Richard A. Klass Inducted as President of the Brooklyn Bar Association, June 13, 2022

INDUCTION OF NEWLY ELECTED OFFICERS AND TRUSTEES OF THE BROOKLYN BAR ASSOCIATION ON MONDAY, JUNE 13, 2022

 

PROGRAM

 

WELCOME

Hemalee Patel, Esq.
Master of Ceremonies
General Counsel at NYC Board of Elections

 

NATIONAL ANTHEM

Hon. Claudia Daniels-DePeyster
Kings County Criminal Court

 

INTRODUCTORY REMARKS

Hon. Barry Kamins
Past President
Brooklyn Bar Association

 

REMARKS

Steven D. Cohn, Esq.
Past President
Goldberg & Cohn

Sophia A. Klass
Daughter

Stefano A. Filippazzo, Esq.
Retired Trustee
Law Office of Stefano A. Filippazzo, PC

Howard I. Elman, Esq.
Elman Freiberg PLLC.

 

INDUCTION

By
Hon. Lawrence Knipel
Administrative Judge, Kings County Supreme Court, Civil Term

 

CLASS OF 2025

Dean Delianites
Martin Edelman
Michael Farkas
Gregory LaSpina
Natoya McGhie
Margherita Racanelli
Scott Rynecki

 

OFFICERS

Joseph S. Rosato, President Elect
Anthony W. Vaughn, Jr., First Vice President
Christina M. Golkin, Second Vice President
Daniel R. Antonelli, Secretary
Angélicque M. Moreno, Treasurer

 

PRESIDENT

Richard A. Klass

 

CLOSING REMARKS

Richard A. Klass
President

 


Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #Brooklyn #law #nationalanthem

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.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

© 2022 Richard A. Klass

Scales of justice

An attorney may not be held liable for failing to act outside the scope of a retainer

In Natl. Air Cargo, Inc. v Jenner & Block, LLP, 203 AD3d 1655 [4th Dept 2022], the court dismissed the legal malpractice action based on the following basis:

A motion to dismiss a complaint based on documentary evidence “may be appropriately granted only where the documentary evidence utterly refutes [the] 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 [2002]). In support of its motion, HSE submitted the engagement letter between HSE and NAC. “An 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, 1028, 93 N.Y.S.3d 353 [2d Dept. 2019]; see AmBase Corp. v. Davis Polk & Wardwell, 8 N.Y.3d 428, 435, 834 N.Y.S.2d 705, 866 N.E.2d 1033 [2007]). Here, HSE met its burden of establishing by documentary evidence that the scope of its legal representation did not include a review of the insurance policies for possible coverage of the judgment in the underlying action. The engagement letter stated that HSE’s engagement did “not include responsibility either for review of [NAC’s] insurance policies to determine the possibility of coverage for any … claims that have [been] or may be asserted against [NAC] or for notification of [NAC’s] insurance carriers concerning the matter.” Because review of NAC’s liability insurance policies to determine their potential applicability to the judgment in the underlying action fell outside the scope of HSE’s engagement, the court properly granted HSE’s motion with respect to the professional negligence/legal malpractice cause of action against HSE insofar as asserted by NAC (see Turner v. Irving Finkelstein & Meirowitz, LLP, 61 A.D.3d 849, 850, 879 N.Y.S.2d 145 [2d Dept. 2009]).

 


Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #legalmalpractice #retainer 

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.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

© 2022 Richard A. Klass

Scales of justice

Court reiterated the rule regarding the continuous representation doctrine.

