Representative Cases for Professional Liability Litigation

Representative Cases

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• 180 Ludlow Dev. LLC v. Olshan Frome Wolosky LLP, 165 A.D.3d 594 (1st Dep’t 2018) (affirming grant of summary judgment dismissing claim by real estate developer whose team withheld information from law firm, noting that “[w]hile proximate cause is generally a question for the factfinder ... it can, in appropriate circumstances, be determined as a matter of law”)

• Rodriguez v. Washington Heights Dental Practice, 158 A.D.3d 589 (1st Dep’t 2018) (affirming trial court’s dismissal of plaintiff’s dental malpractice and wrongful death claim against the treating dentist and the practice finding that plaintiff’s expert did not create a material issue of fact as to the dentist’s treatment of the plaintiff-decedent as the expert’s opinion was not supported by the record)

• Delphi Healthcare PLLC v. Petrella Phillips LLP, 158 A.D.3d 1329 (4th Dep’t 2018) (affirming trial court’s dismissal of plaintiffs’ claim against accounting firm for indemnification and contribution for over $2 million paid by plaintiffs in an underlying wage and hour class action lawsuit, including any claims for attorney’s fees associated with their defense of the class action)

• Perez v. Gerber - A New York County jury returned a defense verdict in favor of our client, a general dentist, following a one-week trial.  Plaintiff claimed that our client took advantage of her financially by duping her into accepting unnecessary dental treatment and provided negligent treatment, which allegedly caused loss of three teeth, destruction of her natural smile, and other injuries.  Plaintiff further claimed for the first time at trial that our client tampered with the evidence, including by backdating a key x-ray.  Plaintiff sought monetary damages for physical injuries and past and future pain and suffering.  The jury deliberated for a little over one hour and returned a verdict finding no liability against our client and that plaintiff was 100% at fault

• Guidance Endodontics v. Olshan, 2018 WL 358011 (1st Dep’t 2018) (affirming trial court’s granting of defendant’s motion to dismiss plaintiff’s claim that, as a result of law firm’s alleged mishandling of an action in New Mexico, the jury did not award an extra $148 million and plaintiff was forced to settle for $11.5 million settlement; also finding plaintiff’s malpractice claim barred by the doctrine of collateral estoppel in light of a New Mexico court’s dismissal of plaintiff’s malpractice claim against our client’s New Mexico co-counsel and that plaintiff’s allegations were “sheer speculation” and precluded by its settlement of the underlying suit)

• 180 Ludlow v. Olshan, Index No. 651473/2013 (Sup. Ct. N.Y. County August 23, 2017) (granting cross-motion for summary judgment on behalf of mid-size Midtown firm dismissing $12 million legal malpractice claim brought by real estate developer, principally claiming that the firm had negligently drafted the Zoning Lot Development Agreement (ZLDA) in connection with plaintiff’s purchase of air rights to build a prominent Lower East Side hotel, as a result of which it allegedly had to tear down part of a cantilever over its neighbor’s property when the neighbor refused to install mechanical ventilation plaintiff claimed was required by the Building Code; the court relied in large part on the evidence we developed that, prior to the closing, the developer had discussed the Building Code issue with its architect and various other professionals, but not our client, and also found persuasive as the affidavits from our expert who opined, among other things, that our client, which served as the transactional lawyer for the deal, was entitled to rely on the developer and its experts to bring the Building Code issue to its attention and that the type of provision plaintiff and its expert claimed should have been included in the ZLDA would have been unprecedented)

• Jenkin v Cadore, Index No. 8409/2013  (Kings County Supreme Court, April 14, 2017) (granting summary judgment dismissing third-party complaint alleging legal malpractice against a law firm for its representation of a seller of a brownstone in Brooklyn who refused to proceed with the sale; holding that the seller did not have the right to cancel the contract and the law firm acted properly in representing the client in the transaction)

• Kolodin v. Valenti, 147 A.D. 2d 459 (2d Dep’t 2017) (reversing trial court’s denial of summary judgment to accountant claimed to have given improper tax advice, appellate division held that the advice could not have been the proximate cause of plaintiff’s claimed loss arising from the transfer of funds she authorized from a joint brokerage account to an individual brokerage account owned by her former paramour)

