Getty v Schiavetta 2024 NY Slip Op 50697(U) Decided on May 18, 2024 Supreme Court, Westchester County Ondrovic, J. is a factually simple pro-se legal malpractice litigation with an interesting procedural twist. The legal malpractice claim comes after a mediated settlement. The issue is whether the attorney misled the client into thinking that the settlement provided a cash payment as well as promised repairs to a water-damaged apartment.

“In an action to recover damages for alleged legal malpractice, pro se plaintiff moves for an order granting default judgment against Russo & Gould LLP and Russo & Toner LLP (collectively, Russo defendants) (Motion Seq. 1), Russo defendants cross-move for an order extending their time to appear in the action (Motion Seq. 2), and Daniel M. Schiavetta, Jr and Murphy Higgins & Schiavetta, PLLC (collectively, Schiavetta defendants) cross-move to dismiss the complaint pursuant to CPLR 3211(a)(1) and (a)(7) (Motion Seq. 3).”

“By way of background, pro se plaintiff commenced this action by filing a summons and complaint on September 24, 2023, to recover damages for alleged legal malpractice. The complaint asserts claims for legal malpractice and violation of Judicial Law § 487. Plaintiff alleges that defendants committed legal malpractice in their representation of plaintiff in prior litigations for damages stemming from mold contamination in plaintiff’s cooperative unit located in Port Chester, New York.[FN1] The parties in the underlying litigations participated in private mediation and the litigations were settled by agreement in October 2020 (Settlement Agreement). Plaintiff alleges that he agreed to settlement terms on August 11, 2020, but defendants had “put plaintiff against a wall” and left “him with no choice but to agree to a different settlement” (i.e., the Settlement Agreement) (complaint at 4-5 [NYSCEF Doc. 1]).”

“Here, the complaint fails to allege facts establishing proximate cause, namely, that the defendants in the prior litigations would have executed an agreement requiring them to pay more than what was agreed to in the Settlement Agreement or to additionally repair plaintiff’s cooperative unit at their own expense. Moreover, the complaint fails to allege fraud with any particularity (see CPLR 3016[b]; see Browne v Lyft, Inc., 219 AD3d 445, 447 [2d Dept 2023]; Shah v Mitra, 171 ADed 971, 976 [2d Dept 2019]). These deficiencies warrant dismissal of the legal malpractice claim pursuant to CPLR 3211(a)(7), but the latter deficiency is also fatal to plaintiff’s opposition to relief pursuant to CPLR 3211(a)(1) premised on plaintiff’s execution of the Settlement Agreement.

The Settlement Agreement, signed by plaintiff, includes the following representation attributed to plaintiff as the releasor:

Releasor hereby declares that the terms of this Release have been completely read and are fully understood and voluntarily accepted for the purpose of making a full and final settlement of any and all claims (exhibit B to Oxenburg affirmation, Settlement Agreement at 3 [NYSCEF Doc. 49] [emphasis added]).

Given that the Settlement Agreement declares plaintiff “voluntarily accepted” the terms of the agreement, absent a sufficient pleading of fraud, coercion, or inducement, the Settlement Agreement utterly refutes plaintiff’s factual allegations (Miller v Brunner, 164 AD3d 1228, 1231 [2d Dept 2018] [“A signed release shifts the burden of going forward . . . to the plaintiff to show that there has been fraud, duress or some other fact which will be sufficient to void the release” [internal quotation marks, brackets, and citation omitted]).”

“Accordingly, Schiavetta defendants’ cross-motion for an order dismissing the complaint pursuant to CPLR 3211(a)(1) and (a)(7) is GRANTED, but as the dismissal is due to deficiencies in the pleading, the dismissal will be without prejudice (see Cadet-Duval v Gursim Holding, Inc., 147 AD3d 718, 720 [2d Dept 2017]).”

Sciocchetti v Molinsek 2024 NY Slip Op 00116 [223 AD3d 1046] January 11, 2024
Appellate Division, Third Department is a case in which husband sues wife’s attorney on the theory that attorney and wife had a romantic relationship and worked together to hurt the husband financially. It does not succeed as a Judiciary Law 487 claim.

