Statute of limitations tolled by reason of disability or insanity?

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
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Sanctions against attorneys for failing to notify the court that an appeal has been withdrawn

The Appellate Division made a decision regarding the request for sanctions against attorneys for failing to notify the court that an appeal has been withdrawn as moot. The court reminded counsel of the obligation to monitor the status of cases and keep the Appellate Division informed of developments in cases that may affect a pending appeal. In Guo-Bang Chen v Caesar and Napoli, P.C., 179 AD3d 46, 49-52 [2d Dept 2019], the court held:

This subdivision, by its plain language, imposes a continuing obligation on counsel to monitor the status of the case and to apprise the Appellate Division of certain developments that might affect a pending appeal (see 22 NYCRR 1250.2[c] ). Although, pursuant to this section, only one attorney needs to notify the Court of the relevant developments, all of the attorneys are independently responsible for ensuring that a timely notification actually takes place (see 22 NYCRR 1250.2[c] ). Where, as here, a timely notification is not given by any of the attorneys, they may each be held independently responsible and, absent a showing of good cause for the failure to ensure a timely notification, sanctioned for their respective conduct (see id.Bank of N.Y. Mellon v. Smith, 176 A.D.3d 83, 108 N.Y.S.3d 193).

Here, the record demonstrates that the underlying action was settled on March 1, 2019, as confirmed in an email exchange between the Fixler firm, representing the appellants, and the Sim firm, representing the respondent. In one of those emails, an attorney from the Sim firm expressed his understanding that the Fixler firm would, among other things, withdraw the appeal pending in this Court. By email of March 5, 2019, to the Sim firm, an attorney with the Fixler firm stated that he would advise the appellants and their appellate counsel of the settlement and direct them to withdraw the appeal. However, the Fixler firm did not advise the appellants’ appellate counsel, the Mischel firm, of the settlement until March 26, 2019, at 4:55 p.m.

The Mischel firm, relying at the time exclusively upon its appellate printer for notification of the calendaring of the appeal, was unaware, on March 26, 2019, when notice of the settlement of the action was received, that the appeal had actually been calendared. The appellate printer concedes that, due to an error in entering information into its computerized court calendar tracking system, it failed to notify the Mischel firm that the appeal had been calendared. The appellate printer represents that this was the first time such an error had occurred in relation to the multitude of cases it has worked on with the Mischel firm since 1999. The Mischel firm likewise represents that this was the first time it had missed a calendar date in two decades of appellate practice.

Acting on the erroneous assumption that the appeal had not yet been calendared, the Mischel firm mailed a letter to this Court on Tuesday, April 2, 2019, advising this Court of the settlement and requesting withdrawal of the appeal. By letter dated April 9, 2019, this Court advised counsel that, because the appeal had already been on the calendar, a stipulation withdrawing the appeal and the approval of this Court would be required (see 22 NYCRR 670.2[a][3] ).

When counsel in the underlying action reached a settlement on March 1, 2019, the settlement triggered their mutual obligations to “immediately notify” this Court (22 NYCRR 1250.2[c] ). However, neither the Fixler firm nor the Sim firm ever notified this Court.

The Fixler firm, in its capacity as the appellants’ trial counsel during the pendency of this appeal, had a continuing obligation either to advise this Court directly of the settlement or to ensure that its clients’ appellate counsel, the Mischel firm, advised this Court of the settlement. It is undisputed that, on the very day of the settlement, the Sim firm expressed its understanding that the Fixler firm would take responsibility for securing the withdrawal of the appeal. Within a few days, the Fixler firm confirmed that it would notify its clients’ appellate counsel of the settlement. However, despite this representation, the Fixler firm did not notify the Mischel firm of the settlement until three weeks later.

The Fixler firm asserts that it filed a stipulation of discontinuance with the Supreme Court, on March 29, 2019, after the settlement funds had cleared, and that this Court was notified of the settlement within two business days thereafter. The Fixler firm’s contention that it could await the clearance of the settlement payment and the finalization of other paperwork before notifying this Court of the settlement is unavailing for several reasons.

