Anecdotally, we believe that legal malpractice cases are dismissed on CPLR 3211 motions at a greater frequency than are other professional malpractice or other negligence cases. Here is one dismissal that was reversed, in Gale v Abramowitz . 2026 NY Slip Op 03388, June 2, 2026 Appellate Division, First Department .

“This legal malpractice action arises from defendants’ representation of plaintiff during post-judgment divorce proceedings. Plaintiff retained defendants to recover her share of profit distributions pursuant to her postnuptial agreement. Plaintiff alleges that during the proceedings, defendants negligently failed to submit into evidence tax documents that plaintiff’s expert relied on in his recommendation. As a result, the referee awarded plaintiff less than the full amount of distributions she sought, compelling her to retain new counsel. After motion practice and a hearing before Supreme Court on the distribution issue, new counsel secured the full distribution award plaintiff initially sought. Plaintiff alleges damages in the form of legal and expert fees incurred in the process.

Supreme Court should have denied defendants’ motion to dismiss the complaint because plaintiff stated a claim for legal malpractice (see RTW Retailwinds, Inc. v Colucci & Umans, 213 AD3d 509, 510 [1st Dept 2023]). Plaintiff sufficiently alleged that defendants were negligent in failing to introduce the tax documents necessary to secure the full distribution award to which she was entitled. Plaintiff also sufficiently alleged that, but for defendants’ negligence, she would not have incurred at least a portion of the attorneys’ fees she paid to secure the proper distribution award. Plaintiff may seek damages for “litigation expenses incurred in an attempt to avoid, minimize, or reduce the damage caused by [defendants’] wrongful conduct” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 443 [2007] [internal quotation marks omitted]).

The complaint states allegations from which damages attributable to defendants’ conduct may reasonably be inferred (see Fielding v Kupferman, 65 AD3d 437, 442 [1st Dept 2009]). In the complaint, plaintiff sufficiently alleges that her fee award only partially covered the actual costs she incurred in the litigation. Whether and to what extent the fee award covers the actual fees paid by plaintiff need not be determined at this stage (see Fielding, 65 AD3d at 442; see also Fletcher v Boies, Schiller & Flexner, LLP, 75 AD3d 469, 469 [1st Dept 2010]).

Defendants’ estoppel arguments are unavailing. The issues raised in this legal malpractice action were not raised in the prior post-judgment divorce proceedings (seeParker v Blauvelt Volunteer Fire Co. , 93 NY2d 343, 349 [1999]).”

Dual Diagnosis Treatment Ctr., Inc. v Yellowstone Capital W., LLC 2026 NY Slip Op 03292 May 27, 2026 Appellate Division, Second Department is one of the rare cases where Supreme Court grants a motion to dismiss a JL 487 claim and the Appellate Division reverses.

“ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the motion of the defendants Viceroy Capital Funding, Richmond Capital, Michelle D. Gregg, Robert Giardina, and Marcella G. Rabinovich which were pursuant to CPLR 3211(a) to dismiss the first, second, fourth, and fifth causes of action insofar as asserted against them, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.

The plaintiffs commenced this action to recover damages for abuse of process (fourth cause of action), violation of Judiciary Law § 487 (fifth cause of action), and violation of the Racketeer Influenced and Corrupt Organizations Act (RICO) (18 USC § 1961 et seq.) (sixth cause of action), for declaratory relief (first cause of action), an accounting (seventh cause of action), and the imposition of a constructive trust (third cause of action), and to vacate certain judgments by confession (second cause of action). The plaintiffs alleged, inter alia, that the defendants Viceroy Capital Funding (hereinafter VCF) and Richmond Capital (hereinafter RC) held themselves out as merchant cash advance (hereinafter MCA) businesses. The plaintiffs further alleged that the defendant Robert Giardina was the managing partner of VCF and RC, that the defendant Michelle D. Gregg was a principal and agent of VCF and RC, and that the defendant Marcella G. Rabinovich is an attorney who represented VCF and RC.

According to the complaint, the defendants acted in concert to “dupe” the plaintiffs “into an unconscionable series of transactions.” The plaintiffs entered into MCA agreements with VCF, among others, secured by affidavits of confession of judgment. Thereupon, Rabinovich allegedly filed judgments by confession based upon false statements made by Rabinovich and Gregg. VCF then allegedly directed a New York City Marshal to serve a restraining notice on the plaintiffs’ bank account, freezing their account, placing economic pressure on them, and causing them to execute a settlement agreement with VCF “under duress.””