“Plaintiffs commenced this action on April 22, 2022, alleging claims under Judiciary Law § 487 related to a divorce action involving plaintiff Andrew Sciocchetti and his now-former wife (hereinafter the wife). Plaintiffs alleged in the complaint, among other things, that defendant, the wife’s attorney in the divorce action, made false representations in the divorce action, that defendant failed to disclose that he and the wife were romantically involved during the divorce action and that defendant wilfully delayed the divorce action for personal gain. In a pre-answer motion, defendant moved to dismiss the complaint under CPLR 3211 (a) (7). Supreme Court granted the motion. This appeal by plaintiffs ensued.

Assuming, without deciding, that plaintiffs’ claims under Judiciary Law § 487 are timely, Supreme Court correctly granted defendant’s motion. When presented with a motion to dismiss under CPLR 3211 (a) (7), “the court must accept the facts as alleged in the complaint as true, accord the nonmoving party the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Brown v University of Rochester, 216 AD3d 1328, 1330 [3d Dept 2023] [internal quotations marks, brackets and citation omitted]). That said, a plaintiff may recover treble damages if the defendant “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” (Judiciary Law § 487 [1]; see Hansen v Caffry, 280 AD2d 704, 705 [3d Dept 2001], lv denied 97 NY2d 603 [2001]). As to a claim under Judiciary Law § 487 (1), “[a]llegations regarding an act of deceit or intent to deceive must be stated with particularity” (Facebook, Inc. v DLA Piper LLP [US], 134 AD3d 610, 615 [1st Dept 2015], lv denied 28 NY3d 903 [2016]). Additionally, “to state a cause of action alleging a violation of Judiciary Law § 487, the plaintiff must plead allegations from which damages attributable to the defendant[‘s] conduct might be reasonably inferred” (Maroulis v Sari M. Friedman, P.C., 153 AD3d 1250, 1252 [2d Dept 2017] [internal quotation marks and citations omitted]; see Havell v Islam, 292 AD2d 210, 210 [1st Dept 2002]).

The alleged deceit by defendant centers on the undisclosed romantic relationship between defendant and the wife during the divorce action. Plaintiffs, however, failed to sufficiently plead how the concealment of this relationship caused plaintiffs any damages or led to any adverse rulings in the divorce action (see Saporito v Branda, 213 AD3d 588, 589 [1st Dept 2023]; DeMartino v Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, 189 AD3d 774, 776 [2d Dept 2020]; Jean v Chinitz, 163 AD3d 497, 497 [1st Dept 2018]; cf. Tenore v Kantrowitz, Goldhamer & Graifman, P.C., 121 AD3d [*2]775, 776 [2d Dept 2014]). Plaintiffs maintain that Sciocchetti incurred additional legal fees in the divorce action, but failed to allege how such fees were attributable to defendant’s concealment of the relationship with the wife (see Mizuno v Barak, 113 AD3d 825, 827 [2d Dept 2014]). Furthermore, although plaintiffs alleged that defendant’s deceit resulted in fraudulent statements of net worth being filed, thereby forcing Sciocchetti to pay more financial support than was required, plaintiffs acknowledged that any error was corrected at the divorce trial. If anything, the allegations of a romantic relationship between defendant and the wife and the failure to disclose that relationship potentially compromised defendant’s representation of the wife and would give rise to a Judiciary Law § 487 claim by the wife (see e.g. A.M.P. v Benjamin, 201 AD3d 50, 57 [3d Dept 2021]).

Plaintiffs also argue that they stated a claim under Judiciary Law § 487 (2), which provides that recovery may be had when an attorney “[w]ilfully delays [the] client’s suit with a view to his [or her] own gain; or wilfully receives any money or allowance for or on account of any money which he [or she] has not laid out, or becomes answerable for.” Plaintiffs, however, only alleged in a conclusory manner that defendant wilfully delayed the underlying divorce action. Moreover, even accepting as true that defendant was contentious during the divorce action, took unreasonable settlement positions or engaged in protracted postjudgment divorce litigation, such behavior did not exceed the bounds of advocacy in a divorce action so as to constitute wilful delay within the meaning of Judiciary Law § 487 (2). The allegation that defendant failed to timely file the note of issue in the divorce action likewise did not amount to wilful delay. Accordingly, dismissal of the complaint for failure to state a cause of action was correct.”

