter appealed the dismissal, arguing that the owners’ failure to install a gate on the interior side of the freight elevator constituted a serious, defective condition.

In reversing the dismissal, the appellate court held that:

“[T]he plaintiff raised a triable issue of fact as to whether the defendants were negligent. The plaintiff submitted evidence demonstrating that prior to the accident, the defendants were on notice of the dangerous condition of the elevator when they were provided with proposals from their own elevator service company, which proposals stated that because there was no gate on the inside of the elevator platform, an extremely dangerous condition existed (see DeCarlo v Vacchio, 147 AD3d at 725).”

No proof of code violations does not doom negligence claim.

Recognizing that the elevator was in code compliance, the appellate court was unwilling to come to the same conclusion as the trial court that there could be no personal injury claim. Rather, the court held that a trial court consider the absence of code violations in the context of the overall situation. In Romero v Waterfront N.Y., 168 AD3d 1012 [2d Dept 2019], the court opined:

However, “the absence of a violation of a specific code or ordinance is not dispositive of a plaintiff’s allegations based on common-law negligence principles” (Alexis v Motel Oasis, 143 AD3d 926, 927 [2016]; see DeCarlo v Vacchio, 147 AD3d 724, 725 [2017]; Zebzda v Hudson St., LLC, 72 AD3d 679, 680-681 [2010]). Accordingly, a defendant may be held negligent for departing from generally accepted customs and practices even when the allegedly defective condition is in compliance with the relevant codes and ordinances (see Zebzda v Hudson St., LLC, 72 AD3d at 680-681).

Based upon the appellate court’s reversal, the personal injury claim was remanded back to the trial court. When faced with both the porter’s substantial, lifetime injuries and the actual notice received from the elevator service company of the existence of a dangerous, defective condition, the building owners settled the personal injury lawsuit.

R. A. Klass
Your Court Street Lawyer

Next post
Previous post

Statute of limitations tolled by reason of disability or insanity?

“…statute of limitations for the client to bring a legal malpractice…”

In Jemima O. v Schwartzapfel, P.C., 178 AD3d 474, 475 [1st Dept 2019], the court held that the statute of limitations for the client to bring a legal malpractice was not tolled. The court held:

Plaintiff’s argument that the statute of limitations was tolled by reason of disability or insanity pursuant to CPLR 208 was properly rejected by the motion court, without a hearing. Plaintiff failed to put forth any evidence that would support a finding of disability or insanity sufficient to show that plaintiff was unable to function in society (see Santo B. v Roman Catholic Archdiocese of N.Y., 51 AD3d 956, 958 [2d Dept 2008]). In particular, she did not submit any doctors’ affidavits or medical records documenting the severity of her condition (see Matter of Brigade v Olatoye, 167 AD3d 462 [1st Dept 2018]; Santana v Union Hosp. of Bronx, 300 AD2d 56 [1st Dept 2002]). Moreover, the record does not show that plaintiff was incapable of protecting her legal rights despite her mental health diagnosis (see Burgos v City of New York, 294 AD2d 177, 178 [1st Dept 2002]).

R. A. Klass
Your Court Street Lawyer

Next post
Previous post