“The Supreme Court also should have denied that branch of the VCF defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the fifth cause of action, which was asserted only against Rabinovich. “Judiciary Law § 487 imposes civil liability on any attorney who is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive . . . any party” (Garanin v Hiatt, 219 AD3d 958, 959 [alteration and internal quotation marks omitted]). Here, the complaint alleged that Rabinovich intentionally applied for judgments by confession with false supporting affidavits and acted upon those judgments by confession when the plaintiffs had not defaulted, falsely claimed that she no longer represented certain parties when the plaintiffs demanded an accounting, and knowingly colluded with the other defendants to commit “fraud on the Court” and to obtain funds from the plaintiffs that exceeded any amount lawfully owed. Thus, accepting the allegations in the complaint as true and according the plaintiffs the benefit of every possible favorable inference, the complaint adequately stated a cause of action against Rabinovich to recover damages for violation of Judiciary Law § 487 (see Garanin v Hiatt, 219 AD3d at 959).”

In Matter of Mpow Tech. Co., Ltd. v Amazon.com Servs., LLC 2026 NY Slip Op 03273, Decided and Entered: May 26, 2026

Index No. 652815/25|Appeal No. 6723|Case No. 2025-05067|(1st Dept 2026), the errors of the attorney are laid against the attorney, with the Court noting that the client has started a legal malpractice case against the attorney.

“Supreme Court properly denied the petition and confirmed the arbitration award because petitioner failed to demonstrate that the arbitrator exceeded his power or that the award violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power (CPLR 7511[b], [e]; see Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 481 [2006], cert dismissed 548 US 940 [2006]).

Citing governing law, the arbitrator determined that the parties’ voluntary stipulation of dismissal with prejudice of the previous arbitration based on identical claims constituted a final adjudication on the merits, and thus res judicata applied to bar the instant arbitration. The arbitrator further reasoned that any allegations that petitioner’s counsel in the prior arbitration did not have the authority to permanently dismiss the proceeding on petitioner’s behalf did not undermine the preclusive effect of that stipulation, noting that petitioner had commenced a legal malpractice action against its former counsel to pursue those claims. Accordingly, the arbitrator’s analysis demonstrates that the award had a colorable basis for its conclusion (see Matter of Mariana Trading, Inc. v Amazon.Com Servs., LLC, 231 AD3d 483, 484 [1st Dept 2024], quoting Wien & Malkin, 6 NY3d at 479-448).”

May 26, 2026

Appellate Division, First Department

Estate of Brook v Ruotolo 2026 NY Slip Op 32036(U) May 11, 2026
Supreme Court, New York County Docket Number: Index No. 805045/2024
Judge: John J. Kelley reads like a movie. Well off mother and father engage in proper estate planning, husband and son become successor-attorneys-in-fact with healthcare proxies only to have an uncle come in and take over.

In this action to recover damages for violation of the New York Constitution, wrongful
death, a survival claim for the decedent’s conscious pain and suffering, breach of fiduciary duty, medical and legal malpractice, fraudulent billing, unjust enrichment, violation of Judiciary Law § 487, fraud on the court, and negligent infliction of emotional distress, the defendant Allen Logerquist, M.D., moves pursuant to CPLR 3211(a)(5), CPLR 214-a, and EPTL 5-4.1 to dismiss the complaint insofar as asserted against him as time-barred. The plaintiffs oppose the motion.