• Guidance Endodontics v. Olshan, Index No. 163139/15 (Sup. Ct. N.Y. County October 25, 2016) (Ramos granting defendant’s motion to dismiss plaintiff’s claim that, as a result of our client’s alleged mishandling of an action in New Mexico, the jury did not award an extra $148 million and plaintiff was forced to settle for $11.5 million settlement; court found plaintiff’s malpractice claim both barred by the doctrine of collateral estoppel in light of a New Mexico court’s dismissal of plaintiff’s malpractice claim against our client’s New Mexico co-counsel and based on rank speculation; breach of fiduciary duty claim dismissed on three separate grounds)

• Combined Container Inc. v. Prominent CPA Firm (Sup. Ct. Nassau County 2015) (tried before jury and obtained a defense verdict, where company sued its accounting firm for almost $1 million after its bookkeeper embezzled $684,000 by putting her husband on the payroll; CPA firm had performed accounting for the defendant for at least 30 years and been retained to review the plaintiff's financial statements for the period of the fraud; successfully argued that the CPA firm complied with the applicable AICPA standards and that it was not responsible for uncovering the fraud)

• DeLollis v. Friedberg Smith & Co., P.C., 600 Fed.Appx. 792 (2d Cir. 2015) (affirming dismissal of claim against auditor of auditor of so-called Madoff feeder fund on the ground that the firm’s client had no duty to perform audit procedure on Madoff registered broker-dealer and was entitled to rely on its financial statements; firm acted as co-counsel)

• Leroy v. Levingart, (Civil Court, New York County) (LCBF associate Peter Wiltenberg obtained a dismissal of a dental malpractice case after opening, examining the client, cross-examining plaintiff, and summing up)

• DeLollis v. Friedberg, Smith & Co., P.C., 933 F.Supp.2d 354 (D. Conn. 2013), aff'd 600 Fed.Appx.792 (2nd Cir. 2015) (granting the motion to dismiss filed by LCBF on behalf of the auditor of an investment fund sued for tens of millions of dollars of Madoff-related losses; court held that plaintiffs had no plausible claim that the auditor departed from the applicable auditing standards in relying on annual confirmations from Madoff’s brokerage firm)

• Dawson Foundation v. Zucker et al., No. 650053/11 (Sup. Ct. N.Y. Co. 2012) (dismissing “holder claims” against accountant client)

• Tufo v. Pellegrino et al. (Sup. Ct. N.Y. Co. 2012) (dismissing claims, including claims for professional negligence, breach of contract, conversion, conflict of interest, and breach of fiduciary duty, asserted by a shareholder/officer of an automobile dealership against its accountants when plaintiff was allegedly denied certain shareholder rights and financial benefits by the other shareholders, awarding costs and disbursements to defendant)

• Krasner v. RAHFCO Funds, 2012 WL 4069300 (S.D.N.Y. 2012) (dismissing with prejudice federal securities and common law claims asserted by a group of investors against its accounting firm client and others arising from the accounting services provided to a hedge fund that was ultimately discovered to be involved in a multi-million dollar alleged Ponzi scheme)

• Paladini v. Capossela, Cohen, LLC, 2012 WL 3834655 (S.D.N.Y. 2012) (dismissing with prejudice claims against the accounting firm, finding that plaintiff's claims failed as a matter of law because of an absence of proximate cause and that plaintiff, when deciding to enter into two 2007 loans and distributions for almost $100 million, could not have relied on the firm's 2007 audit in any manner as the audit was not completed until the following year)

• Irvin v. Jones, 2012 WL 6634476 (Sup. Ct. Suffolk Co., 2012) (dismissing breach of fiduciary, accounting, and punitive damages claims against an accountant and his firm allegedly responsible for millions of dollars plaintiff allegedly lost as a result of a 1031 exchange and other investments, because "continuous representation doctrine" did not apply, and "holder claims" not actionable)

