THE SCOPE OF REPRESENTATION AND LEGAL MALPRACTICE

Ressler v. FARRELL FRITZ, PC, 2022 NY Slip Op 31706 - NY Co. Supreme Court 2022:

"...Legal malpractice concerns whether an attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession" (AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]). A cause of action for legal malpractice requires the plaintiff to plead and prove the attorney's negligence, that the attorney's negligence was the proximate cause of plaintiff's damages, and actual damages (Federal Ins. Co. v North Am. Specialty Ins. Co., 47 AD3d 52, 59 [1st Dept 2007]). To establish proximate cause, the "plaintiff must demonstrate that `but for' the attorney's negligence, plaintiff would either have prevailed in the matter at issue, or would not have sustained any `ascertainable damages' (Leder v Spiegel, 31 AD3d 266, 268 [1st Dept 2006], affd 9 NY3d 836 [2007], cent denied sub nom. Spiegel v Rowland, 522 US 1257 [2008] [citations omitted]).

It is well settled that "[a]n attorney may not be held liable for failing to act outside the scope of the retainer" (Genesis Merchant Partners, L.P. v Gilbride, Tusa, Last & Spellane, LLC, 157 AD3d 479, 482 [1st Dept 2018], citing Ambase Corp. v Davis Polk & Wardell, 8 NY3d 428 [2007]). Here, plaintiffs have not dispelled all questions of material fact as to whether they had engaged defendants to monitor DART for changes to the four tidal wetlands permits issued to Village People and to commence Article 78 proceedings challenging potential modifications to those permits. In defining the scope of defendants' representation, the Engagement Letter states that "[Farrell Fritz] will represent you in connection with the commencement of an action against Village People LLC, and its principal, John Zaccaro, Jr. asserting possible adverse possession and other claims relating to real property located at Pennant Walk" (NYSCEF Doc No. 39 at 1). The letter further states that defendants shall provide legal services "in connection with potential litigation involving title to real property located in Saltaire" (id.). While the phrase "and other claims" is ambiguous, the Engagement Letter does not mention the DEC, the permits issued to Village People or the commencement of any proceeding to challenge future modifications or amendments to those permits. Further, the DEC issued the permits to Village People in 2017, and the time within which to challenge that determination expired long before plaintiffs executed the Engagement Letter. Plaintiffs have not shown whether the Engagement Letter was ever modified to expand the scope of defendants' obligations to include continually monitoring the four permits issued to Village People and authorizing defendants to commence legal proceedings if DEC were to modify those permits. Given plaintiffs' failure to meet their prima facie burden, the branch of the motion seeking partial summary judgment on the issue of defendants' negligence is denied without regard to the sufficiency of defendants' opposition."

MALPRACTICE AND THE AFC

LoPresti v. Galchus, Date filed: 2022-03-31, Court: Supreme Court, Queens, Judge: Justice Carmen Velasquez, Case Number: 717561/20:

"Upon the foregoing papers it is ordered that this motion by the defendant and cross motion by the plaintiff are decided as follows: This is a legal malpractice action against the defendant, the court appointed attorney for the minor child in a custody proceeding. On April 25, 2018, the plaintiff commenced a proceeding in Family Court, Queens County, to modify a custody agreement she had with her ex-husband, Philip LoPresti, regarding their minor child, Sofia LoPresti. Plaintiff sought to relocate with the child to New Orleans. Philip LoPresti opposed the Family Court petition and also executed his own petition in which he sought to be awarded primary residential/physical custody of Sofia. In May 2018, defendant was assigned by the Family Court as the Attorney for the child, Sofia. At the Family Court hearing, defendant stated that it was the child’s preference to relocate with the plaintiff to New Orleans.