In Tulino v Hiller, P.C., 202 AD3d 1132, 1135 [2d Dept 2022], the court reiterated the rule regarding the continuous representation doctrine, holding:

The statute of limitations for a cause of action to recover damages for legal malpractice is three years (see CPLR 214[6]; DeStaso v. Condon Resnick, LLP, 90 A.D.3d 809, 812, 936 N.Y.S.2d 51), which accrues at the time the malpractice is committed (see Shumsky v. Eisenstein, 96 N.Y.2d 164, 166, 726 N.Y.S.2d 365, 750 N.E.2d 67; Stein Indus., Inc. v. Certilman Balin Adler & Hyman, LLP, 149 A.D.3d 788, 789, 51 N.Y.S.3d 183). “ ‘However, pursuant to the doctrine of continuous representation, the time within which to sue on the claim is tolled until the attorney’s continuing representation of the client with regard to the particular matter terminates’ ” (Stein Indus., Inc. v. Certilman Balin Adler & Hyman, LLP, 149 A.D.3d at 789, 51 N.Y.S.3d 183, quoting Aqua–Trol Corp. v. Wilentz, Goldman & Spitzer, P.A., 144 A.D.3d 956, 957, 42 N.Y.S.3d 56). “ ‘For the doctrine to apply, there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney’ ” (Tantleff v. Kestenbaum & Mark, 131 A.D.3d 955, 956, 15 N.Y.S.3d 840, quoting Beroza v. Sallah Law Firm, P.C., 126 A.D.3d 742, 743, 5 N.Y.S.3d 297).

 


Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #legalmalpractice #continuous-representation 

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.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

© 2022 Richard A. Klass

Scales of justice

The court retains the discretion to accept late opposition papers.

In Wilson v Tully Rinckey PLLC, 200 AD3d 1466 [3d Dept 2021], the court first addressed the issue as to the court’s discretion to accept late opposition papers on a motion. The court held: 

Defendant contends that Supreme Court erred in permitting plaintiff to submit late opposition papers to the motion. We disagree. The court retains the discretion to accept late opposition papers upon a showing of a valid excuse (see Wilcox v. Newark Val. Cent. Sch. Dist., 107 A.D.3d 1127, 1130, 967 N.Y.S.2d 432 [2013]; see generally CPLR 2004). As the court noted, plaintiff explained that the delay in submitting timely opposition was due to serious medical and health reasons of plaintiff’s counsel. Also taking into account the lack of prejudice to defendant, the fact that defendant was given the opportunity to submit a reply (see Heath v. Normile, 131 A.D.3d 754, 756, 15 N.Y.S.3d 509 [2015]) and the policy of resolving cases on the merits (see Associates First Capital v. Crabill, 51 A.D.3d 1186, 1188, 857 N.Y.S.2d 799 [2008], lv denied 11 N.Y.3d 702, 864 N.Y.S.2d 389, 894 N.E.2d 653 [2008]), the court providently exercised its discretion in accepting plaintiff’s late opposition (see Matter of Burkich, 12 A.D.3d 755, 756, 785 N.Y.S.2d 137 [2004]; Whiteford v. Smith, 168 A.D.2d 885, 885, 564 N.Y.S.2d 806 [1990]).


Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #legalmalpractice #late

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.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

© 2022 Richard A. Klass

Scales of justice

Account stated cause of action was partially granted in the attorney’s favor.

In Michael B. Shulman & Assoc., P.C. v Canzona, 201 AD3d 716, 717-18 [2d Dept 2022], the court determined that an account stated cause of action was partially granted in the attorney’s favor. The court held:

” ‘An account stated is an agreement between parties, based upon their prior transactions, with respect to the correctness of the account items and the specific balance due’ ” (Bank of Am., N.A. v Ball, 188 AD3d 974, 974 [2020], quoting Citibank [South Dakota], N.A. v Abraham, 138 AD3d 1053, 1056 [2016]). “Although an account stated may be based on an express agreement between the parties as to the amount due, an agreement may be implied where a defendant retains bills without objecting to them within a reasonable period of time, or makes partial payment on the account” (Citibank [South Dakota], N.A. v Abraham, 138 AD3d at 1056).