Lutin v Perlberger 2024 NY Slip Op 31879(U) May 29, 2024
Supreme Court, New York County Docket Number: Index No. 158734/2023
Judge: Dakota D. Ramseur is the twenty year story of trying to collect an attorney fee. Debtor’s current attempt to block the attempt by allegations of extortion and violation of Judiciary Law 487 did not succeed.

“Pro se plaintiff, Gary Lutin (plaintiff), commenced this action for extortion, fraud, and
pursuant to Judiciary Law§ 487, against defendants, Ralph Perlberger, the Law Offices of Ralph Perlberger (collectively, the Perlberger defendants), Eric P. Schutzer (Schutzer) and The Schutzer Group, PLLC (collectively, the Schutzer defendants), stemming from Perlberger’s representation of plaintiff in another matter and the Schutzer defendants’ efforts to collect fees from plaitniff due to Perl berger. The Schutzer defendants now move pursuant to CPLR 321 l(a)(l), (5) and (7) to dismiss the complaint. The motion is opposed. For the following reasons, the motion is granted.

As relevant to the instant motion, on July 2, 2001, the New York City Civil Court granted
Perlberger a $37,043.75 money judgment against plaitniff in the action entitled Per/berger v Lutin, Index No. TS 1781-00/NY (the 2001 Judgment). The 2001 Judgment covered fees plaintiff owed the Perlberger defendants for legal services rendered in two commercial litigations: Lutin v New Jersey Steel Corporation, et al. and D.S. Atkinson, Inc. v Lutin Central Services Co., Inc. The Civil Court simultaneously dismissed plaintiffs counterclaims against the Perlberger defendants for legal malpractice in those matters.

On May 24, 2018, Perlberger commenced an action in Supreme Court, New York County
entitled Perlberger v Lu tin, Index No. 154885/2018, by the filing of a summons and motion for summary judgment in lieu of complaint, seeking to renew the 2001 Judgment (the Renewal Action). By order dated August 13, 2018, another justice of this court granted Perlberger’ s motion over plaintiffs opposition and directed the parties to settle an order on notice. On June 5 ,2019, the County Clerk entered the renewal judgment against plaintiff in the amount of $97.594.11 (Renewal Judgment). On February 25, 2020, plaintiff filed a motion to vacate the Renewal Judgment for lack of jurisdiction. On April 27, 2020, another justice of this court denied the motion.

Prior to July 9, 2019, Perlberger retained Schutzer to represent him in connection with
efforts to collect the duly entered Renewal Judgment. On July 9, 2019, Schutzer served plaintiff with a copy of the Renewal Judgment and notice of entry, together with a notice to judgment debtor, a restraining notice and an information subpoena (NYSCEF doc. no. 38 at ,r,r 35-36, ex 13 ). Schutzer then emailed the documents to plaintiff on July 30, 2019.

On December 6, 2019, Schutzer commenced a special proceeding on behalf of Perlberger in Supreme Court, New York County, entitled Perlberger v Lutin, Index no. 161842/2019, seeking to compel plaintiff and others to respond to outstanding information subpoenas and to impose sanctions. On December 28, 2020, another justice of this court denied both the Petition and plaintiffs cross-motion. On March 16, 2022, Schutzer served a new subpoena for documents and testimony on plaintiff via NYSCEF in the Renewal Action. On May 11, 2022, Schutzer served a new subpoena duces tecum and ad testificandum on plaintiff via NYSCEF in the Renewal Action. On November 16, 2022, Schutzer filed a motion in the Renewal Action seeking to hold plaintiff in contempt for disobeying the May 2022 Subpoena and to compel him to
comply therewith. On May 24, 2023, another justice of this court denied the motion for