The motion is denied.
The complaint alleged the following facts. The crux of this action involves the care and
treatment of the decedent, Judith Brook, who was a researcher and professor of psychiatry. On June 15, 2006, as a part of her estate planning, the decedent appointed her husband as her attorney-in-fact and healthcare proxy, and further appointed her two sons, including the plaintiff Adam Brook, M.D. (Brook), as successor attorneys-in-fact and healthcare proxies in the event that her husband could not serve in those capacities. Thereafter, the decedent’s other son, that is, the plaintiff’s brother, died in 2015, while the decedent’s husband died in 2018, leaving Brook as the sole attorney-in-fact and healthcare proxy. The decedent’s will left the majority of her $8 million dollar estate to Brook and his two nieces. The decedent also had a brother, the defendant Howard Muser, but her will left only small bequests to Muser and his children, and
nothing for Muser’s wife.
In September 2018, the decedent sustained a spinal fracture and underwent a balloon
kyphoplasty procedure to alleviate the pain. Thereafter, she suffered a second spinal fracture, and the medication prescribed to treat her resultant pain left her in a coma for three days. Once awake, the decedent was discharged to the Riverside Premier Rehabilitation and Healing Center (hereinafter Riverside). The decedent remained at Riverside, due to other medical complications, until her discharge in May 2019, at which time Riverside recommended that she have supervision while at home for 24 hours each day, 7 days per week. On May 9, 2019, Muser filed a petition in the Supreme Court, New York County (the petition), to have the decedent declared incapacitated, void Brook’s power of attorney and healthcare proxy, and have Muser and his wife appointed as guardian and successor guardian, respectively. Muser’s son-in-law, the defendant Ian Shainbrown, and Shainbrown’s colleague and friend, the defendant Karl Huth—through their respective law firms, the defendants The Shainbrown Firm, LLC, and Huth, Reynolds, LLP—prepared and filed the petition. The petition alleged that Brook
was misappropriating his mother’s wealth and withholding medical treatment and support from her, that, while the decedent was incapacitated, Brook had forced her to execute documents granting him total control of her personal and property management, and that Brook had refused Muser’s repeated requests over a period of five months to discuss the nature of those documents. It further alleged that the decedent was “distraught” over Brook’s conduct, and wanted Muser to intervene. The petition also sought the appointment of a temporary guardian while the guardianship matter was finally resolved.
On May 16, 2019, Justice Kelly O’Neill-Levy heard the petition, and signed an order to
show cause appointing Mental Hygiene Legal Services (MHLS) to represent the decedent, and Margaret Crowley, Esq., as a court evaluator. The defendants Diane Rosenthal, Esq., and Felice Wechsler, Esq., of MHLS (together with MHLS, the MHLS Defendants), served as the decedent’s court-appointed attorneys. On May 28, 2019, Justice O’Neill-Levy also appointed the defendant Joseph Ruotolo, Esq., to serve as the decedent’s temporary guardian, and expanded Ruotolo’s powers on May 30, 2019. On May 29, 2019, Ruotolo, in his first act as temporary guardian, canceled the decedent’s impending discharge from Riverside. The decedent was eventually discharged to her home at some time in early-to-mid June 2019, and Ruotolo appointed the defendant Allegiant Home Care, LLP (Allegiant) to provide homecare services to the decedent, including home health aides and nurses.”

“Thereafter, Justice O’Neill-Levy presided over hearings on the petition on July 1, 2019
and September 6, 2019, and conducted a trial on October 18, 2019. On January 3, 2020,
Justice O’Neill-Levy terminated Brook’s power of attorney and healthcare proxy, and expanded Ruotolo’s guardianship powers over the decedent and her property. Brook alleged that, on January 6, 2020, no nurse came to administer his mother’s medication to her, so he administered it himself. On January 11, 2020, Ruotolo filed a police report against Brook alleging that Brook was interfering with his mother’s medication. On January 12, 2020, the decedent became ill from a purported mishandling of her medication, and was taken to New York Presbyterian Weill-Cornell Hospital (NYPH) by ambulance. On January 17, 2020, the decedent was discharged from NYPH and, at the direction of Ruotolo, was sent to the defendant Mary Manning Walsh Nursing Home (MMW) over the decedent’s objections. MMW contracted with defendant Monitor/me, LLC, to provide telemedicine services to MMW patients.

On January 21, 2020, the decedent experienced a seizure, became unresponsive, and lost consciousness, for which she was administered cardiopulmonary resuscitation at MMW, and then taken by ambulance to NYPH’s emergency room. On February 5, 2020, at Ruotolo’s direction, the decedent returned to MMW upon her discharge from NYPH, although she had difficulty breathing and was ultimately returned to NYPH and readmitted that same day.
On January 31, 2020, MHLS requested to vacate its appointment as counsel for the
decedent, a request that Justice O’Neill-Levy granted on February 6, 2020, upon which she named the defendant Kenneth Barocas, Esq., as successor counsel. On February 14, 2020, Barocas, allegedly without having ever spoken to the decedent, supported Ruotolo’s requests to expand his guardianship powers to allow the decedent to be involuntarily placed in hospice care and to prevent NYPH physicians from speaking with Brook regarding the decedent’s medical condition or care. Justice O’Neill-Levy granted Barocas’s request. On February 15, 2020, Brook found the decedent unresponsive at NYPH, and the medical staff there discovered that the decedent had experienced another gastrointestinal bleed, which they treated. The decedent regained consciousness the next day, but fell back into a coma the day after that. The decedent never recovered from her coma, and died while still at NYPH on March 15, 2020. On February 17, 2021, letters testamentary were issued to Brook, and he was appointed co-executor of the decedent’s estate, along with Nicole Hazard Brook, Esq.”

