Musial v Donohue 2024 NY Slip Op 01414 Decided on March 15, 2024 Appellate Division, Fourth Department is a law school example of the territorial effect of jurisdiction and due process. A Texas law firm prosecutes a Texas motor vehicle accident in Texas, and is not subject to a New York legal malpractice case for that work.

“Memorandum: Plaintiffs, who reside in New York, commenced this breach of contract and legal malpractice action against Texas attorney Russell Button, Esq., and his law firm, the Button Law Firm, PLLC (collectively, Button defendants), as well as New York attorneys David C. Donohue, Esq., Barry J. Donohue, Esq., and John F. Donohue, Esq., and their law firm, Donohue Law Offices (collectively, Donohue defendants). Plaintiffs allege that defendants failed to provide them with adequate legal representation with respect to claims arising from a motor vehicle accident that occurred in Texas. In appeal No. 1, plaintiffs appeal from an order that granted the Button defendants’ motion to dismiss the complaint against them for lack of personal jurisdiction. In appeal No. 2, plaintiffs appeal from an order that denied their motion seeking, inter alia, to strike the note of issue or obtain post-note of issue discovery.

With respect to appeal No. 1, we reject plaintiffs’ contention that the Button defendants are subject to long-arm jurisdiction in New York. Under CPLR 302 (a) (1), ” ‘a court may exercise personal jurisdiction over any non-domiciliary . . . who in person or through an agent . . . transacts any business within the state’ ” (People v Frisco Mktg. of NY LLC, 93 AD3d 1352, 1353 [4th Dept 2012]). “Jurisdiction can attach on the basis of one transaction, even if the defendant never enters the state, so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted” (Glazer v Socata, S.A.S., 170 AD3d 1685, 1686 [4th Dept 2019], lv denied 33 NY3d 911 [2019], quoting Fischbarg v Doucet, 9 NY3d 375, 380 [2007] [internal quotation marks omitted]). “Purposeful” activities are “those by which a defendant, through volitional acts, avails itself of the privilege of conducting activities within [New York], thus invoking the benefits and protections of its laws” (id., quoting Fischbarg, 9 NY3d at 380 [internal quotation marks omitted]; see generally Ehrenfeld v Bin Mahfouz, 9 NY3d 501, 508 [2007]). “As the party seeking to assert personal jurisdiction, the plaintiff bears the burden of proof on [that] issue” (Frisco Mktg. of NY LLC, 93 AD3d at 1353 [internal quotation marks omitted]).

Here, plaintiffs failed to show that the Button defendants purposefully availed themselves of the privilege of conducting activities in New York so as to subject them to long-arm jurisdiction pursuant to CPLR 302 (a) (1), inasmuch as the Button defendants “never entered [*2]New York, [were] solicited . . . to perform services outside of New York, . . . performed outside of New York such services as were performed, and [are] alleged [only] to have neglected to perform other services outside of New York” (Mayes v Leipziger, 674 F2d 178, 185 [2d Cir 1982]; see Bloomgarden v Lanza, 143 AD3d 850, 852 [2d Dept 2016]), and the documentary evidence belies the conclusory allegations of plaintiffs’ counsel that the Button defendants actively solicited referrals in New York (cfFischbarg, 9 NY3d at 377; see generally Eberhardt v G & J Contr., Inc., 188 AD3d 1653, 1654 [4th Dept 2020]; Peters v Peters, 101 AD3d 403, 403-404 [1st Dept 2012]). Even accepting as true the allegations set forth in the complaint and in the opposition to the motion to dismiss, and according plaintiffs the benefit of every favorable inference (see Bloomgarden, 143 AD3d at 851), we conclude that, although plaintiffs signed the Button defendants’ retainer agreement in New York and were in New York while on a telephone conference call with defendant Russell Button, who was in Texas at the time, this occurred during the course of the Button defendants’ performance of legal services in Texas and because plaintiffs were New York domiciliaries, not because the Button defendants were purposefully engaging in any business activities in New York (see id. at 852; cfState of New York v Vayu, Inc., 39 NY3d 330, 332-335 [2023]).