We note that the Fixler firm committed in its March 5, 2019, email to notify the appellants’ appellate counsel without expressing an intent to delay notification for any period of time or for any reason. More important, 22 NYCRR 1250.2(c) of the statewide Practice Rules of the Appellate Division requires that this Court be notified “immediately” when there has been a settlement of the matter. One of the primary purposes of section 1250.2(c) is to protect the Appellate Courts from spending time reviewing and analyzing matters that have been rendered academic (see Bank of N.Y. Mellon v. Smith, 176 A.D.3d 83, 108 N.Y.S.3d 193). Delayed notification defeats that purpose; providing notification benefits the Court, the Bar, and the public generally by enabling the Court to suspend its review of an appeal that will become academic. There is no adverse impact to the parties and counsel on such an appeal as consideration of the appeal may be readily resumed should the settlement not be implemented.

Precisely in order to alert counsel that their obligation to give immediate notification of a settlement may not be postponed or delayed, this Court adopted its own local rule of practice which states that, for purposes of 22 NYCRR 1250.2(c), settlement includes “any oral or written agreement or understanding which may, once memorialized, render a determination of the cause unnecessary” (22 NYCRR 670.2[b] ). This local rule took effect March 4, 2019, and is thus applicable to the case at hand.

In this case, members of this Court were caused to devote hours of preparation and deliberation on an appeal which, unbeknown to them, had been settled nearly one month earlier. Had this Court been timely advised of the settlement in this case, it could have avoided wasting judicial resources on a settled case and could have redirected those resources to one of the many actual controversies that fill its docket. Since the Fixler firm had an independent obligation to give this Court notice of the settlement and assured the Sim Firm that, as between the attorneys, the Fixler firm would assume responsibility for notification, the imposition of sanctions upon the Fixler firm in the sum of $250 is warranted.

While the Sim firm had its own independent obligation to immediately notify this Court of the settlement, we conclude, under the circumstances, that the Sim firm reasonably relied upon the Fixler firm’s written commitment that the Fixler firm would discharge this obligation on behalf of all counsel. Also, while the Mischel firm did not notify this Court immediately of the settlement, it did act with sufficient promptness that, under the circumstances, renders the imposition of sanctions unwarranted. Accordingly, no sanctions are imposed as against the Sim firm and the Mischel firm.

R. A. Klass
Your Court Street Lawyer

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Brandeis Society hosts annual luncheon for Chanukah

Published in the Brooklyn Daily Eagle
December 18, 2019

by Rob Abruzzese

Men and women in business attire posing for photo. From left: Hon. Katherine Levine, Hon. Ellen Spodek, Richard Klass, Hon. Jeffrey Sunshine, Hon. Anne Swern, Hon. Miriam Cyrulnik, Doron Leiby, Jeffrey Miller and Hon. Esther Morgenstern. Photo by Rob Abruzzese.
From left: Hon. Katherine Levine, Hon. Ellen Spodek, Richard Klass, Hon. Jeffrey Sunshine, Hon. Anne Swern, Hon. Miriam Cyrulnik, Doron Leiby, Jeffrey Miller and Hon. Esther Morgenstern. Photo by Rob Abruzzese.

“The Brooklyn Brandeis Society held its annual Chanukah luncheon and membership party in Brooklyn Heights on Monday as members gathered together to share latkes and donuts while a pair of rabbis shared stories of their common history….

Two men in business attire, posing for photo. Todd Sandler, director of the Brooklyn Jewish National Fund, on left, and Richard Klass on the right. Photo by Rob Abruzzese.
Todd Sandler, director of the Brooklyn Jewish National Fund, on left, and Richard Klass on the right. Photo by Rob Abruzzese.

R. A. Klass
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Client may claim that the statute of limitations for legal malpractice has not been triggered

It is important for an attorney to withdraw from an action once the attorney has terminated the attorney-client relationship. If not, then the client may claim that the statute of limitations for legal malpractice has not been triggered, as decided in Courtney v McDonald, 176 AD3d 645 [1st Dept 2019]:

Scales of justice illustrating article about legal malpractice.

