William Jacobs, et al., Plaintiffs-Appellants, v Richard L. Kay, et al., Defendants-Respondents.
3460, 117332/05
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
2008 NY Slip Op 3710;

April 24, 2008, Decided
April 24, 2008, Entered

 

“After settling with the executrix their objections to the probate of their father's will and trust, plaintiffs commenced this action against the attorneys for alleged fraudulent misrepresentation, fraudulent concealment, legal malpractice, breach of contract and for treble damages, in the preparation of those instruments. Not only does ^HN1New York not recognize a right of action for tortious interference with prospective inheritance (see Vogt v Witmeyer, 87 NY2d 998, 665 N.E.2d 189, 642 N.Y.S.2d 619 [1996]), but having earlier settled their objections, plaintiffs may not now seek, in effect, to challenge indirectly the validity of the will and trust by suing these defendants with whom they had absolutely no privity.

 Absent a contractual relationship between the professional and the party claiming injury, the potential for liability "is carefully circumscribed" (William Iselin & Co. v Mann Judd Landau, 71 NY2d 420, 425, 522 N.E.2d 21, 527 N.Y.S.2d 176 [1988]).  A viable tort claim against a professional requires that the underlying relationship between the parties be one of contract or the bond between them so close as to be the functional equivalent of contractual privity (Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 539 N.E.2d 91, 541 N.Y.S.2d 335 [1989]). However, plaintiffs have not pleaded any facts setting forth the existence of a contractual relationship or the functional equivalent thereof between themselves and defendants. Moreover, they have no viable cause of action for treble damages under Judiciary Law § 487, since defendants' purported deceit did not occur during the course of a pending judicial proceeding (see Costalas v Amalfitano, 305 AD2d 202, 203-204, 760 N.Y.S.2d 422 [2003].”

 

John Randolph Hearst, Jr., appellant, v Barbara Hearst, et al., respondents. (Index No. 06-01959)
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
2008 NY Slip Op 3590; 2008 N.Y. App. Div. LEXIS 3495
April 22, 2008, Decided

 

“The Supreme Court also improperly dismissed the cause of action alleging legal malpractice insofar as asserted against the Ackerman defendants. A prima facie case of legal malpractice requires proof that the attorney failed to exercise the ordinary and reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of that duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, 867 N.E.2d 385, 835 N.Y.S.2d 534; Bauza v Livington, 40 AD3d 791, 792-793, 836 N.Y.S.2d 645; Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562, 755 N.Y.S.2d 726). Here, the plaintiff alleges that Ackerman represented both Barbara and himself, and was thereby burdened by a conflict of interest, that Ackerman aided Barbara's misappropriation of his assets, and concealed these activities from him. Consequently, there are triable issues of fact with respect to the cause of action alleging legal malpractice (see Tabner v Drake, 9 AD3d 606, 610, 780 N.Y.S.2d 85), as well as the cause of action alleging the aiding and abetting of fraud, insofar as asserted against the Ackerman defendants.”

 

EDWARD H. ARNOLD, Plaintiff,

-against-

KPMG LLP, and SIDLEY AUSTIN BROWN & WOOD LLP, Defendants.

05 Civ. 7349 (PAC)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
2008 U.S. Dist. LEXIS 25855
March 28, 2008, Decided
March 28, 2008, Filed

 

Plaintiff Edward H. Arnold ("Arnold") brings this action against Defendants KPMG ("KPMG"), an accounting firm, and Sidley Austin Brown & Wood ("Brown & Wood"), a law firm, for damages allegedly suffered when he bought tax shelters from KPMG with Brown & Wood's endorsement. The tax shelters, which were effectuated through the purchase and sale of securities, were designed to offset Arnold's income but were determined to be unlawful tax-avoidance schemes.

 

The Court held oral argument on the matter on March 6, 2008. (Transcript of Oral Argument, March 6, 2008 ("Tr.").) The Court ruled that: (1) Arnold's federal securities claims are time-barred by operation of the relevant statute of limitations (Tr. at 7-11); and (2) Arnold's numerous state law claims merge into single claims for professional malpractice against each defendant (Tr. at 11-12). In light of these holdings, the Court heard oral argument as to: (1) whether the Court should exercise supplemental jurisdiction over the state law malpractice claims in light of the dismissal of the federal claims, and (2) whether the state law malpractice claims are time-barred under the statute of limitations. The Court now exercises its supplemental jurisdiction over the state law malpractice claims and dismisses them as time-barred.

 

In this case, Defendants argue that the three-year statute of limitations accrued when the opinion letters were issued. Arnold contends that because the fraudulent scheme was continuous, the claim did not accrue against either Defendant until KPMG revealed its fraudulent conduct by entering into a deferred prosecution agreement with the Department of Justice in August 2005. In the alternative, Arnold argues that the statute of limitations was tolled.

The Court rejects the argument that the appropriate date of accrual was August 2005; the claim for malpractice accrued when each Defendant issued its opinion letter. 

 

YAMIRA SANTIELI, Plaintiff, v. LAWRENCE M. LAPINE, Defendant.

3:05cv1712(WWE)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

2008 U.S. Dist. LEXIS 28251

March 26, 2008, Decided

To recover on a claim of legal malpractice, plaintiff must establish (1) the existence of an attorney-client relationship; (2) the attorney's wrongful act or omission; (3) causation; and (4) damages. Plaintiff must produce expert testimony that a breach of the professional standard of care has occurred, and that the breach was a proximate cause of the injuries suffered by the plaintiff. Dixon v. Bromson and Reiner, 95 Conn.App. 294, 297-98, 898 A.2d 193 (2006); Solomon v. Levett, 30 Conn.App. 125, 128, 618 A.2d 1389 (1993). In malpractice cases, expert testimony serves to assist lay people, such as members of the jury and the presiding judge, to understand the applicable standard of care and to evaluate the defendant's action in light of that standard. Vona v. Lerner, 72 Conn.App. 179, 187, 804 A.2d 1018 (2002).

Plaintiff makes no representation that she intends to disclose an expert witness and she has filed no motion to do so. Rather, she argues that this case falls within the exception to the expert witness requirement where there is "such an obvious and gross want of care or skill that the neglect is clear even to a layperson." Davis v. Margolis, 215 Conn. 408, 416 n. 6, 576 A.2d 489 (1990).

An expert may not be necessary when the legal malpractice involved a failure to follow rules of procedure, such as filing motions or attending hearings. See Dubreuil v. Witt, 80 Conn.App. 410, 422, 835 A.2d 477 (2003). However, the instant case does not involve an obvious and gross want of care that would be clear to a lay person. Here, assessment of whether defendant breached the standard of care requires expert testimony as to the division of marital assets and the advice provided by defendant. Accordingly, summary judgment is appropriate.