Plaintiffs also failed to make a prima facie showing of long-arm jurisdiction over the Button defendants pursuant to CPLR 302 (a) (3), inasmuch as plaintiffs’ alleged injuries did not occur within New York but, rather, in Texas, where the Button defendants’ alleged legal malpractice occurred (see Bloomgarden, 143 AD3d at 852; see generally Zeidan v Scott’s Dev. Co., 173 AD3d 1639, 1640 [4th Dept 2019]).”

Salus v Berke 2023 NY Slip Op 06183 [221 AD3d 1390] November 30, 2023 Appellate Division, Third Department is a case in which Plaintiff claims that the lawfirm took a fee on a recovery for which there should have been no fee. It made a Judiciary Law 487 claim which was dismissed. This case is similar in some ways to an as-yet undecided Court of Appeals case, Urias v. Buttafuoco Assc.

“Plaintiff Gregory J. Salus is the beneficiary of the residuary clause of the will of his mother (hereinafter decedent), and plaintiff Robert Russo is the executor of the estates of decedent and her husband. Salus hired defendants to represent him in two matters to settle the estates of decedent and her husband. The retainer agreement provided that defendants would receive one third of “any recovery by suit, settlement or otherwise” stemming from their representation of Salus in the matters regarding the estates. Defendants represented Salus in negotiations between Russo and Salus’ stepsisters to settle a disagreement over the allocation of an award received from decedent’s husband’s medical malpractice settlement. The negotiations resulted in Salus directly receiving $370,000 as well as $100,000 as the beneficiary of the residuary of decedent’s estate. As such, defendants included this $100,000—in addition to the $370,000—when calculating their legal fee.

Russo, in his capacity as trustee of a special needs trust established for Salus and as executor of decedent’s estate, and Salus in his individual capacity commenced this action alleging that defendants improperly calculated their legal fee pursuant to the retainer agreement because the $100,000 should not have been factored into defendants’ legal fee calculation. Accordingly, plaintiffs allege that defendants collected $31,668 to which they were not entitled pursuant to the signed retainer agreement. Plaintiffs pleaded five causes of action: breach of contract, conversion, fraud, legal malpractice and a violation of Judiciary Law § 487. Defendants filed a motion to, among other things, dismiss based upon CPLR 3211 (a) (1) and (7), which Supreme Court partially granted, dismissing the claims of conversion, fraud and legal malpractice. However, the court denied the motion as to the breach of contract and Judiciary Law § 487 claims finding that plaintiffs had sufficiently pleaded those causes of action. Defendants appeal.

Defendants contend that plaintiffs’ first cause of action alleging breach of contract must be dismissed as there is documentary evidence that conclusively establishes a defense as a matter of law. “A party may move for judgment dismissing one or more causes of action asserted against him [or her] on the ground that . . . a defense is founded upon documentary evidence” (CPLR 3211 [a] [1]). Dismissal “is appropriate where the documentary evidence utterly refutes the petitioner’s allegations, conclusively establishing a defense as a matter of law” (Matter of Lewis v Dagostino, 199 AD3d 1221, 1222 [3d Dept 2021] [internal quotation marks, brackets and citation omitted]). The defendant “ ’bears the burden of demonstrating that the proffered evidence conclusively refutes[*2][the plaintiff’s] factual allegations’ ” (id. [brackets omitted], quoting Kolchins v Evolution Mkts., Inc., 31 NY3d 100, 106 [2018]).”

“Although Supreme Court was correct that plaintiffs sufficiently pleaded the breach of contract cause of action, it erred by not considering defendants’ proffer, specifically, the retainer agreement, which conclusively establishes a defense as a matter of law. Indeed, the language in the retainer agreement is clear that defendants’ legal fee would be computed at “331/3% . . . of any recovery by suit, settlement or otherwise.” By their involvement in the March 2020 settlement, Salus was awarded not only $370,000, but also the $100,000 that, prior to defendants’ representation of Salus, would have been distributed to Salus’ [*3]stepsisters. As such, defendants submitted undisputed documentary evidence that conclusively establishes a defense as a matter of law (see Matter of Lewis v Dagostino, 199 AD3d at 1222-1223; Jenkins v Jenkins, 145 AD3d 1231, 1235-1236 [3d Dept 2016]). In light of this determination, plaintiffs’ fifth cause of action alleging a violation under Judiciary Law § 487 must also be dismissed inasmuch as the documentary evidence establishes that defendants were entitled to the full amount received under the retainer agreement. Accordingly, defendants’ proffer conclusively establishes that they did not “intentionally deceive[ ] the court or a party during the pendency of a judicial proceeding” (A.M.P. v Benjamin, 201 AD3d 50, 57 [3d Dept 2021] [internal quotation marks and citation omitted]; see Judiciary Law § 487 [1]).”

