Counsel Concerns

Singer Toni Basil Can Proceed
With Malpractice Suit

Singer Toni Basil can proceed with her legal malpractice action against a New York attorney she claims failed to diligently protect her rights to her recording of the 1982 hit song “Mickey.” New York County Supreme Court Justice Paul Wooten agreed with Basil that her suit against attorney Oren J. Warshavsky and his former law firm Gibbons, Del Deo, Dolan, Griffinger & Vecchione was not time barred. Basilotta v. Warshavsky, 115525/09.

“Mickey” ' which begins with the words, “Oh Mickey, you're so fine/You're so fine you blow my mind/Hey Mickey, hey Mickey” ' hit #1 on the Billboard chart in December 1982 and has achieved near-iconic status in recent years. Basil, 68, whose real name is Antonia Christina Basilotta, retained the Gibbons firm to seek compensation from the Subway sandwich chain for what she called an unauthorized use of her work.

The malpractice defendants argued that Basil fired the firm no later than December 2006, and that Warshavsky notified her that he could not pursue her case in good faith. They contended that California law, and its one-year statute of limitations in Calif. Code of Civil Procedure '340.6(a), governed Basil's malpractice case because that is the state in which she incurred economic injury. Since the limitations period started to run in 2006, the attorneys claimed, she was well past it when her New York action was filed on Feb. 14, 2010.

Basil insists that she had never terminated her relationship with the lawyers and did not receive any withdrawal letters from them. She claims she only discovered the defendants' alleged failure to protect her interests in October 2009, when she learned that she had lost the rights to the master recording of “Mickey” with the dissolution of the England-based label Radialchoice, to which she had signed in 1982. Basil alleges that the attorneys' lack of diligence cost her millions of dollars because she could not exploit her rights to “Mickey” and other early 1980s recordings between 2005 and 2011, when she says there was a “lucrative resurgence” of interest in 1980s music.

Justice Wooten accepted Basil's contention, for the purpose of deciding the malpractice defendants' pre-answer motion to dismiss, that she “only actually discovered defendants' wrongdoing” in October 2009, when she learned that Radialchoice had been dissolved. That is when the statute of limitations for legal malpractice would begin to accrue. “As proving the date of accrual is part of a prima facie showing of entitlement to dismissal on statute of limitations grounds ' plaintiff has effectively rebutted defendant's prima facie showing, and the motion to dismiss must therefore be denied,” the judge wrote.

Justice Wooten noted in his decision that Warshavsky “at some point” conveyed to Basil an offer of $35,000 to settle the claim of the alleged misuse of “Mickey,” a proposed settlement that Basil rejected. Soon afterward, Warshavsky left Gibbons. Warshavsky is now with Baker & Hostetler. He did not return calls for comment.

Gibbons, Del Deo reorganized in New Jersey as Gibbons P.C. It has five offices, including one in Manhattan. It also did not return calls about the Basil matter.

Justice Wooten scheduled a preliminary conference for September 7 for discussions among the parties on how the action will proceed.

[Editor's Note: The court did find against Basil on other limitations argument she raised. For example, Justice Wooten noted he was "not persuaded by the plaintiff's fourth argument, that the statute of limitations was tolled because of defendants' willful concealment of its wrongdoing. To the extent that plaintiff had a valid claim based upon the involuntary dissolution of Radialchoice, no facts alleged in the complaint, motion papers, or exhibits thereto indicate that defendants were aware of such valid claim."]

' Joel Stashenko, The New York Law Journal

Plaintiff Nicholas Stenta alleged he was assaulted while at a concert at Comcast Theater in Hartford, CT. Stenta sued theater operator Live Nation in Connecticut Superior Court. Live Nation had the negligence suit removed on the basis of diversity jurisdiction to the U.S. District Court for the District of Connecticut. Live Nation then filed a third-party apportionment and indemnification complaint against Contemporary Services, which provided concert security. In addition, Live Nation filed an apportionment complaint against concessions operator Aramark Entertainment.

Aramark moved to strike, arguing that Live Nation failed to request court permission when the theater operator filed its apportionment complaint more than three months after filing its answer. Connecticut Gen. Stats. '52-102b(a) provides an apportionment complaint must be served within 120 days of the return date on the plaintiff's complaint. But Live Nation had timely served the apportionment complaint on Nov. 8, 2010, which was 118 days after the July 13, 2010, return date. Senior U.S District Judge Warren W. Eginton thus denied the motion to strike.

Connecticut Rule of Professional Conduct 1.9(a) provides: “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.” Live Nation moved to disqualify Aramark Entertainment's law firm, Behman Hambelton LLP, because the firm had represented both Live Nation and Aramark in another suit. Issues in this case were substantially related to the issues in the other suit, in which Behman Hambelton allegedly obtained privileged information.

Judge Eginton granted Live Nation's motion to disqualify, noting: “Because Live Nation was a client of Behman, Behman cannot represent Aramark Entertainment in its adversarial position against Live Nation in this case.” Stenta v. Live Nation Worldwide Inc., 3:10-cv-1071.