THE DISCUSSION ON THE FEDERAL LITIGATION AND THE INTERPLAY OF CPLR 205 CPLR 214-a, EPTL 5-4.1 AND THE COVID TOLL IS TOO LONG TO BE REPODUCED HERE.

As is so familiar, legal malpractice cases based upon negligent estate planning often founder on the time lapse between the negligent advice and the unfavorable outcome of that advice. Chester v List 2026 NY Slip Op 02962 May 13, 2026 Appellate Division, Second Department is an example.

“On May 31, 2024, the plaintiff commenced this action against the defendant, inter alia, to recover damages for legal malpractice. The plaintiff alleged, among other things, that her mother, Julia Mallico, and her stepfather, John Mallico, engaged the defendant attorney in 2008 to create a trust to hold title to certain real property owned by Julia Mallico and John Mallico for the exclusive benefit of the plaintiff. The plaintiff further alleged that the defendant, among other things, failed to correctly draft the trust agreement in accordance with the prevailing estate plan, resulting in John Mallico, rather than the plaintiff, obtaining a testamentary power of appointment, which enabled John Mallico to subsequently create a new estate plan to deprive the plaintiff of her entitlement to the property that was the subject of the trust.

Thereafter, the defendant moved pursuant to CPLR 3211(a) to dismiss the complaint, inter alia, as time-barred and for failure to state a cause of action. The plaintiff opposed the motion. In an order dated January 21, 2025, the Supreme Court granted the defendant’s motion. The plaintiff appeals.

“On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. If the defendant meets this initial burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations has been tolled, an exception to the limitations period is applicable, or the plaintiff actually commenced the action within the applicable limitations period” (Wells Fargo Bank, N.A. v Leopold & Assoc., PLLC, 238 AD3d 1195, 1196 [citation and internal quotation marks omitted]).

“The statute of limitations for a cause of action to recover damages for legal malpractice is three years, which accrues at the time the malpractice is committed, not when the client discovers it” (Kreutzberg v Law Offs. of John Riconda, P.C., 210 AD3d 884, 884-885 [citations omitted]; see CPLR 214[6]). “However, causes of action alleging legal malpractice which would otherwise be barred by the statute of limitations are timely if the doctrine of continuous representation applies” (Wells Fargo Bank, N.A. v Leopold & Assoc., PLLC, 238 AD3d at 1196 [internal quotation marks omitted]). “For the continuous representation doctrine to apply, there must be clear indicia of an ongoing, continuous, developing, and dependant relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice” (Dellwood Dev., Ltd. v Coffinas Law Firm, PLLC, 233 AD3d 752, 753 [internal quotation marks omitted]).

Here, to the extent that the complaint alleged legal malpractice based on the defendant’s failure to correctly draft or review the trust, failure to instruct John Mallico of his obligations under the estate plan and trust, failure “to advise or otherwise protect” the plaintiff’s interests in the estate plan, and engagement in a “conflicted representation as attorney for Plaintiff while advising [John] Mallico concerning his divergent individual interests,” the defendant established, prima facie, that those allegations were time-barred (see Lambro Indus., Inc. v Gilbert, 233 AD3d 765, 768; King Tower Realty Corp. v G & G Funding Corp., 163 AD3d 541, 543-544). In opposition to the defendant’s prima facie showing, the plaintiff failed to raise a question of fact as to whether the continuous representation tolled the applicable statute of limitations based on the defendant’s alleged intermittent representation of the plaintiff (see Byron Chem. Co., Inc. v Groman, 61 AD3d 909, 911). Contrary to the plaintiff’s contention, she failed to establish that the defendant was engaged in efforts to rectify his mistake in drafting the trust so as to raise a question of fact as to the applicability of the continuous representation doctrine (cf. DeStaso v Condon Resnick, LLP, 90 AD3d 809, 813). Moreover, the plaintiff failed to raise a question of fact as to the applicability of the continuous representation doctrine based on her allegations that the defendant provided legal services to her in connection with her listing the property for sale, which involved distinct services from the defendant’s prior services to create the trust (see Goodman v Weiss, Zarett, Brofman, Sonnenklar & Levy, P.C., 199 AD3d 659, 662). Accordingly, the Supreme Court properly granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a) to dismiss the aforementioned allegations as time-barred.”

