#NY2D

[schoolsformedicalbilling]

New York Court of Appeals. Records and Briefs.

[boneymanyana]

#shoutout to the big bro @papi_moreno191 for representing for the #hometeam ... #tomorrowsyourtime #ny2de #de2nyc #gofollowhim (at New York, New York)

[jogodebuzios]

ORAÇÃO PROSPERIDADE E RIQUEZA TODAS AS MANHÃS. Eu sou um ímã que atrai riqueza todas as Formas de prosperidade chegam Eu mereço as melhores coisas Onde quer que o trabalho seja uma empresa ou para resultados pessoais Eu sou profundamente admirado e bem remunerado Hoje é um dia maravilhoso O dinheiro chega a mim dentro de maneiras de previstas como inesperados Em escolhas ilimitadas e as oportunidades estão por toda parte Acredito que estamos aqui para nos abençoar uns aos outros e nos ajudarmos a prosperar Essa crença se reflete em todos usados ajuda os meus atos Ajudo os outros a se tornarem prósperos e a vida me devolve este amor de formas infinitas e extraordinárias Amo o trabalho que faço e sou bem remunerado por ele Sinto prazer em lidar com o dinheiro que ganho Poupo uma parte e desfruto restante vivo com uma qualidade de vida excelente Eu vivo em um universo de amor abundância ea harmonia e sou grato por isso Assumo o compromisso de permitir que a prosperidade ilimitada que existe no universo flua livre e constantemente Uso o dinheiro que ganho em coisas que me fazem feliz permito que a maior prosperidade possível permaneça em minha vida irradio sucesso e prosperidade onde quer que eu esteja sempre A vida satisfaz todas as minhas necessidades com grande abundância eu confio na vida Só atraio coisas boas pra minha vida a cada dia vejo nos ganhos aumentarem e tenho a certeza de que eu mereço mais e mais Eu mudo agora meus pensamentos pobreza com o pensamento de prosperidade e as minhas finanças diariamente refletem a sua mudança. Alegro me com a segurança financeira que é constante em minha vida Quanto mais sinto gratidão pela riqueza e abundância minha vida mais motivos eu descubro para agradecer. Expresso gratidão por todo bem que há em minha vida, cada dia traz novas e maravilhosas surpresas eu pago minhas contas sempre de forma antecipada e com o amor me alegro autorizar cada pagamento no banco. A abundância flui livremente através de mim Neste exato momento eu tenho absoluta certeza de que há muita riqueza e poder ao meu dispor. Tenho absoluta certeza que mereço essa abundância de forma natural em minha vida. Eu mereço melhor e aceito o https://www.instagram.com/p/By6plp-nY2d/?igshid=h2e0m5mt3qnk

[juudgeblog]

All Reasonable Inferences

An order dismissing a legal malpractice claim was reversed by the New York Appellate Division for the First Judicial Department Accepting plaintiff client’s allegations as true and drawing all reasonable inferences in its favor (see Leon v Martinez, 84 NY2d… All Reasonable Inferences syndicated from http://ift.tt/2vKNZDn

[fuckmaga]

Booking Photograph Legislation

BOOKING PHOTOGRAPHS LEGISLATION

“THE MUGSHOT BILL”

On April 12 , 2019, the Governor signed legislation, as part of the fiscal year 2020 Public Protection and General Government Article VII Budget Bill, to amend the Freedom of Information Law (FOIL). This amendment adds a new subparagraph (“viii.”) to the non-exclusive list of examples of unwarranted invasion of personal privacy (§89(2)(b) of FOIL) and will permit law enforcement agencies to deny access to arrest and booking photographs, or “mugshots,” on that ground (§87(2)(b) of FOIL).

The original legislation, which was included as part of the Governor’s budget proposal, applied to all booking information. However, the provision that was ultimately passed and signed by the Governor is more limited in scope and applies only to arrest and booking photographs.