“Here, plaintiff fails to plead facts stating a claim for both “fraud on the court” and under Judiciary Law§ 487. Plaintiff essentially alleges that the Schutzer defendants falsely claimed they filed certain documents as part of the Renewal Action, and that those statements resulted “[i]n the improper impositions of costs and burdens not only on Plaintiff and the court but also on non-party organizations” and further that the court in the Renewal Action did not “hear evidence of a previous settlement of Perl berger’ s claims.” However, plaitniff fails to allege a deception as to material facts, the Schutzer defendants’ intention to deceive, “[o]r that that [plaintiff] suffered damages that were proximately caused by the alleged deceit” (id. at 776). Again, plaintiff requests that: “If the Complaint does not satisfy the pleading requirements established by that case, or by other relevant cases, Plaintiff requests the Court’s direction to amend the Complaint accordingly.” As discussed in the preceding section, plaitniff failed to provide any factual basis to support his request for leave to amend the complaint, and thus, the
request is denied (see JP Morgan Chase Bank, NA. at 582). Accordingly, as plaintiff failed to plead facts suggesting that the Schutzer defendants intentionally deceived plaintiff or the Court, or any damages flowing therefrom, plaintiff’s claims for “fraud on the court” and under Judiciary Law § 487 are dismissed.”

Spirt v Spirt 2024 NY Slip Op 31873(U) May 22, 2024 Supreme Court, New York County
Docket Number: Index No. 160271/2023 Judge: Gerald Lebovits is not a legal malpractice case. It is an argument between brother and sister over an inheritance. Nevertheless, Judge Lebovits averts to the question of disgorgement and legal malpractice.

“In December 2016, Zuckerman opened the IRA at issue, designating plaintiff as its sole
beneficiary upon Zuckerman’s death. Plaintiff alleges that between December 2016 and August 2017, Zuckerman began to show increased “signs of dementia and cognitive decline, and became more and more dependent upon” defendant. (NYSCEF No. 1 at ¶ 9.) On August 17, 2017, defendant took charge of Zuckerman’s financial affairs. (Id. at ¶ 11.) On August 29, 2017, Zuckerman changed the beneficiary of the IRA from plaintiff to defendant. (Id. at ¶ 14.) Zuckerman died in September 2018.

In October 2023, plaintiff brought this action. Plaintiff alleges that the 2017 change of
beneficiary was either a forgery by defendant or the product of fraudulent inducement or undue influence exercised by defendant over Zuckerman. Plaintiff asserts five causes of action. The first three causes of action, sounding in undue influence, fraud, and unjust enrichment, seek damages in the amount of the IRA balance at Zuckerman’s death. The fourth cause of action requests a declaratory judgment that the change of beneficiary is void and that plaintiff is the rightful beneficiary. The fifth cause of action seeks disgorgement of any funds distributed to defendant from the IRA.”

“Finally, defendant argues that plaintiff’s cause of action seeking disgorgement should be dismissed because disgorgement is a remedy, not a freestanding cause of action. This court agrees. In NWM Capital, LLC v Scharfman, for example, the First Department held that a plaintiff’s “allegations of disgorgement do not preclude dismissal” of plaintiff’s claims against defendants against whom claims would not otherwise lie, because “disgorgement in this context is a remedy, not a cause of action.” (144 AD3d 414, 415 [1st Dept 2016]. Similarly, in Marcum LLP v L’Abbate, Balkan, Colavita & Contini, L.L.P. (222 AD3d 486, 488 [1st Dept 2023]), the First Department treated plaintiff’s request for disgorgement of attorney fees it had previously paid to defendants as, “essentially, a claim for monetary damages in connection with [plaintiff’s] legal malpractice claim”; and therefore that dismissal of the malpractice claim also entailed
dismissal of the disgorgement claim.

This court holds only that plaintiff may not maintain a freestanding claim sounding in
disgorgement. This court need not, and does not, reach on this motion the question whether plaintiff may obtain disgorgement as a remedy should he prevail on one or more of his other causes of action.”