We discussed Zabit v Brandometry, LLC 2026 NY Slip Op 31752(U) April 16, 2026
Supreme Court, New York County Docket Number: Index No. 656563/2021
Judge: Emily Morales-Minerva on Monday. Here is the balance of the decision.

“In this action, as undisputed at oral argument, the causes of action plaintiffs assert against law firm and attorney are as follows: (1) fraud, (2) aiding and abetting fraud, (3)
fraudulent misrepresentation, (4) fraudulent concealment, (5) aiding and abetting breach of fiduciary duty, (6) tortious interference with contract (7) civil conspiracy, and (8) legal malpractice.”

“”The elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and
(3) damages directly caused by the defendant’s misconduct” (Baldeo v Majeed, 150 AD3d 942, 945 [2d Dept 2017], citing Dehlinger v Sani-Pine Prods. Co., Inc., 107 AD3d 659, 660 [2d Dept 2013] and Rut v Young Adult Inst., Inc., 74 AD3d 776, 777 [2d Dept 2010]). “A claim for aiding and abetting a breach of fiduciary duty requires: (1) [that a fiduciary breach its] obligations to another, (2) that the defendant knowingly induced
or participated in the breach, and (3) that plaintiff suffered damage as a result of the breach” (Baldeo, 150 AD3d at 946 [quotations and citations omitted]).

Here, as set forth above, the pleadings on their face lack any alleged facts which, accepted as true, leads to a reasonable inference that law firm and attorney “knowingly induced or participated” in Medin’s alleged breach of fiduciary duty to Zabit (see generally Sander v Winship, 57 NY2d 391, 394 [1982] [“a court is to take [allegations] as true and resolve all inferences which reasonably flow therefrom in favor of the
pleader”]; see also Leon v Martinez, 84 NY2d 83, 87 (1994]). Plaintiffs plead this element in a conclusory manner and, as all elements of this cause of action must be sufficiently pled, the Court finds it unnecessary to discuss the remaining prongs.”

“To state a cause of action for tortious interference with a contract, a plaintiff must demonstrate “the existence of a valid contract between the plaintiff and a third party, defendant’s knowledge of that contract, defendant’s intentional procurement
of the third party’s breach of the contract without justification, actual breach of the contract, and damages resulting therefrom” (330 Acquisition Co., LLC v Regency Savings
Bank, F.S.B., 293 AD2d 314, 315 [1st Dept 2002), quoting Lama Holding Co. v Smith Barney, Inc., 88 NY2d 413, 424 (1996]).

Plaintiffs do not allege anywhere in the complaint that law firm and attorney intentionally caused a breach of any of the agreements between plaintiffs and third parties. Nor do the allegations permit a reasonable inference of such. Therefore,
this cause of action is dismissed.”

“”In assessing the adequacy of a claim of … attorney malpractice, a court must first look to the relationship of the parties. [If] the relationship of the parties fails to reveal
actual privity or a relationship that otherwise closely resembles privity, no cause of action exists for negligent misrepresentation” (AG Capital Funding Partners, L.P. v. State
St. Bank & Trust Co., 5 NY3d 582, 595 [2005]). However, if the alleged malpractice is based on allegations of “fraud, collusion, malicious acts or other special circumstances”
privity is not necessary for a plaintiff to maintain the claim (id. at 595).