As a general matter, the grounds for denial set forth in FOIL are permissive. Stated differently, even though an agency may withhold records in accordance with the grounds for denial listed in §87(2), it is not required to do so unless disclosure is prohibited by another state or federal statute [see Capital Newspapers v. Burns, 109 AD2d 92, aff’d 67 NY2d 562 (1986)]. As such, a local law enforcement agency, such as a County Sheriff’s Office or City, Town, or Village Police Departments, will continue to be able to disclose copies of arrest and booking photographs if it wishes to do so.

State law enforcement agencies, such as the New York State Police are also bound by the requirements of the Personal Privacy Protection Law (Public Officers Law Article 6-A), which applies only to state agencies and contains the following language:

“(1) No agency may disclose any record or personal information unless such disclosure is: ... (c) subject to disclosure under article six of this chapter unless disclosure of such information would constitute an unwarranted invasion of personal privacy as defined in paragraph (a) of subdivision two of section eighty-nine of this chapter ...” (§96(1)(c) of PPPL) (emphasis added)

As such, State law enforcement agencies are, in our opinion, prohibited from disclosing arrest and booking photographs unless public release of the photographs will serve a specific law enforcement purpose.

The amendment to FOIL, codified as Chapter 59 of the Laws of 201 9 reads as follows:

“Part GGG

Section 1. Section 1 of subpart K of part II of a chapter of the laws of 2019 amending the public officers law relating to prohibiting disclosure of law enforcement booking information and photographs, as proposed in legislative bill numbers S.1505-C and A.2005-C, is amended to read as follows:

Section 1. Legislative findings. The legislature finds that law enforcement [ booking information and ] photographs, otherwise known as "mugshots," are published on the internet and other public platforms with impunity. An individual's mugshot is displayed publicly even if the arrest does not lead to a conviction, or the conviction is later expunged, sealed, or pardoned. This practice presents an unacceptable invasion of the individual's personal privacy. While there is a well-established Constitutional right for the press and the public to publish government records which are in the public domain or that have been lawfully accessed, arrest and booking information have not been found by courts to have the same public right of access as criminal court proceedings or court filings. Therefore, each state can set access to this information through its Freedom of Information laws. The federal government has already limited access to booking photographs through privacy formulations in its Freedom of Information Act, and the legislature hereby declares that New York will follow the same principle to protect its residents from this unwarranted invasion of personal privacy, absent a specific law enforcement purpose, such as disclosure of a photograph to alert victims or witnesses to come forward to aid in a criminal investigation.

§ 2. Paragraph (b) of subdivision 2 of section 89 of the public officers law, as amended by section 2 of subpart K of part II of a chapter of the laws of 2019 amending the public officers law relating to prohibiting disclosure of law enforcement booking information and photographs, as proposed in legislative bill numbers S.1505-C and A.2005-C, is amended to read as follows:

(b) An unwarranted invasion of personal privacy includes, but shall not be limited to: i. disclosure of employment, medical or credit histories or personal references of applicants for employment; ii. disclosure of items involving the medical or personal records of a client or patient in a medical facility; iii. sale or release of lists of names and addresses if such lists would be used for solicitation or fund-raising purposes; iv. disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it; v. disclosure of information of a personal nature reported in confidence to an agency and not relevant to the ordinary work of such agency; or vi. information of a personal nature contained in a workers' compensation record, except as provided by section one hundred ten-a of the workers' compensation law; [or] vii. disclosure of electronic contact information, such as an e-mail address or a social network username, that has been collected from a taxpayer under section one hundred four of the real property tax law[.]; or viii. disclosure of law enforcement [ booking information about an individual, including ] arrest or booking photographs of an individual , unless public release of such [ information ] photographs will serve a specific law enforcement purpose and disclosure is not precluded by any state or federal laws.

§ 3. This act shall take effect on the same date and in the same manner as subpart K of part II of a chapter of the laws of 2019 amending the public officers law relating to prohibiting disclosure of law enforcement booking information and photographs, as proposed in legislative bill numbers S.1505-C and A.2005-C, takes effect.