The first cause of action in plaintiffs’ complaint alleges legal malpractice with respect to defendants representation of plaintiffs in two underlying actions—the 304 W 18th Street matter and the 175 W 12th Street matter. Contrary to defendants’ argument, the malpractice cause of action with respect to the 175 W 12th Street matter is not time-barred by the three-year statute of limitations applicable to legal malpractice claims (CPLR 214 [6]). Defendants failed to demonstrate that the attorney-client relationship ceased to exist within three years of August 28, 2017, the date plaintiffs filed this action. Although defendants sent a letter, dated August 7, 2014, unilaterally terminating their representation of plaintiffs, they failed to move to withdraw from representation in the foreclosure action (see CPLR 321 [b]) until more than a year after sending the subject letter. Accordingly, to the extent plaintiffs’ first cause of action concerns alleged legal malpractice by defendants in their representation of plaintiffs in the matter concerning 175 W 12th Street, the motion to dismiss that cause of action was properly denied.

R. A. Klass
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Legal malpractice action dismissed based upon doctrines of res judicata and collateral estoppel

The Appellate Division, in Kleinman v Weisman Law Group, P.C., 176 AD3d 1046 [2d Dept 2019], dismissed a former client’s legal malpractice action based upon the doctrines of res judicata and collateral estoppel. The court stated as follows:

In 2013, the defendant Weisman Law Group, P.C. (hereinafter the defendant firm), commenced an action against the plaintiff to recover unpaid legal fees in the Nassau County District Court. The plaintiff asserted a counterclaim, alleging that he was overbilled by the defendant firm. A judgment was entered in favor of the defendant firm and against the plaintiff. The plaintiff appealed the judgment of the Nassau County District Court to the Appellate Term of the Supreme Court for the Ninth and Tenth Judicial Districts, which affirmed the judgment (see Weisman Law Group, P.C. v. Kleinman, 60 Misc.3d 133[A], 2018 N.Y. Slip Op. 51042[U], 2018 WL 3309514 [App Term, 2d Dept, 9th & 10th Jud Dists 2018] ). In 2016, the plaintiff commenced the instant action against the defendants asserting causes of action alleging, inter alia, breach of contract and legal malpractice.

Scales of justice illustrating article about legal malpractice.

The plaintiff contends that the doctrines of res judicata and collateral estoppel do not apply in the instant case, as the Nassau County District Court lacked subject matter jurisdiction over his counterclaim in the prior action. Contrary to the plaintiff’s contention, the Nassau County District Court did have jurisdiction over his counterclaim pursuant to Uniform District Court Act Section 208(b), as the counterclaim was for money only. The doctrine of res judicata precludes the plaintiff from litigating the claims set forth in his complaint, as a judgment on the merits exists in the prior action between the same parties involving the same subject matter (see Matter of Josey v. Goord, 9 N.Y.3d 386, 389, 849 N.Y.S.2d 497, 880 N.E.2d 18; Matter of Hunter, 4 N.Y.3d 260, 269, 794 N.Y.S.2d 286, 827 N.E.2d 269). New York has adopted the transactional analysis approach to res judicata, so that once a claim is brought to a final conclusion, all other claims between the same parties or those in privity with them arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy (see Matter of Josey v. Goord, 9 N.Y.3d at 389–390, 849 N.Y.S.2d 497, 880 N.E.2d 18; Matter of Hunter, 4 N.Y.3d at 269, 794 N.Y.S.2d 286, 827 N.E.2d 269; *124 O’Brien v. City of Syracuse, 54 N.Y.2d 353, 357, 445 N.Y.S.2d 687, 429 N.E.2d 1158; Greenstone/Fontana Corp. v. Feldstein, 72 A.D.3d 890, 893, 901 N.Y.S.2d 643).

Furthermore, the plaintiff’s causes of action are barred by the doctrine of collateral estoppel, which precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same (see Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 467 N.E.2d 487; Williams v. New York City Tr. Auth., 171 A.D.3d 990, 97 N.Y.S.3d 692). The doctrine of collateral estoppel applies here, as the issues in both actions are identical, the issue in the prior action was actually litigated and decided, there was a full and fair opportunity to litigate the action, the issue previously litigated was necessary to support a valid and final judgment on the merits, and the defendant Rachel J. Weisman was in privity with the defendant firm (see Conason v. Megan Holding, LLC, 25 N.Y.3d 1, 17, 6 N.Y.S.3d 206, 29 N.E.3d 215; Williams v. New York City Tr. Auth., 171 A.D.3d at 991–992, 97 N.Y.S.3d 692; Karimian v. Time Equities, Inc., 164 A.D.3d 486, 83 N.Y.S.3d 227).

R. A. Klass
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