' Stan Soocher

Singer Toni Basil Can Proceed
With Malpractice Suit

Singer Toni Basil can proceed with her legal malpractice action against a New York attorney she claims failed to diligently protect her rights to her recording of the 1982 hit song “Mickey.” New York County Supreme Court Justice Paul Wooten agreed with Basil that her suit against attorney Oren J. Warshavsky and his former law firm Gibbons, Del Deo, Dolan, Griffinger & Vecchione was not time barred. Basilotta v. Warshavsky, 115525/09.

“Mickey” ' which begins with the words, “Oh Mickey, you're so fine/You're so fine you blow my mind/Hey Mickey, hey Mickey” ' hit #1 on the Billboard chart in December 1982 and has achieved near-iconic status in recent years. Basil, 68, whose real name is Antonia Christina Basilotta, retained the Gibbons firm to seek compensation from the Subway sandwich chain for what she called an unauthorized use of her work.

The malpractice defendants argued that Basil fired the firm no later than December 2006, and that Warshavsky notified her that he could not pursue her case in good faith. They contended that California law, and its one-year statute of limitations in Calif. Code of Civil Procedure '340.6(a), governed Basil's malpractice case because that is the state in which she incurred economic injury. Since the limitations period started to run in 2006, the attorneys claimed, she was well past it when her New York action was filed on Feb. 14, 2010.

Basil insists that she had never terminated her relationship with the lawyers and did not receive any withdrawal letters from them. She claims she only discovered the defendants' alleged failure to protect her interests in October 2009, when she learned that she had lost the rights to the master recording of “Mickey” with the dissolution of the England-based label Radialchoice, to which she had signed in 1982. Basil alleges that the attorneys' lack of diligence cost her millions of dollars because she could not exploit her rights to “Mickey” and other early 1980s recordings between 2005 and 2011, when she says there was a “lucrative resurgence” of interest in 1980s music.

Justice Wooten accepted Basil's contention, for the purpose of deciding the malpractice defendants' pre-answer motion to dismiss, that she “only actually discovered defendants' wrongdoing” in October 2009, when she learned that Radialchoice had been dissolved. That is when the statute of limitations for legal malpractice would begin to accrue. “As proving the date of accrual is part of a prima facie showing of entitlement to dismissal on statute of limitations grounds ' plaintiff has effectively rebutted defendant's prima facie showing, and the motion to dismiss must therefore be denied,” the judge wrote.

Justice Wooten noted in his decision that Warshavsky “at some point” conveyed to Basil an offer of $35,000 to settle the claim of the alleged misuse of “Mickey,” a proposed settlement that Basil rejected. Soon afterward, Warshavsky left Gibbons. Warshavsky is now with Baker & Hostetler. He did not return calls for comment.

Gibbons, Del Deo reorganized in New Jersey as Gibbons P.C. It has five offices, including one in Manhattan. It also did not return calls about the Basil matter.

Justice Wooten scheduled a preliminary conference for September 7 for discussions among the parties on how the action will proceed.

[Editor's Note: The court did find against Basil on other limitations argument she raised. For example, Justice Wooten noted he was "not persuaded by the plaintiff's fourth argument, that the statute of limitations was tolled because of defendants' willful concealment of its wrongdoing. To the extent that plaintiff had a valid claim based upon the involuntary dissolution of Radialchoice, no facts alleged in the complaint, motion papers, or exhibits thereto indicate that defendants were aware of such valid claim."]

' Joel Stashenko, The New York Law Journal

Plaintiff Nicholas Stenta alleged he was assaulted while at a concert at Comcast Theater in Hartford, CT. Stenta sued theater operator Live Nation in Connecticut Superior Court. Live Nation had the negligence suit removed on the basis of diversity jurisdiction to the U.S. District Court for the District of Connecticut. Live Nation then filed a third-party apportionment and indemnification complaint against Contemporary Services, which provided concert security. In addition, Live Nation filed an apportionment complaint against concessions operator Aramark Entertainment.

Aramark moved to strike, arguing that Live Nation failed to request court permission when the theater operator filed its apportionment complaint more than three months after filing its answer. Connecticut Gen. Stats. '52-102b(a) provides an apportionment complaint must be served within 120 days of the return date on the plaintiff's complaint. But Live Nation had timely served the apportionment complaint on Nov. 8, 2010, which was 118 days after the July 13, 2010, return date. Senior U.S District Judge Warren W. Eginton thus denied the motion to strike.

Connecticut Rule of Professional Conduct 1.9(a) provides: “A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.” Live Nation moved to disqualify Aramark Entertainment's law firm, Behman Hambelton LLP, because the firm had represented both Live Nation and Aramark in another suit. Issues in this case were substantially related to the issues in the other suit, in which Behman Hambelton allegedly obtained privileged information.

Judge Eginton granted Live Nation's motion to disqualify, noting: “Because Live Nation was a client of Behman, Behman cannot represent Aramark Entertainment in its adversarial position against Live Nation in this case.” Stenta v. Live Nation Worldwide Inc., 3:10-cv-1071.

' Stan Soocher