Section 3 of subpart K of part II, referenced above, states that “This act shall take effect immediately.”

[albstone94]

From Outlier to Center Stage

Continuous representation was once determined almost solely by the date of transfer of representation.  Either a consent to change attorney or a court order determined the last day of representation and hence the end of continuous representation.  Then came Aaron v. Roemer  which held that communications showing a total breakdown of the attorney-client relationship marked the end of continuous representation, even though the order came days later.  Those few days made a great difference.

Consolidated Edison Co. of N.Y., Inc. v Armienti,  Debellis & Whiten, LLP  2019 NY Slip Op 31123(U)  April 17, 2019  Supreme Court, New York County   Docket Number: 152730/2018 Judge: William Franc Perry reaches a similar conclusion, and, sub rosa holds that Con Ed would have lost for many other reasons as well.

“Under CPLR 214(6), a plaintiff must commence an action to recover damages for legal malpractice within three years from the date of the alleged malpractice. “The period of limitations in a legal malpractice action begins to run when the malprac~ice is committed … , not when the client discovers the injury/’ (Wells Fargo Home Mortgage, Inc. v Zeichner, Ellman & Krause, LLP, 5 AD3d 128, 128-29 [1st Dept 2004] [internal citation omitted]). “A legal malpractice Claim accrues ‘when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court'” (McCoy v. Feinman, 99 N.Y.2d 295, 301 [2002], quoting Ackerman v. Price Waterhouse, 84 NY2d 535, 541 [1994]). “[W]hat is important is when the malpractice was committed, not when the client discovered it” (Hahn v Dewey & .LeBoeuf Liquidation Tr., 143 AD3d 547, 547 [1st Dept 2016] [internal quotation marks and citations omitted]).

Here, the actions giving rise to Con Edison’s claims for legal malpractice occurred in 2005 and 2006. Accordingly, to survive dismissal, Con Edison must establish that the statute of limitations was tolled pursuant to the continuous representation doctrine until at least March 27, 2015, which date is three years prior to Con Edison’s commencement of this action. 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” (Zorn v Gilbert, 8 NY3d 933, 934 [2007], quoting McCoy v Feinman, 99 NY2d 295, 306 [2002]; see also Shumsky v Eisenstein, 96 NY2d 164, 167-168 [2001J). The purpose of the continuous representation doctrine is to avoid forcing a client to jeopardize the relationship with the attorney handling his or her case during the period that the attorney continues to represent them (Waggoner v Caruso, 68 AD3d 1, 7 [1st Dept 2009], af(d, 14 NY3d 874 [2010]). “An attorney-client relationship would certainly be jeopardized by a client’s allegation that his or her attorney committed   malpractice while representing the client” (id. [citation omitted]). The application of the continuous representation doctrine in an action for attorney malpractice “envisions a relationship between the parties that is marked with trust and confidence. It is a relationship which is not sporadic but developing and involves a continuity of the professional services from which the alleged malpractice stems” (Frenchman v Queller, Fisher, Dienst, Serrins, Washor & Kool, LLP, 24 Misc 3d 486, 498 [Sup Ct New York Cnty 2009], quoting Muller v Sturman, 79 AD2d 482, 486 [4th Dept 1981]; see Henry v Leeds & Morelli, 4 AD3d 229 [1st Dept 2004]). For the continuous representation doctrine to apply, “there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice” (Luk Lamellen U Kupplungbau GmbH v Lerner, 166 AD2d 505, 507 [2d Dept 1990]).