A trial was held before a Referee in Family Court on July 18-19, 2020. A reporter was not present but the proceeding was transcribed via an audiotape made of the trial. Defendant maintains that the recording failed to provide an accurate and audible transcription. On July 24, 2018, the court ruled that LoPresti was to be given residential custody of Sofia. Plaintiff filed a Notice of Appeal, but a different attorney represented Sofia for the appeal, but the defendant continued to represent Sofia in Family Court. On October 2, 2019, the Appellate Division, Second Department, remitted the matter to Family Court for a new hearing before a different Referee. The Appellate Division found that defendant, inter alia, did not properly advocate for the interests of Sofia. The parties thereafter entered into a stipulation allowing Sofia to relocate to New Orleans with her mother until July 2020.

Plaintiff commenced the instant action to recover damages for legal malpractice as well as punitive damages. The complaint alleges that the defendant failed to fulfill his obligations as a court appointed attorney for Sofia. Specifically, the complaint alleges that defendant failed to zealously advocate for Sofia, failed to inform the court of her position on relocation and failed to assist Sofia in articulating her position to the court. The complaint further alleges that but for defendant’s negligence and failure to advocate for his client, custody never would have been transferred to Lopresti. Defendant now moves to dismiss the complaint pursuant to CPLR 3211(a). Defendant contends that plaintiff lacks standing to bring this action since, as a law guardian, he is shielded by quasi-judicial immunity. Plaintiff cross moves for summary judgment.

The role of the Law Guardian or Attorney appointed by the Family Court is to represent the wishes of the child and to zealously advocate for the child’s best interest. (Carballeira v. Shumway, 273 AD2d 753, 755 [3d Dept 2000]; Matter of Dewey S., 175 AD2d 920, 921 [2d Dept 1991]; B.A. v. L.A., 196 Misc 2d 86, 96 [Fam Ct, Rockland County 2003].) The role is also to aid the court in arriving at an appropriate disposition. (Matter of Apel, 96 Misc 2d 839, 842-843 [Fam Ct, Ulster County 1978].)

The plaintiff herein lacks standing to bring this action against the defendant, the Law Guardian. There is no privity between the plaintiff and the defendant. (see Bluntt v. O’Connor, 291 AD2d 106, 114 [4th Dept 2002].) Indeed, the defendant was appointed to assist the child in presenting her views and her wishes. He was not representing the plaintiff in any capacity, and no attorney-client relationship existed between them. As such, the defendant is entitled to quasi-judicial immunity.

Although the court is aware of the October 2, 2019 Appellate Division decision stating that the defendant did not advocate for the position of the child herein, the court cannot use this as a basis to allow the plaintiff to maintain a malpractice action against the defendant. To allow a malpractice lawsuit against the defendant in these types of circumstances would discourage attorneys from serving as court appointed counsel. (see Bluntt v. O’Connor, 291 AD2d at 118-119.) As noted by the Supreme Court of Wisconsin, without the assistance and impartial judgment of a guardian ad item, the “court would have no practical or effective means to assure itself that all of the essential facts have been presented untainted by the self-interest of the parents and children.” (Paige K.B. v. Molepske, 219 Wis 2d 418, 434, 580 NW2d 289 [Sup Ct, Wisconsin 1998].) Moreover, the court wisely noted that immunity in these situations is necessary “to avoid the harassment and intimidation that could be brought to bear on GALs by those parents and children who may take issue with any or all of the GAL’s actions or recommendations.” (Paige K.B. v. Molepske, 219 Wis 2d at 434.)

Other courts have taken similar positions. One court has stated that “[f]ear of liability to one of the parents can warp judgment that is crucial to vigilant loyalty for what is best for the child; the guardian’s focus must not be diverted to appeasement of antagonistic parents.” (Ward v. San Diego County Dept. of Social Servs., 691 F Supp 238, 240 [SD Ca 1988].) Further, court-appointed experts, “faced with the threat of personal liability, will be less likely to offer the disinterested objective opinion that the court seeks.” (Winchester v. Little, 996 SW2d 818, 827 [Sup Ct, Tenn 1999].) Moreover, “[a] failure to grant immunity would hamper the duties of a guardian ad litem in his role as advocate for the child in judicial proceedings.” (Kurzawa v. Mueller, 732 F2d 1456, 1458 [6th Cir 1984].) Many of these cases are based on the holding of the Supreme Court that “the common law provided absolute immunity from subsequent damages liability for all persons — governmental or otherwise — who were integral parts of the judicial process.” (Briscoe v. LaHue, 460 US 325, 335 [1983].)