Here, plaintiffs do not dispute that no privity exists between them, law firm and attorney (NYSCEF Doc. No. 01, Summons and Complaint, 1 44 [“Bacon Law Group was retained by BTI to create various LLC agreements, amendments and contracts”]; see
also NYSCEF Doc. No. 09, exhibit F to summons and complaint, Engagement for Legal Services between BTI and Thomas C. Bacon and Bacon Law Group, 11 [“Our client(s): terms of engagement as well as of existing and future engagements. This Agreement
governs our (law firm and attorney’s) representation of you (BTI) and not of any other party, including any of your parent, subsidiary, affiliate or related persons … unless such party is named in the preceding paragraph” which only names BTI]
[emphasis in original]; NYSCEF Doc. No. 28, plaintiffs’ opposition to motion to dismiss, p 19 [“Zabit agrees he was never in direct privity with Bacon Law Group or Bacon himself
.”]).
Indeed, they go as far as highlighting that plaintiff William Zabit “never reviewed, discussed or signed [the engagement letter] and did not know that it existed” and that
“[t]he Bacon defendants [law firm and attorney] acknowledge that plaintiffs [William Zabit and Brandtransact Worldwide, Inc.] did not have an attorney-client relationship with them” (NYSEF Doc. No. 28, plaintiffs’ opposition to the Bacon motion to dismiss,
at 23). Plaintiffs do not even appear to assert attorney-client engagement by relationship to BTI, contending that there would need to be discovery in regard to any agency or intended benefit In any event, as law firm and attorney did not represent
Zabit individually and BTWW in any capacity, there is no dispute that the engagement letter between BTI, law firm and attorneyprovides that any malpractice claim shall be subject to arbitration in California….”

A very familiar situation in legal malpractice is where one member of an LLC sues the law firm over its representation of the LLC to the member’s detriment. Often the law firm has been hired solely by the LLC and the member believes that the law firm is protecting the member’s interests. Zabit v Brandometry, LLC 2026 NY Slip Op 31752(U)
April 16, 2026 Supreme Court, New York County Docket Number: Index No. 656563/2021 Judge: Emily Morales-Minerva is such a case.

In this motion {seq. no. 001), defendant BACON LAW GROUP {law firm) and its principal defendant THOMAS C. BACON {attorney) move to dismiss the complaint against them for lack of personal jurisdiction {see CPLR § 3211 [a] [8]). In the alternative, law firm and attorney move to dismiss the complaint for failure to state a cause of action {see CPLR § 3211 [a] [7] ) .
Plaintiffs WILLIAM ZABIT and BRANDTRANSACT WORLDWIDE INC. oppose this application in its entirety, arguing that the Court has jurisdiction over law firm and attorney, pursuant to New York State’s long-arm statute {see CPLR § 302 [a] [1]) and that
they have sufficiently pled their causes of action against these defendants.”

“In the case at bar, plaintiffs have established all the above criteria as against defendants BACON LAW GROUP (law firm) and THOMAS C. BACON (attorney), law firm’s principal. It is undisputed that law firm and attorney functioned as retained counsel for defendant BRANDTRANSACT INVESTMENTS, LLC (BTI), which defendant LARRY A. MEDIN (Medin), and plaintiff WILLIAM ZABIT (Zabit) established and owned together; BTI has offices in New York, NY, and both Medin and Zabit work and reside here.

As counsel to BTI, law firm and attorney actively participated, from California, in phone calls with BTI, and with Medin and Zabit, while these clients were in this state. In
their capacity as counsel, defendants provided, among other things, their advice and input on negotiations involving the restructuring of BTI and Medin’s and Zabit’s ownership shares in BTI.”

“In this action, as undisputed at oral argument, the causes of action plaintiffs assert against law firm and attorney are as follows: (1) fraud, (2) aiding and abetting fraud, (3)
fraudulent misrepresentation, (4) fraudulent concealment, (5) aiding and abetting breach of fiduciary duty, (6) tortious interference with contract (7) civil conspiracy, and (8) legal malpractice.”

“In support of this fraud claim against BTI, plaintiffs assert that counsel knew Medin’s statement(s) to law firm and attorney were false and/or that law firm and attorney knew that Medin was providing false information, if any, to Zabit and engaging in a scheme to take BTI, among other things, from Zabit. However, there are no alleged facts to support this conclusory narrative. For example, plaintiffs’ allegations do not include direct communication of admitted falsity or documentary contradictions made to counsel, disproving anything Medin may have relayed to law firm or attorney or admissions and/or any specific circumstances showing counsel participated
in the crafting or perpetuating of a knowingly false narrative.