Here, Armienti argues that Con Edison’s claims accrued, at the !atest, on March 24, 2015, three years after Everest and Con Edison directed Armienti to transfer the Casas file to Heidell and notified Armienti that Heidell would be taking over the defense of Con Edison in the Casas Action. Armienti further argues that a breakdown in the relationship of trust and confidence between Con Edison and Armienti is demonstrated by the two letters from Con Edison’s in-house counsel to Armienti in December of 2014, which letters requested all documents regarding the alleged acts constituting legal malpractice in this action, and challenged the propriety of Armienti’s discontinuance of the third-party action against Nelson in 2005. In opposition, Con Edison argues that Armienti’ s representation of Con Edison for purposes of the continuous representation doctrine continued until the execution of their Consent to Change Attorneys on April 13, 2015 (Complaint,

In a given case, the Consent to Change Attorney may reflect the erid date of an attorneyclient relationship, in the absence of other evidence that establishes an earlier date (see Louzoun v. Kroll Moss & Kroll, LLP, 113 A.D~3d at 602, 979 N.Y.S.2d 94 [2d Dept 2014]). While, “from the standpoint of adverse parties, counsel’s authority as an attorney of record in a civil action continues unabated until the [attorney’s] withdrawal, substitution, or discharge is formalized” in accordance with CPLR 321, “[a ]n affirmative discharge of an attorney by the client is immediate” (Farage v Ehrenberg, 124 AD3d 159, 165 [2d Dept 2014] [citations omitted]). Thus, where evidence establishes that a client affirmatively discharged their attorneys prior to the execution of a Consent to Change Attorney, the Consent to Change Attorney does not, in and of itself, serve as a basis to toll the statute of limitations (see Frenchman v Queller, Fisher, Dienst, Serrins, Washor & Kool, LLP, 24 Misc 3d 486, 504-05 [Sup Ct New York Cnty 2009] [holding notice of substitution, signed by defendant on December 17, 2004, did not, in and of itself, serve as a basis to toll the statute of limitations under the continuous representation doctrine, where plaintiffs own letter to defendant in August of 2004 made clear that defendant was being replaced by other counsel]).”

From Outlier to Center Stage

[duaneodavila]

Ability To Pay Bail Held A Constitutional Consideration

When the Appellate Division, Second Department, referred the Article 70 proceeding to Dutchess County Supreme Court Justice Maria Rosa, they made an excellent choice. Justice Rosa had already proven herself an exceptionally bold and tough judge, willing to confront systemic problems in the system head on. And bail? One of the worst.

The NYCLU argued that failure of judges setting bail to consider a defendant’s ability to pay was a violation of the Equal Protection and Due Process Clauses. It’s not that judges were prohibited from considering ability to pay, but they weren’t required to do so by statute. And most didn’t.

While it is clear that the legislature must act, it is undisputed that the earliest such action could occur would be 2019. In the interim, thousands of individuals will be in a similar situation as the petitioner was at his arraignment. It is clear to this court that a lack of consideration of a defendant’s ability to pay the bail being set at an arraignment is a violation of the equal protection and due process clause of the Fourteenth Amendment and of the New York State Constitution: Clearly, $5000.00 bail to someone earning $10,000.00 per year, like the petitioner, without significant assets, is much more of an impediment to freedom than $5000.00 bail would be to a defendant earning substantially more and/or with significant assets. Setting that sum as to both such individuals would not be equal treatment.

As can happen, the petitioner in the case copped a plea in midstream, but Justice Rosa properly rejected the mootness argument.

The court considered the matter as an action for declaratory judgment in that case, and this court finds it appropriate to do so here. See also Hearst Corp. v. Clyne, 50 NY2d 707 (1980) where the Court of Appeals outlined a three prong test for recognition of an exception to mootness when (1) the case raises a substantial or novel issue, (2) that has a “likelihood of repetition, either between the parties or among other members of the public”, (3) and yet, because of the fleeting nature of the dispute, the issue will typically evade judicial review.

This is a critical detail that allows a court to deal with huge systemic problems that impact an enormous number of defendants, but easily evade review because they’re “fleeting.” So even though the petitioner pleaded guilty, and no longer needed  remedy, the case proceeded as a declaratory judgment action.

And Justice Rosa came down on it.