Here, the plaintiff established, prima facie, that, with the exception of the final invoice, dated March 10, 2014, the defendant received the invoices and made partial payments (see Stardom Brands, LLC v S.K.I. Wholesale Beer Corp., 172 AD3d 1266, 1268 [2019]; Lavalle v Coholan Family, LLC, 167 AD3d 1444, 1444 [2018]). As to the March 10, 2014 invoice, however, the record establishes that defendant promptly objected in writing and withheld payment.

In opposition, the defendant asserted that he made certain payments based only on the plaintiff’s threats that work on the case would cease if he did not, corroborated by copies of written messages sent to the defendant by the plaintiff in September 2013. In addition, the defendant testified regarding specific oral objections he made to the invoice dated August 2, 2013, during a phone call with the plaintiff. This evidence was sufficient to raise a triable issue of fact as to whether the defendant’s September 2013 payments constituted an agreement to pay the balance stated in the August 2, 2013 invoice (see Wand, Powers & Goody, LLP v Yuliano, 144 AD3d 1017, 1018 [2016]; Boies, Schiller & Flexner LLP v Modell, 129 AD3d 533, 534 [2015]; Elmo Mfg. Corp. v American Innovations, Inc., 44 AD3d 703, 704 [2007]; 1000 N. of N.Y. Co. v Great Neck Med. Assoc., 7 AD3d 592, 593 [2004]). Accordingly, the Supreme Court properly denied that branch of the plaintiff’s motion which was for summary judgment on the second cause of action insofar as it related to the invoice dated March 10, 2014, on the ground that the plaintiff failed to meet its prima facie burden, and insofar as it related to the invoice dated August 2, 2013, on the ground that the defendant raised a triable issue of fact. However, the court have should awarded the plaintiff summary judgment on the second cause of action insofar as it related to the remaining invoices (see Fross, Zelnick, Lehrman & Zissu, P.C. v Geer, 120 AD3d 1157 [2014]).


Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #legalmalpractice #accountstated

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.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

© 2022 Richard A. Klass

Scales of justice

“Damages in a legal malpractice case are designed to make the injured client whole…”

In I.M.P. Plumbing & Heating Corp. v Munzer & Saunders, LLP, 199 AD3d 569 [1st Dept 2021], the court dealt with the issue of damages in a legal malpractice action, holding:

Defendants’ failure to interpose answers on behalf of plaintiffs in the A.M. Concrete Action and the A.M. Concrete Proceeding or to seek an extension of time to answer constitutes a breach of the standard of professional care (Shapiro v. Butler, 273 A.D.2d 657, 658, 709 N.Y.S.2d 687 [3d Dept. 2000]). Plaintiffs may seek to recover from defendants any legal fees they paid to oppose the resulting contempt motion and to seek vacatur of the default judgment in the A.M. Concrete Proceeding, and to oppose the motion for a default judgment, seek vacatur of the default judgment, and appeal from the order granting a default judgment in the A.M. Concrete Action. In this connection we note that, “[d]amages in a legal malpractice case are designed to make the injured client whole” (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 omitted]). Therefore, a legal malpractice “plaintiff’s damages may include litigation expenses incurred in an attempt to avoid, minimize, or reduce the damage caused by the attorney’s wrongful conduct” (id.[internal quotation marks omitted]). Issues of fact exist as to the amounts, if any, that plaintiffs paid for the above noted services.

 


Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #legalmalpractice #damages

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.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

© 2022 Richard A. Klass

Scales of justice

Documents submitted by the defendants do not utterly refute the factual allegations.

In Singh v Pliskin, Rubano, Baum & Vitulli, 200 AD3d 927, 929 [2d Dept 2021]. The court denied the law firm’s motion to dismiss, holding:

The complaint, as augmented by the affidavit of Singh submitted in opposition to the defendants’ motion to dismiss, sufficiently stated a cause of action for legal malpractice (see CPLR 3211 [a] [7]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Doe v Ascend Charter Schs., 181 AD3d 648, 649-650 [2020]). Contrary to the defendants’ contention, at this preliminary stage of the litigation, they failed to conclusively demonstrate that the plaintiffs’ subsequent attorney had a sufficient opportunity to correct the defendants’ alleged negligence, such that they did not proximately cause any damages flowing from that negligence (see Gobindram v Ruskin Moscou Faltischek, P.C., 175 AD3d 586, 591 [2019]). The defendants also failed to demonstrate that their actions were protected by the attorney judgment rule (see generally Rosner v Paley, 65 NY2d 736, 738 [1985]; Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1505).