This court agrees with these opinions and finds that permitting a malpractice case to proceed against the defendant herein would go against public policy. It would subject these attorneys to possible unnecessary litigation for performing an extremely important function for the court.

Accordingly, this motion by defendant to dismiss the complaint is granted, and the action is dismissed."

PET DEEMED TO BE PROPERTY FOR MALPRACTICE CLAIM

Plaintiffs commenced this action alleging that the Defendants breached the appropriate standards of veterinary care in the treatment of their cat and sought to recover compensatory damages incurred for the treatment in the sum of $15, 262.22 plus $10,000.00 for the time and lost wages suffered by the plaintiffs, plus, $10,000.00 for conscious pain and suffering experienced by the cat, along with $5,000.00 representing the fair market value of the cat and punitive damages in the amount of $250,000.00.

Ritter v. BLUEPEARL OPERATIONS LLC, 2021 NY Slip Op 30341 - NY: Supreme Court February 5, 2021:

"Defendants' motion is granted in its entirety. Specifically, Plaintiff's Sixth Cause of Action for intentional infliction of emotional distress is dismissed because in New York there is no cause of action for emotional distress damages as result of negligent care and treatment rendered to one's animal, which is considered to be property. Jason v Parks, 224 AD2d 494 (2d Dept 1996)".

ISSUES WITH FORECLOSURE RESCUE FIRM

Ramirez v Donado Law Firm, P.C., 2019 NY Slip Op 01244, Decided on February 20, 2019, Appellate Division, Second Department:

"The plaintiffs allegedly were the victims of a foreclosure rescue scam perpetrated by the defendants Donado Law Firm, P.C. (hereinafter Donado Law), Valmiro Donado, and Roberto Pagan-Lopez (hereinafter collectively the defendants), among others. The plaintiffs commenced this action alleging, inter alia, violations of Real Property Law § 265-b and General Business Law § 349, as well as fraud, fraudulent inducement, fraudulent misrepresentation, breach of contract, and legal malpractice. The defendants moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them. The Supreme Court, inter alia, denied the motion, and the defendants appeal.

A party may move for judgment dismissing one or more causes of action on the ground that the pleading fails to state a cause of action (see CPLR 3211[a][7]). On a motion to dismiss pursuant to CPLR 3211(a)(7), the pleading must be afforded a liberal construction and the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87-88; see Stone v Bloomberg L.P., 163 AD3d 1028; Rodriguez v Daily News, L.P., 142 AD3d 1062, 1063). "Where evidentiary material is submitted and considered, and the motion is not converted into a motion 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 it cannot be said that a significant dispute exists regarding it, dismissal should not eventuate" (Stone v Bloomberg L.P., 163 AD3d at 1030; see Guggenheimer v Ginzburg, 43 NY2d [*2]268, 275; Rodriguez v Daily News, L.P., 142 AD3d at 1063).

Real Property Law § 265-b governs the conduct of distressed property consultants. "Distressed property consultant" or "consultant" is defined as "an individual or a corporation, partnership, limited liability company or other business entity that, directly or indirectly, solicits or undertakes employment to provide consulting services to a homeowner for compensation or promise of compensation with respect to a distressed home loan or a potential loss of the home for nonpayment of taxes" (Real Property Law § 265-b[1][e]). A consultant does not include, inter alia, "an attorney admitted to practice in the state of New York when the attorney is directly providing consulting services to a homeowner in the course of his or her regular legal practice" (Real Property Law § 265-b(1)(e)[i]). Here, contrary to the defendants' contention, the plaintiffs adequately alleged facts from which it could be inferred that the defendants did not provide consulting services to the plaintiffs in the course of Donado Law's regular legal practice (see De Guaman v American Hope Group, 163 AD3d 915). Accordingly, we agree with the Supreme Court's denial of that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging a violation of Real Property Law § 265-b insofar as asserted against them.