Plaintiffs who are injured on the job have two courses of action. They can claim Worker’s Compensation damages and they can also claim that a third-party is responsible for the injury. While the plaintiff may have to obtain WC permission to settle the third-party claim, and while the WC carrier may be able to claw back some portion of the WC compensation, the third-party case can still continue.

WC attorneys often handle only the WC case and decline to handle a potential third-party case. Boukari v Schwartzberg Assoc., LLC 2024 NY Slip Op 01247 Decided on March 07, 2024 Appellate Division, First Department is an example.

“Order, Supreme Court, Bronx County (Lucindo Suarez, J.), entered on or about October 24, 2022, which denied defendants Raymond Schwartzberg and Raymond Schwartzberg & Associates, PLLC’s motion to dismiss and/or for summary judgment dismissing plaintiff’s complaint alleging legal malpractice, unanimously reversed, on the law and the facts, without costs, the motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly. Appeal from order, same court and Justice, entered on or about August 30, 2023, which granted third-party defendant Haicken Law, PLLC’s motion to dismiss defendant’s third-party complaint, unanimously dismissed, without costs, as academic.

Plaintiff’s legal malpractice action should have been dismissed. Contrary to the motion court’s finding, the record conclusively established, as a matter of law, that defendants had clearly informed plaintiff during their initial meetings in May 2014, by way of unambiguous writings confirmed by plaintiff’s signature, that defendants were only assisting her in substituting counsel in a Workers’ Compensation matter and that they had declined to represent her in any personal injury action against the building owner or any third party arising from her slip and fall.

Plaintiff opposed the motion only with an attorney affirmation. She did not submit an affidavit setting forth her version of the initial conversations with defendants or any other interactions that would support her attorney’s contentions that she was under a reasonable impression that defendants had agreed to represent her on a personal injury claim or that the law firm did not clearly disclaim representation (see Zuckerman v New York, 49 NY2d 557 [1980] [an attorney affirmation is insufficient to put before the court facts of which she has no knowledge]; cfEncalada v McCarthy, Chachanover & Rosado, LLP, 160 AD3d 475 [1st Dept 2018] [the plaintiff’s testimony about his initial conversation with counsel raised issues of fact and credibility for the factfinder to decide]).

In view of the conclusive evidence establishing the absence of legal representation by defendants on any personal injury action, the court incorrectly determined that the legal malpractice claim was timely under the continuous representation doctrine (see Pace v Horowitz, 190 AD3d 619 [1st Dept 2021]; Knobel v Wei Group, LLP, 160 AD3d 409, 410 [1st Dept 2018]) and that it was factually sustainable (see Binn v Muchnick, Golieb & Golieb, P.C., 180 AD3d 598, 599 [1st Dept 2020]; Seaman v Schulte Roth & Zabel LLP, 176 AD3d 538, 539 [1st Dept 2019]).”

Colucci v Rzepka 2024 NY Slip Op 01232 Decided on March 7, 2024 Appellate Division, Third Department is Plaintiff’s last try to avoid dismissal. The AD simply finds that this appeal (probably from the final judgment) raises no new issues that were not already raised in the appeal from the summary judgment order.

“The underlying facts of this legal malpractice action are fully set forth in our prior decision wherein this Court affirmed Supreme Court’s order granting a motion by defendants Osborne Reed & Burke, LLP, Bressler & Kunze, Burke Albright Harter & Reddy, LLP and Moyer Russi & Randall, PC for summary judgment dismissing the complaint against them as time-barred (209 AD3d 1205 [3d Dept 2022], lv denied 39 NY3d 909 [2023]). Upon reviewing the record on appeal in this case, we find that the arguments raised by plaintiffs on the present appeal mirror those raised by them on their prior appeal — as does the evidence tendered in support of defendant Thomas J. Rzepka’s motion for summary judgment dismissing plaintiffs’ complaint against him and the proof submitted by plaintiffs in opposition thereto. Accordingly, as plaintiffs’ arguments and proof are indistinguishable from those previously raised, we affirm for the reasons set forth in our prior decision (id. at 1207-1208).”