The documents submitted by the defendants do not utterly refute the factual allegations of the complaint and do not conclusively establish a defense to the plaintiffs’ legal malpractice claim as a matter of law (see CPLR 3211 [a] [1]; Cali v Maio, 189 AD3d 1337, 1338 [2020]; Gorunkati v Baker Sanders, LLC, 179 AD3d 904, 906 [2020]).

 


Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #legalmalpractice

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.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

© 2022 Richard A. Klass

Scales of justice

Plaintiff, who sued individually and in his capacity as a board member of a corporation, lacks standing

In Glaubach v Miller, 200 AD3d 414, 414-15 [1st Dept 2021], the court held that the Plaintiff, who sued individually and in his capacity as a board member of a corporation, lacks standing to commence this action.

The complaint, which asserts a single cause of action for legal malpractice, is premised on defendants’ allegedly deficient pleading of causes of action under Business Corporation Law Section 720. Any Business Corporation Law Section 720 causes of action, however, belonged to the corporation, not to plaintiff as an individual. Thus, only the corporation has standing to sue for legal malpractice arising from those causes of action (see Walker v Saftler, Saftler & Kirschner, 239 AD2d 252, 252 [1st Dept 1997]), and plaintiff does not dispute that he has failed to plead the pre-suit requirements necessary to sue derivatively on behalf of the corporation under Business Corporation Law Section 626 (see Griffith v Medical Quadrangle, 5 AD3d 151, 152 [1st Dept 2004]). Furthermore, plaintiff’s payment of legal fees does not confer standing on him (see Matter of Priest v Hennessy, 51 NY2d 62, 69-70 [1980]; Kalish v Lindsay, 47 AD3d 889, 891 [2d Dept 2008]).

 


Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #standing

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.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

© 2022 Richard A. Klass

Scales of justice

Legal malpractice context…continuous representation doctrine…generally limited to…a specific legal matter…

In Goodman v Weiss, Zarett, Brofman, Sonnenklar & Levy, P.C., 199 AD3d 659, 661-62 [2d Dept 2021], court affirmed the dismissal the client’s malpractice action as time-barred, holding:

The plaintiff contends that the defendant’s malpractice consisted of improperly negotiating his separation from his previous employer and his new employment contract with the hospitals. However, an action alleging legal malpractice must be commenced within three years from the date of accrual (see CPLR 214 [6]). A claim accrues when the malpractice is committed, not when the client discovers it (see Shumsky v Eisenstein, 96 NY2d 164, 166 [2001]). “Causes of action alleging legal malpractice which would otherwise be time-barred are timely if the doctrine of continuous representation applies” (DeStaso v Condon Resnick, LLP, 90 AD3d 809, 812 [2011]). “In the legal malpractice context, the continuous representation doctrine tolls the statute of limitations where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” (id. at 812). Application of the continuous representation doctrine is generally “limited to the course of representation concerning a specific legal matter . . . ; [t]he concern, of course, is whether there has been continuous [representation], and not merely a continuing relation” between the client and the lawyer (Shumsky v Eisenstein, 96 NY2d at 168 [internal quotation marks omitted]).