General Business Law § 349(a) prohibits "[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state." A cause of action to recover damages for a violation of General Business Law § 349 must "identify consumer-oriented misconduct which is deceptive and materially misleading to a reasonable consumer, and which causes actual damages" (Wilner v Allstate Ins. Co., 71 AD3d 155, 161-162; see Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 25). Private contract disputes, unique to the parties, do not fall within the ambit of General Business Law § 349 (see Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d at 25; De Guaman v American Hope Group, 163 AD3d at 917). Here, contrary to the defendants' contention, "in contrast to a private contract dispute, the practices alleged by the plaintiffs were not unique to these parties and involved an extensive marketing scheme that had a broader impact on consumers at large" (De Guaman v American Hope Group, 163 AD3d at 917 [citations and internal quotation marks omitted]; see Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330, 344; Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d at 25). Accordingly, we agree with the Supreme Court's denial of that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging a violation of General Business Law § 349 insofar as asserted against them.

"Where a cause of action or defense is based upon misrepresentation, fraud, mistake, wilful default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail" (CPLR 3016[b]). However, the requirements of CPLR 3016(b) " may be met when the facts are sufficient to permit a reasonable inference of the alleged conduct'" (Sargiss v Magarelli, 12 NY3d 527, 531, quoting Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 492). Here, contrary to the defendants' contention, the complaint pleaded causes of action sounding in fraud, fraudulent inducement, and fraudulent misrepresentation with sufficient particularity (see CPLR 3016; Sargiss v Magarelli, 12 NY3d at 531; Pludeman v Northern Leasing Sys., Inc., 10 NY3d at 492; De Guaman v American Hope Group, 163 AD3d at 917). Moreover, contrary to the defendants' contention, the causes of action sounding in fraud, fraudulent inducement, and fraudulent misrepresentation were not duplicative of the breach of contract cause of action (see De Guaman v American Hope Group, 163 AD3d at 917; see also Neckles Bldrs., Inc. v Turner, 117 AD3d 923, 925). Accordingly, we agree with the Supreme Court's denial of that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the causes of action sounding in fraud, fraudulent inducement, and fraudulent misrepresentation insofar as asserted against them.

"To recover damages for breach of contract, plaintiffs must demonstrate the existence of a contract, [their] performance pursuant to that contract, the defendants' breach of their obligations pursuant to the contract, and damages resulting from that breach'" (De Guaman v American Hope Group, 163 AD3d at 917, quoting Elisa Dreier Reporting Corp. v Global NAPs Networks, Inc., 84 AD3d 122, 127). Here, contrary to the defendants' contention, the plaintiffs sufficiently pleaded a cause of action alleging breach of contract (see De Guaman v American Hope [*3]Group, 163 AD3d at 917). Accordingly, we agree with the Supreme Court's denial of that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action sounding in breach of contract insofar as asserted against them.

To recover damages for legal malpractice, a plaintiff must establish "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" (Dombrowski v Bulson, 19 NY3d 347, 350 [internal quotation marks omitted]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; Dempster v Liotti, 86 AD3d 169, 176). "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 NY3d at 442; see Garcia v Polsky, Shouldice & Rosen, P.C., 161 AD3d 828, 830; Kliger-Weiss Infosystems, Inc. v Ruskin Moscou Faltischek, P.C., 159 AD3d 683, 684). Here, contrary to the defendants' contention, the complaint sufficiently pleaded a cause of action to recover damages for legal malpractice (see Garcia v Polsky, Shouldice & Rosen, P.C., 161 AD3d at 830; Hershco v Gordon & Gordon, 155 AD3d 1007, 1009). Accordingly, we agree with the Supreme Court's denial of that branch of the defendants' motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action sounding in legal malpractice insofar as asserted against them."