It is a little difficult to understand the claims in Peterec-Tolino v Ciacci
2024 NY Slip Op 01259 Decided on March 07, 2024 Appellate Division, First Department. The legal representation was in a personal injury setting, with a workers’ compensation component as well. Plaintiff was able to settle two personal injury cases, and got a cash advance from a funder. How the law firm might have been negligently involved is opaque.

“Supreme Court properly dismissed plaintiff’s breach of fiduciary duty claim, to the extent it arises from Ciacci’s suggestion that plaintiff and his wife seek funding for their personal injury action against nonparty City of New York and related parties (see Kurtzman v Bergstol, 40 AD3d 588, 590 [2d Dept 2007]). Plaintiff’s signed agreement with the nonparty funder, selling a portion of his interest in any potential future litigation proceeds, “conclusively establishes a defense to the asserted claim as a matter of law,” as it shows that defendants did not commit any misconduct by failing to warn plaintiff of the terms of the agreement (Leon v Martinez, 84 NY2d 83, 88 [1994]; see CPLR 3211[a][1]), which plaintiff admittedly signed (see VXI Lux Holdco S.A.R.L. v SIC Holdings, LLC, 171 AD3d 189, 193 [1st Dept 2019]; Tozzi v Mack, 169 AD3d 547, 548 [1st Dept 2019], lv denied 33 NY3d 908 [2019]). Plaintiff cannot demonstrate that defendants induced him into signing (see Countrywide Home Loans, Inc. v Gibson, 157 AD3d 853, 856 [2d Dept 2018]), or that the contract was usurious or unconscionable, given that he received a cash advance and the repayment terms were contingent upon him securing a judgment or settlement (see Cash4Cases, Inc. v Brunetti, 167 AD3d 448, 449-450 [1st Dept 2018]).

Supreme Court also properly dismissed the breach of fiduciary duty claim to the extent that it arose from defendants’ legal representation of plaintiff. Since plaintiff essentially alleges that defendants “provided inadequate and ineffective representation,” the claim is “properly treated . . . as sounding in legal malpractice” (Cherry Hill Mkt. Corp. v Cozen O’Connor L.P., 118 AD3d 514, 514 [1st Dept 2014]). As for plaintiff’s proceedings before the Workers’ Compensation Board (WCB), both the Administrative Law Judge and review panel’s appeal decisions constitute documentary evidence conclusively establishing that plaintiff would not have prevailed, as those decisions were based on his claim form, statements at an independent medical evaluation, and testimony during the WCB hearing (see O’Callaghan v Brunelle, 84 AD3d 581, 581-582 [1st Dept 2011], lv denied 18 NY3d 804 [2012]). As for his first personal injury action against the City, the MTA, and related parties, the complaint fails to state a cause of action for malpractice since defendants successfully negotiated [*2]a settlement on his behalf despite an adverse finding by the WCB. As for his second personal injury action against private construction companies, of which plaintiff disclaimed knowledge until after the settlement was negotiated, the stipulation of discontinuance demonstrates that the settlement covered those companies as well, as they were represented by the same attorney who represented the City defendants in the other action and negotiated the settlement with plaintiffs (see Chic Realty 712, LLC v GSA Holding Corp., 220 AD3d 914, 915 [2d Dept 2023]).”

Channel Fabrics, Inc. v Skwiersky, Alpert & Bressler LLP 2023 NY Slip Op 06471 [222 AD3d 512] December 19, 2023 Appellate Division, First Department illustrates the varying levels of service that accountants provide, and how the all important accountant’s retainer agreement can limit liability.”