While imposing bail under appropriate circumstances clearly serves an important and perhaps even compelling governmental objective, the failure to consider the economic status of a defendant does not serve that interest nor does the consideration of economic status impede that interest. Therefore, applying any of the above tests, the failure to consider a defendant’s financial situation when imposing bail violates that defendant’s right to equal protection under the United States and New York State Constitutions.

Significantly, Justice Rosa’s ruling was grounded in the rational basis test, rather than strict scrutiny, as indigency is not a “suspect classification” for equal protection analysis. The distinction almost always dictates the outcome, as strict scrutiny is an  extremely high burden, while rational basis is usually a government throwaway test. With a little rhetorical effort, almost any rule can be twisted into serving a rational governmental purpose.

Not this time. There was simply no justification, not even a little bit, for ignoring a defendant’s ability to pay bail when holding a presumptively innocent person in jail.

Protection against discrimination is never more important than when a person’s freedom is at stake. Since one accused of a crime in the United States is presumed innocent until proven guilty, the setting of bail is supposed to be limited to those defendants who are either a danger to a specific individual* or to the public or who pose a flight risk. There are conflicting allegations as to Mr. Kunkeli’s work and living situations and his record of prior court appearances. This court is not ruling upon whether or not it was appropriate for Judge Sullivan to set bail in this case, or even to have knowingly set bail the defendant could not afford, but only as to the propriety of the failure to consider whether Mr. Kunkeli had the ability to pay the sum of bail set.

But if you read closely, you realize that practical roadblocks stand in the way. At initial arraignment, the judge has little to go on about the defendant’s actual financial conditions. If his CJA forms show he’s unemployed, then it may well be that he’s indigent. Except when the charge is drug dealing, which will be argued that he’s hardly unemployed or indigent. Or if he’s got an iPhone on him at the time of arrest. If he can afford a fancy toy, he can afford bail.

The contentions in the trenches put a judge in a difficult position, as it’s all talk and no proof. Saying a defendant is broke doesn’t make him broke. And indeed, if he’s got private counsel, that could be seen as a deal breaker, even if his family’s last dime was spent retaining a lawyer, as is their right.

While Justice Rosa’s ruling, that the Constitution requires judges to consider a defendant’s ability to pay when setting bail, is a significant step forward, and sufficiently sound to hold up on appeal, whether it will have a material impact in the trenches will have to be seen. For some defendants who are employed and can prove they make poverty level wages, this could prove to be a viable way out. Provided, of course, that judges can do that math and recognize that half a year’s salary is a bit steep for a turnstyle jumper.

Still, this ruling fails to confront the core problem, that bail is imposed for the asking for cases where there is no substantive justification for bail at all. And judges can fix that problem any time they want. Any time at all.

*Note that the New York bail statute does not include a “danger to the community prong.”

Copyright © 2007-2018 Simple Justice NY, LLC This feed is for personal, non-commercial and Newstex use only. The use of this feed anywhere else violates copyright. If this content is not in your news reader, it means the page you are viewing infringes copyright. (Digital Fingerprint: 51981395c77d7762065ca2c084b63e47) Ability To Pay Bail Held A Constitutional Consideration republished via Simple Justice

[getmanlaw]

New York Appeals Court: Holding a GPS Device While Driving Violates Vehicle and Traffic Law

Matter of Clark v. New York State Dept. of Motor Vehs., 2017 N.Y. Slip Op. 05133, 3rd Dept 6-22-17:

Petitioner was issued a summons for operating a motor vehicle while using a portable electronic device in violation of Vehicle and Traffic Law § 1225-d after a police officer observed him driving while holding a global positioning system (hereinafter GPS) device in his right hand. Petitioner pleaded not guilty to the charge and, following a hearing before the Administrative Adjudication Bureau of respondent Department of Motor Vehicles, an Administrative Law Judge found petitioner guilty....