• Fox v. SLS Residential, Inc., 928 N.Y.S.2d 317 (App. Div. 2d Dep’t 2011) (rejecting plaintiff estate’s claim that clients affiliated with residential treatment facility may be held liable for medical malpractice for not controlling a voluntary mental health outpatient who committed a seemingly random murder of his mother’s neighbor)

• Strumwasser v. Zeiderman et al., No. 112524/10, (Sup. Ct. N.Y. Co. 2011) (dismissing accounting malpractice and fraud claims against CPA firm and individual accountants who provided adversarial expert analysis/report)

• Luske v. Greene et al., No. 106814/09, (Sup. Ct. N.Y. Co. 2011) (dismissing legal malpractice claims against law firm and individual lawyers who provided matrimonial legal services to plaintiff)

• In re Beacon Associates Securities Litigation, 2010 WL 3895582 (S.D.N.Y. 2010) (dismissing class action and derivative claims against auditor client of Madoff feeder fund, allowing claims against other defendants to proceed)

• Septimus v. Bronsky, No. 106298/08 (Sup Ct. N.Y. Co. 2010) (defense verdict for only non-settling defendant with respect statements defendant orthodontist made to the Dental Peer Review Committee to which plaintiff had presented a malpractice claim prior to the initiation of the lawsuit, plaintiff’s claims for defamation and punitive damages having been previously dismissed)

• Block v. Singh, No. 106297/08 (Sup. Ct. N.Y. Co. 2010) (defense verdict for defendant who allegedly failed to detect an inflamed polyp in her sinus prior to the performing implants and bone graft, resulting in plaintiff having to undergo a sinus surgery)

• Duravest, Inc. v. Viscardi, A.G., 2008 WL 1742845 (S.D.N.Y. 2009) (dismissing RICO claim against accountant client)

• Fox v. SLS Residential, Inc., Index No. 14183/2008 (Sup. Ct. Nassau County 2009) (granting summary judgment for an owner and administrator of a psychiatric facility sued by the family of a woman who had been decapitated and dismembered by an out-patient)

• Berger v. Bronsky, No. 115702/06 (Sup. Ct. N.Y. Co. 2008) (defense verdict for only non-settling defendant where plaintiff alleged orthodontic malpractice arising from treatment to correct an impacted tooth and straighten teeth; verdict subsequently upheld by Appellate Division, First Department following plaintiff’s appeal)

• Rivera v. Anilesh, 8 N.Y.3d 627 (2007) (rejecting the Appellate Division's ruling that the defendant dentist could not rely upon testimony as to her customary practice in treating a patient to support a reasonable inference that the dentist acted in accordance with that same routine when treating the plaintiff patient)

• Urbont v. Grayson, No. 110453/05 (Sup. Ct. N.Y. Co. 2007) (defense verdict where plaintiff claimed that defendant improperly prepared teeth, improperly fabricated the crowns, and maintained temporary crowns for an excessive period of time, resulting in tooth decay, need for 20 root canals, and the loss of multiple teeth and defendant argued that any delays were result of plaintiff’s nit-picking over the aesthetics of the crowns)

• Vukelj v. Llagas, No. 10565/05, (Sup. Ct. N.Y. Co. 2006) (defense verdict based on informed consent and lack of malpractice after seven-day trial where plaintiff claimed that endodontist failed to properly perform a root canal resulting in Ludwig’s Angina (bacterial infection on floor of mouth) and a 6-day hospitalization)

• National Union Fire Ins. Co. of Pittsburgh, Pa. v. L.E. Myers Co. Group, 1997 WL 148231 (S.D.N.Y. 1997) (after bench trial, client wholesale insurance broker found not responsible for failing to object to policy's prior acts exclusion, which would have barred coverage for a subsequent loss, because no mutual agreement to amend coverage provided by binder)

• Kaplan v. Sachs, 234 A.D.2d 271 and 224 A.D.2d 666 (App. Div 2d Dep’t 1996) (affirming dismissal of legal malpractice action where criminal defense attorney allegedly prematurely rested at criminal trial in order to go on his honeymoon)

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