“To state a claim for accountant malpractice, a complaint must allege that there was a departure from accepted standards of practice and that the departure was a proximate cause of the injury suffered by plaintiff (D.D. Hamilton Textiles v Estate of Mate, 269 AD2d 214, 215 [1st Dept 2000]; see also Friedman v Anderson, 23 AD3d 163, 164-165 [1st Dept 2005]). An accountant’s engagement letter governs the parameters of their retention (Italia Imports v Weisberg & Lesk, 220 AD2d 226, 226-227 [1st Dept 1995]). An accountant who has been retained to perform a “review engagement” is responsible for duties more limited in scope than an accountant hired to conduct an audit (William Iselin & Co. v Mann Judd Landau, 71 NY2d 420, 424-425 [1988]).

The crux of the complaint is that defendants were negligent and committed malpractice by not discovering an alleged deficit in plaintiff’s financial statements, and by failing to report that deficit to plaintiff. However, these allegations are “utterly refute[d]” by the documentary evidence, which defined the scope of the parties’ engagement and confirmed that defendants had no such duty (Chen v Romona Keveza Collection LLC, 208 AD3d 152, 157 [1st Dept 2022] [internal quotation marks omitted]; CPLR 3211 [a] [1]).

The engagement letters specified that defendants had been retained to conduct a “review engagement”—not an audit—and that defendants’ engagement could “not be relied upon to identify or disclose any financial statement misstatements.” The engagement letters also stated that defendants would “assist in the preparation of [plaintiff’s] financial statements . . . but the responsibility for the financial statements remains with [plaintiff],” and expressly stated that defendants would not express an opinion regarding the financial statements. Thus, the engagement letters confirmed that the responsibility for discovering issues with plaintiff’s finances remained with plaintiff, not defendants.

Nor did the complaint allege facts indicating that defendants’ review engagement deviated from the accepted standards of practice. Rather, the complaint presented only conclusory allegations that defendants failed to identify errors in the financial information that plaintiff had provided to them. Plaintiff refers to vague “analytical procedures” that purportedly would have uncovered mistakes in its financial reporting, which then were to have been verified through defendant’s questioning of plaintiff (and not, as in an audit, the questioning of third parties). However, plaintiff fails to explain how engaging in “analytical procedures” would have uncovered the deficit or identify the specific “analytical procedures” that defendants [*2]should have, but did not, perform. Plaintiff has also not identified the specific errors in its accounts receivable that the analytical procedures would have supposedly revealed.”

Guliyev v Banilov & Assoc., P.C. 2023 NY Slip Op 05493 [221 AD3d 589] November 1, 2023 Appellate Division, Second Department concerns a claim that comes up a lot in potential client inquiries. Clients often say that the attorney “settled” the case without their approval, and forced them into a settlement. The general starting point in responding is that there can never be a settlement without the client signing a release. This is not always true.

“The plaintiff retained the defendants Banilov & Associates, P.C., and Nick Banilov (hereinafter together the Banilov defendants) to represent him in connection with an action to recover damages for personal injuries allegedly sustained as a result of a motor vehicle accident (hereinafter the underlying action). The defendant Harlan Wittenstein was of counsel to the Banilov defendants, assisting with the underlying action. Wittenstein negotiated a settlement with the defendants in the underlying action and conveyed to them that the plaintiff had accepted that settlement. The plaintiff thereafter terminated the Banilov defendants’ services and retained another law firm. The defendants in the underlying action moved to compel enforcement of the settlement. The plaintiff opposed, asserting that he did not authorize Wittenstein or the Banilov defendants to accept the settlement. Following a framed-issued hearing, the Supreme Court granted the motion to compel enforcement, concluding that Wittenstein and the Banilov defendants had the authority to settle the underlying action.”

“In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages” (Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 845 [2012]; see Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d 714, 716 [2022]). “The plaintiff is required to plead actual, ascertainable damages that resulted from the attorneys’ negligence” (Bua v Purcell & Ingrao, P.C., 99 AD3d at 847; see Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d at 716). “Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative” (Bua v Purcell & Ingrao, P.C., 99 AD3d at 848 [citations omitted]; see Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d at 716). Here, the complaint failed to plead specific factual allegations demonstrating that, but for the defendants’ alleged negligence, there would have been a more favorable outcome in the underlying action or that the plaintiff would not have incurred any damages (see Williams v Silverstone, 215 AD3d 787, 789 [2023]; Katsoris v Bodnar & Milone, LLP, 186 AD3d 1504, 1506 [2020]). In addition, the plaintiff is precluded by the doctrine of collateral estoppel from relitigating the issue of whether the defendants had the authority to settle the underlying action (see CPLR 3211 [a] [5]; Reid v Reid, 198 AD3d 993, 994 [2021]; Shifer v Shifer, 165 AD3d 721, 723 [2018]).