(A) hand-held GPS device meets the statutory definition of a "portable electronic device" inasmuch as it is a "hand-held device with mobile data access" (Vehicle and Traffic Law § 1225-d [2] [a]). In our view, it is mobile and receives data to

calculate a driver's geographical location and to communicate directions. Moreover, a review of the pertinent legislative history regarding Vehicle and Traffic Law § 1225-d [*2]demonstrates that the Legislature intended Vehicle and Traffic Law § 1225-d (2) (a) to encompass any portable electronic device that diverts a driver's attention away from the road and prevents the full use of a driver's hands (see Assembly Mem in Support, Bill Jacket, L 2009, ch 403 at 14; Letter from Dept of Motor Vehicles, Bill Jacket, L 2009, ch 403 at 20). Thus, we are satisfied that the Appeals Board's interpretation of Vehicle and Traffic Law § 1225-d (2) (a) as encompassing a hand-held GPS device was rational (see generally Matter of Fineway Supermarkets v State Liq. Auth., 48 NY2d 464, 468 [1979]; Matter of Bonhomme v New York State Liq. Auth., 221 AD2d 882, 883 [1995]).

We also agree that there is ample support for the Appeals Board's determination that petitioner was using the GPS device. Petitioner concedes that, while he was driving, he was holding the device in his hand and "view[ing] the GPS navigation system to read directions." Accordingly, we find that the determination was supported by substantial evidence (see generally Matter of Hollinger v New York State Dept. of Motor Vehs., 18 AD3d 1012, 1013 [2015]; Matter of Carota Enters. v Jackson, 241 AD2d 667, 668 [1997]). Petitioner's remaining contentions have been reviewed and found to be lacking in merit.

[ericfruits]

Lien Fails To Protect Firm's Interest

Wednesday, February 16, 2022

The New York Appellate Division for the First Judicial Department ruled against a law firm's effort to secure payment from a former client through a lien

This lawsuit concerns the issue of whether plaintiff, a law firm, subordinated its priority security lien in defendant SightSound's patented technology related to selling digital video and audio recordings electronically through the Internet. SightSound originally retained plaintiff to provide it with legal advice on protecting its intellectual property and to prosecute a case for patent infringement against N2K. By July 2001 SightSound had amassed a large debt to plaintiff and could no longer afford to pay its legal fees in pursuit of the litigation.

As a consequence, in October 2001, plaintiff and SightSound entered into a Security Agreement pursuant to which plaintiff would forebear on enforcement of its fees in exchange for a secured first priority lien in SightSound's assets, "now owned or at any time hereafter acquired" by SightSound. The assets, defined as the "Collateral," include SightSound's patents, patent licenses, and "to the extent not otherwise included all Proceeds and products of any and all of the foregoing (including, without limitation, license royalties and proceeds of infringement suits)" (Security Agreement §3). The Security Agreement also prohibited the sale or transfer of the Collateral without plaintiff's written prior consent (Security Agreement §§5.5[a], 20.1). "Proceeds" was defined to include the proceeds of infringement lawsuits (Security Agreement §3). In 2004, the N2K litigation settled, and plaintiff received half of the settlement proceeds, or some $1.6 million.

SightSound believed it had additional financially valuable patent infringement claims against other entities, most notably Napster and Apple. Plaintiff commenced an action against Napster on SightSound's behalf, but SightSound was unable to finance the additional patent infringement litigations and began searching for outside financing. Eventually it reached an agreement with defendant General Electric (GE). In November 2005, SightSound and GE's subsidiary DMT, entered into an Asset Purchase Agreement (APA).

The Napster litigation settled for $3.1 million.

Because we agree that plaintiff consented to the APA waterfall provisions, plaintiff was not entitled to any money from the Napster settlement. The court correctly dismissed plaintiff's claims for breach of contract, specific performance, or unjust enrichment.