To the extent that plaintiffs appear to rely on the law firm and attorney’s representation of BTI and their drafting of such legal documents to set forth a cause of fraud, these
facts alone do not permit an inference of misconduct. Indeed, to find otherwise would improperly conflate legal representation with participation in wrongdoing and expose virtually allcounsel to liability based solely on their role as advocates.”

(to be continued)

The main lesson of Bruce v Solny 2026 NY Slip Op 02815 May 6, 2026 Appellate Division, Second Department is that an amended complaint renders the initial complaint “superseded” and no longer may be appealed. Amendment of the complaint occurs often in early motion practice after defendants make a CPLR 3211 motion.

“This action arises from an allegedly fraudulent scheme whereby the plaintiff was tricked into giving up title to her home. The plaintiff alleged that she and her husband transferred title to their home, which was in the midst of a foreclosure action, to the defendant E 29 St Realty, Inc. (hereinafter E 29 St Realty), upon a false promise that the defendants Sanford Solny, Shandelle Solny, and A to Z Management I Corp. and E 29 St Realty (hereinafter collectively the Solny defendants) would pay off the mortgage. The plaintiff alleged that the Solny defendants’ goal was to install tenants and collect as much rent as possible. She alleged that Sanford Solny and Shandelle Solny have been involved in similar fraudulent schemes in the past. The plaintiff further alleged that the defendants Abraham Hoschander, Abraham Hoschander & Associates, PLLC, Avinoam Rosenfeld, and Rosenfeld Law Office, PLLC (hereinafter collectively the attorney defendants), who were close associates of the Solny defendants, used the court to delay the foreclosure action as long as possible so that the Solny defendants could continue to collect rent. The attorney defendants allegedly did this by misrepresenting to the court and opposing counsel that they represented the plaintiff and failing to advise the plaintiff of her rights or the Solny defendants’ obligations toward the property. The complaint asserted 15 causes of action, including, inter alia, causes of action alleging fraud, violations of the Home Equity Theft Prevention Act (Real Property Law § 265-a) and General Business Law § 349, negligent misrepresentation, unjust enrichment, and legal malpractice.

The Solny defendants moved, among other things, pursuant to CPLR 3211(a)(5) to dismiss the complaint insofar as asserted against them on the grounds that the action was barred by a release and by the statute of limitations and, in effect, pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging a violation of General Business Law § 349 insofar as asserted against them for failure to state a cause of action. The plaintiff cross-moved to compel E 29 St Realty to transfer title to the property to the plaintiff, to deliver all of the rent collected from the property since March 2014 to the plaintiff, and to provide the plaintiff with all records concerning the property. The attorney defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against them. In an order dated December 8, 2020, the Supreme Court, among other things, denied that branch of the Solny defendants’ motion which was pursuant to CPLR 3211(a)(5) and, in effect, (7) to dismiss the complaint insofar as asserted against them, denied the plaintiff’s cross-motion, and denied the attorney defendants’ motion. The Solny defendants and the attorney defendants separately appeal, and the plaintiff cross-appeals.

In January 2021, the plaintiff filed an amended complaint, which added new causes of action and new factual allegations. The plaintiff moves, inter alia, to dismiss the appeals of the Solny defendants and the attorney defendants on the ground that the appeals have been rendered academic in light of the amended complaint. The plaintiff’s submissions in support of her motion reflect that the Solny defendants and the attorney defendants have each answered the amended complaint, the attorney defendants unsuccessfully moved to dismiss the amended complaint insofar as asserted against them, and the plaintiff successfully moved to dismiss, among other things, an affirmative defense in the Solny defendants’ answer to the amended complaint relating to the amended cause of action alleging a violation of General Business Law § 349.

Contrary to the contentions of the Solny defendants and the attorney defendants, the new allegations in the amended complaint substantively alter the causes of action in the original complaint (cf. Doe v Ascend Charter Schs., 181 AD3d 648; Grant v DiFeo, 165 AD3d 897, 898). Accordingly, since the original complaint has been superseded by the amended complaint, the Solny defendants’ and the attorney defendants’ challenges to so much of the order dated December 8, 2020, as denied dismissal of the original complaint insofar as asserted against each of them have been rendered academic, and the appeals therefrom must be dismissed (see Oppedisano v D’Agostino, 196 AD3d 500, 501; Jeffrey Gardens Apt. Corp. v LH Mgt., Inc., 157 AD3d 941, 942).”