Pursuant to Judiciary Law § 487, an attorney who is “guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” is liable to the injured party for treble damages (see Cordell Marble Falls, LLC v Kelly, 191 AD3d 760, 762 [2021]). “A violation of Judiciary Law § 487 requires an intent to deceive” (Moormann v Perini & Hoerger, 65 AD3d 1106, 1108 [2009]; see Cordell Marble Falls, LLC v Kelly, 191 AD3d at 762). “Allegations regarding an act of deceit or intent to deceive must be stated with particularity” (Bill Birds, Inc. v Stein Law Firm, P.C., 164 AD3d 635, 637 [2018], affd 35 NY3d 173 [2020]; see CPLR 3016 [b]; Palmieri v Perry, Van Etten, Rozanski & Primavera, LLP, 200 AD3d 785, 787 [2021]). Here, the plaintiff’s allegations that the defendants hid true facts and acted to benefit themselves are conclusory and factually insufficient (see Palmieri v Perry, Van Etten, Rozanski & Primavera, LLP, 200 AD3d at 787; Cordell Marble Falls, LLC v Kelly, 191 AD3d at 762).”

As Rondeau v Houston 2024 NY Slip Op 00987 Decided on February 27, 2024 Appellate Division, First Department, reminds us, relief in Judiciary Law 487 is not “lightly given.”

“Order and judgment (one paper), Supreme Court, New York County (Charles E. Ramos, J.), entered on or about September 15, 2015, which, to the extent appealed from as limited by the briefs, granted defendants’ motions to dismiss, with prejudice, the claims in plaintiff’s two actions captioned Rondeau v Houston (Sup Ct, NY County, index No. 159541/2014) (the third action) and Rondeau v Dolan (Sup Ct, NY County, index No. 151239/2015) (the fourth action), and granted defendants’ motion for sanctions to the extent of enjoining plaintiff from commencing any further actions against defendants or any other individual or entity arising out of or concerning his prior lawsuits against defendants without prior written approval of the court, unanimously affirmed, with costs.

The doctrine of res judicata applies to preclude plaintiff’s claims asserted in the third action, as those claims arise out of the same transaction or series of transactions that were brought to a final conclusion in the first action by plaintiff against, among others, defendant Allan Houston (Rondeau v Houston, 2013 NY Slip Op 33363[U] [Sup Ct, NY County 2013], affd 118 AD3d 638 [1st Dept 2014], lv dismissed 24 NY3d 999 [2015]; see In re Hunter, 4 NY3d 260, 269 [2005]; Pitcock v Kasowitz, Benson, Torres & Friedman, LLP, 80 AD3d 453, 454 [1st Dept 2011], lv denied 16 NY3d 711 [2011]). Furthermore, in the third action, plaintiff failed to state a cause of action for fraud, as he did not sufficiently allege out-of-pocket losses that stemmed from any alleged fraud, but rather, asserted only speculative losses (see Lama Holding Co. v Smith Barney, 88 NY2d 413, 421 [1996]).”

“Similarly, Supreme Court providently dismissed plaintiff’s Judiciary Law § 487 claim in the fourth action. The record presents no evidence that defendants’ counsel intended to deceive this Court when they offered a characterization of plaintiff’s claims and his conduct in the litigation (see e.g. Seldon v Lewis Brisbois Bisgaard & Smith LLP, 116 AD3d 490, 491 [1st Dept 2014], lv dismissed 25 NY3d 985 [2015]).”

ondeau v Houston
2024 NY Slip Op 00987
Decided on February 27, 2024
Appellate Division, First Department

Sang Seok Na v Pulvers, Pulvers & Thompson, LLP 2024 NY Slip Op 00978
Decided on February 27, 2024 Appellate Division, First Department is the rare case of legal malpractice that has been heard in both the First and Second Departments. It is similarly rare in the number and length of cases associated with the plaintiff.