Plaintiff's fraudulent conveyance claim was also correctly dismissed. While the payment was made to an insider for an antecedent debt, it was made with plaintiff's prior consent, as evidenced by the Consent Agreement, in exchange for an arrangement to maximize plaintiff's chances of recovering on its own debt, and thus the transaction was carried out in good faith, which constitutes fair consideration (see Farm Stores v School Feeding Corp., 102 AD2d 249, 253-254 [2d Dept 1984], affd in part, appeal dismissed in part 64 NY2d 1065 [1985]).

The conversion claim was correctly dismissed on summary judgment because no claim for conversion lies where the monies are not a "specific, identifiable fund" (see Amity Loans v Sterling Natl. Bank & Trust Co. of N.Y., 177 AD2d 277, 279 [1st Dept 1991] [internal quotation marks omitted]), and in any event at trial plaintiff did not show it had "legal ownership or an immediate superior right of possession" to the Napster proceeds over defendants (National. Ctr. for Crisis Mgt., Inc. v Lerner, 91 AD3d 920, 920 [2d Dept 2012]).

(Mike Frisch)

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[juudgeblog]

All Reasonable Inferences

An order dismissing a legal malpractice claim was reversed by the New York Appellate Division for the First Judicial Department Accepting plaintiff client’s allegations as true and drawing all reasonable inferences in its favor (see Leon v Martinez, 84 NY2d… All Reasonable Inferences syndicated from http://ift.tt/2vKNZDn

[albstone94]

Limited Retainers Are Permissible; Multiple Representations, Too.

The primary lesson to be learned from Salans LLP v VBH Props. S.R.L.  2019 NY Slip Op 02611 Decided on April 4, 2019 Appellate Division, First Department is that courts will deem a studied prediction on what would have happened if counsel had actually gone to court and made certain arguments is that they will almost always call it “speculation” and dismiss a legal malpractice case.

The second less to learn is that limited scope retainer agreements are permissible, but ambiguous ones are construed in favor of the client.  Lastly, representing the president and the company at the same time is permissible sometimes.

“Contrary to plaintiff’s argument, the scope of the work it performed under the 2008 retainer agreement, which included not only numerous contracts and negotiations but also employment litigation in the U.K., makes it at least reasonable to construe the agreement as authorizing plaintiff to represent Luxury and Hoeksema in the underlying loan action (see Shaw v Manufacturers Hanover Trust Co., 68 NY2d 172, 177 [1986] [where there is ambiguity in retention agreement, agreement is construed in favor of client]).

However, plaintiff demonstrated prima facie entitlement to judgment in the legal malpractice counterclaim by showing that defendants could not prove that but for plaintiff’s failure to appear at the TRO hearing the hearing court would have denied the TRO or set a shorter return date (see Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 272 [1st Dept 2004] [holding that to establish a claim for litigation malpractice the client “must meet the case within a case’ requirement, demonstrating that but for’ the attorney’s conduct the client would have prevailed in the underlying matter or would not have sustained any ascertainable damages”]). Defendants speculate that had plaintiff appeared at the TRO hearing, injunctive relief may have been denied or the hearing court may have adjourned the case to an earlier date. Such speculation is insufficient to sustain a claim for legal malpractice (see Freeman v Brecher, 155 AD3d 453, 453 [1st Dept 2017]; Brooks v Lewin, 21 AD3d 731, 734-735 [1st Dept 2005], lv denied 6 NY3d 713 [2006]).”

“Luxury and Hoeksema contend that there is a conflict of interest in plaintiff’s [*2]representation of both of them. However, as Hoeksema is the sole owner, director and officer of Luxury, there is no conflict (see Topic: Concurrent Representation of Corporation and Sole Shareholder, Director and Officer (NY St Bar Assn Comm on Prof Ethics Op 868 [May 31, 2011]). Moreover, Luxury and Hoeksema failed to show any injury caused by the alleged conflict.”

Limited Retainers Are Permissible; Multiple Representations, Too.

[lyricallylive-blog]

Get to know the clothing company that me & Jeshaze & Koolkat are apart of Dimes and Twenys. Follow us via twitter @Dimesandtwenys & @DimesSociete