Contrary to the plaintiff’s contention, the legal malpractice cause of action at issue was time-barred under CPLR 214 (6), and the continuous representation doctrine did not toll the statute of limitations. That doctrine “tolls the running of the statute of limitations on a cause of action against a professional defendant only so long as the defendant continues to represent the plaintiff[s] in connection with the particular transaction which is the subject of the action and not merely during the continuation of a general professional relationship” (Maurice W. Pomfrey & Assoc., Ltd. v Hancock & Estabrook, LLP, 50 AD3d 1531, 1533 [2008] [internal quotation marks omitted]). Although the plaintiff alleges that the defendant continued to provide legal services to him between January 2011 and November 2013, he did not seek or obtain the defendant’s legal services at any time during that period and, when the plaintiff did subsequently engage the defendant’s legal services, that engagement was with regard to the performance of distinct services related to a different subject matter. Accordingly, the Supreme Court properly determined that the continuous representation toll was inapplicable and granted that branch of the defendant’s motion which was to dismiss the legal malpractice cause of action as time-barred.


Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #continuous-representation

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.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

© 2022 Richard A. Klass

Scales of justice

Court held that there were questions of fact regarding the continuous representation toll.

In Ray-Roseman v Lippes Mathias Wexler Friedman, LLP, 197 AD3d 944 [4th Dept 2021], the court held that there were questions of fact regarding the continuous representation toll of the statute of limitations, holding:

The statute of limitations for a legal malpractice claim is three years (see CPLR 214 [6]; McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714 [2002]). Here, plaintiffs correctly concede that defendants met their initial burden of establishing that the malpractice claim insofar as it related to the 2014 loan transaction was commenced beyond the three-year statute of limitations (see generally Rider v. Rainbow Mobile Home Park, LLP, 192 A.D.3d 1561, 1561-1562, 145 N.Y.S.3d 246 [4th Dept. 2021]; U.S. Bank N.A. v. Brown, 186 A.D.3d 1038, 1039, 130 N.Y.S.3d 146 [4th Dept. 2020]). Thus, the burden shifted to plaintiffs to raise a triable issue of fact whether “the statute of limitations was tolled or otherwise inapplicable, or whether … plaintiff[s] actually commenced the action within the applicable limitations period” (U.S. Bank N.A., 186 A.D.3d at 1039, 130 N.Y.S.3d 146 [internal quotation marks omitted]; see generally Rider, 192 A.D.3d at 1562, 145 N.Y.S.3d 246).

We conclude that plaintiffs, in opposition, raised a triable issue of fact whether the continuous representation doctrine applied to toll the statute of limitations with respect to the malpractice claim insofar as it related to the 2014 loan transaction (see generally Carbone v. Brenizer, 148 A.D.3d 1806, 1807, 50 N.Y.S.3d 783 [4th Dept. 2017]). The continuous representation doctrine tolls the limitations period “where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” (McCoy, 99 N.Y.2d at 306, 755 N.Y.S.2d 693, 785 N.E.2d 714), and “ ‘where the continuing representation pertains specifically to [that] matter’ ” (International Electron Devices [USA] LLC v. Menter, Rudin & Trivelpiece, P.C., 71 A.D.3d 1512, 1513, 898 N.Y.S.2d 388 [4th Dept. 2010], quoting Shumsky v. Eisenstein, 96 N.Y.2d 164, 168, 726 N.Y.S.2d 365, 750 N.E.2d 67 [2001]). Here, plaintiffs submitted communication between the Florida attorney and defendants in which the Florida attorney indicated that defendants’ role as New York counsel included “enforcement” of the 2014 loan transaction documents. Moreover, the 2014 loan transaction and the foreclosure proceedings were close in time, as evidenced by plaintiffs’ submission of defendants’ supplemental billing invoices for legal services, which demonstrated a representation from the loan transaction to the foreclosure proceeding without a break. Thus, we conclude that questions of fact exist regarding the extent of defendants’ representation of plaintiffs and, more specifically, whether “enforcement” of the loan documents contemplated a continued representation until the loan was paid in full and the transaction completed.


Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #legalmalpractice

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.comcreate new email with any questions.

Prior results do not guarantee a similar outcome.

© 2021 Richard A. Klass

Scales of justice