“Initially, many of plaintiff’s arguments are not reviewable by this Court as they either arise from Queens County Supreme Court orders that are not the subject of the instant notice of appeal (CPLR 5501[c]) or claims that were previously presented to, and decided by, the Appellate Division, Second Department (Sang Seok Na v Schietroma, 172 AD3d 1263, 1263 [2d Dept 2019]; Sang Seok NA v Schietroma, 163 AD3d 597, 597 [2d Dept 2018]; Sang Seok Na v Greyhound Lines, Inc., 88 AD3d 980, 981 [2d Dept 2011]; see Delgado v City of New York, 144 AD3d 46, 51 [1st Dept 2016]).

To the extent his claims are reviewable and are based on the order on appeal, we conclude that Supreme Court properly granted defendants’ motion to dismiss because the record establishes that the statute of limitations on plaintiff’s legal malpractice claim expired on April 1, 2018, and plaintiff did not initiate the instant action until, at minimum, September 25, 2019 (see CPLR 214[6]; Sharp v Ferrante Law Firm, 220 AD3d 587, 587-588 [1st Dept 2023]).

Supreme Court also properly found that plaintiff failed to sufficiently plead a claim of fraud where plaintiff’s complaint was incomprehensible, conclusory, and unsupported by any admissible evidence (see Cronos Group Ltd. v XcomIP LLC, 156 AD3d 54, 61-62 [1st Dept 2017]).”

Kaufman v Boies Schiller Flexner 2024 NY Slip Op 00804 Decided on February 15, 2024
Appellate Division, First Department is a case where a second bite at the apple fails.

Initially, “The complaint stated a limited cause of action for breach of contract against BSF. The complaint sufficiently alleged that BSF overbilled or billed for unnecessary expenses associated with attorneys not admitted to practice law in, or based out of, New York, and the documentary submissions do not utterly refute those allegations (e.g. Ullmann-Schneider v Lacher & Lovell-Taylor, P.C., 121 AD3d 415, 416 [1st Dept 2014]; Goldfarb v Hoffman, 139 AD3d 474, 475 [1st Dept 2016]; Cascardo v Dratel, 171 AD3d 561, 562 [1st Dept 2019]; see CPLR 3211 [a] [1], [7]). The complaint otherwise failed to state a cause of action for breach of contract or violation of Judiciary Law § 487 (1) (see generally Second Source Funding, LLC v Yellowstone Capital, LLC, 144 AD3d 445, 445-446 [1st Dept 2016]; Brookwood Cos., Inc. v Alston & Bird LLP, 146 AD3d 662, 669 [1st Dept 2017]; Facebook, Inc. v DLA Piper LLP [US], 134 AD3d 610, 615 [1st Dept 2015], lv denied 28 NY3d 903 [2016]; CPLR 3211 [a] [7]). We decline to modify the order for review to indicate that dismissal was without prejudice as plaintiff has not sought clarification or relief from Supreme Court in the first instance.”

This time around, the AD was troubled by the “increasingly conspiratorial spin.” “Plaintiff contends that she was not required to establish the merits of her proposed amended complaint, and that her proposed causes of action were not palpably insufficient. We have considered each of the proposed causes of action that were brought before us, and find that the motion court properly exercised its discretion in determining that those claims were palpably insufficient and clearly devoid of merit (see MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499, 500 [1st Dept 2010]; Eighth Ave. Garage Corp. v H.K.L. Realty Corp., 60 AD3d 404, 405 [1st Dept 2009], lv dismissed 12 NY3d 880 [2009]). A review of the proposed amended complaint reveals that the “new” allegations are largely a repackaging of the same allegations that had been alleged in the original complaint to recoup legal fees which were previously dismissed, and the dismissal affirmed by this Court (Kaufman v Boies Schiller Flexner, LLP, 211 AD3d 428 [1st Dept 2022]). Further, the proposed amended complaint adds an increasingly conspiratorial spin on the facts, asserting claims that are implausible on their face and otherwise clearly refuted by the record.”