In many ways legal malpractice and medical malpractice are first cousins. In other ways, attorneys get a far more beneficial set of rules in how they are treated by their fellow attorneys in legal malpractice claim settings.

One example is illustrated in Dowlah v Professional Staff Congress 2024 NY Slip Op 02980 Decided on May 30, 2024 Appellate Division, First Department where plaintiff attempts to sue his union provided lawyer for legal malpractice.

“Plaintiff’s legal malpractice claim against his union-appointed attorney who represented him in arbitration is preempted by Federal labor law, as “attorneys who perform services for and on behalf of a union may not be held liable in malpractice to individual grievants where the services performed constitute part of the collective bargaining process” (Mamorella v Derkasch, 276 AD2d 152, 155 [4th Dept 2000]).

Plaintiff’s claims against his union, Professional Staff Congress (PSC-CUNY), and its legal director, arising from their selection of an allegedly biased arbitrator are barred by res judicata and collateral estoppel based on this Court’s resolution of that issue in plaintiff’s prior appeals (see Matter of Dowlah v City Univ. of N.Y., 189 AD3d 533, 534 [1st Dept 2020]; Dowlah v American Arbitration Assn., 221 AD3d 426, 426 [1st Dept 2023]). Plaintiff’s instant claims are based on the same transaction as in both earlier actions, and therefore they are barred even though they are based upon different legal theories (Dowlah, 221 AD3d at 427). “That plaintiff has pleaded different causes of action and included new parties is of no moment” since “plaintiff, the party against whom preclusion is sought, was a party in the earlier action[s]” (id.).

To the extent plaintiff’s claim against PSC-CUNY arises from its appointment of plaintiff’s allegedly negligent attorney and thus raises a distinct issue, his allegations constitute a claim that he was improperly represented by his union, which is untimely under CPLR 217(2)(a)’s four-month limitations period (see Roman v City Empls. Union Local 237, 300 AD2d 142, 142 [1st Dept 2002], lv denied 100 NY2d 501 [2003]).”

Grasso v Guarino 2024 NY Slip Op 02692 Decided on May 15, 2024
Appellate Division, Second Department illustrates the quanta of allegations necessary to state a cause of action in Judiciary Law 487 claims.

“In 2011, the defendant represented the Town of Babylon in an action (hereinafter the 2011 action) commenced in the District Court, Suffolk County, against the plaintiff, alleging violations of the Town Code. In November 2017, the plaintiff commenced this action against the defendant individually and in his capacity as principal owner of Law Offices of Jerry C. Guarino, P.C. The plaintiff asserted causes of action alleging a violation of Judiciary Law § 487, fraud, and intentional infliction of emotional distress. The basis for the plaintiff’s allegations was the defendant’s conduct in the 2011 action, consisting of, inter alia, an alleged deceitful representation by the defendant in response to the plaintiff’s discovery demands, wherein the defendant represented that there were no notes taken by Town employees related to the plaintiff’s alleged violations of the Town Code, and the defendant’s alleged deceitful statement in a letter to the District Court, asserting that the plaintiff’s counsel had been sanctioned when the defendant should have known that those sanctions had been vacated. The defendant moved pursuant to CPLR 3211(a) to dismiss the amended complaint. In an order dated March 7, 2022, the Supreme Court granted the motion. The plaintiff appeals.”

“A cause of action alleging a violation of Judiciary Law § 487 “requires, among other things, an act of deceit by an attorney, with intent to deceive the court or any party” (Shaffer v Gilberg, 125 AD3d 632, 636 [internal quotation marks omitted]; see Cordell Marble Falls, LLC v Kelly, 191 AD3d 760, 762). “‘[V]iolation of Judiciary Law § 487 requires an intent to deceive’ as [*2]opposed to conduct which is negligent” (Cordell Marble Falls, LLC v Kelly, 191 AD3d at 762, quoting Moormann v Perini & Hoerger, 65 AD3d 1106, 1108 [citation omitted]). “Relief pursuant to Judiciary Law § 487 is not lightly given, and requires a showing of egregious conduct or a chronic and extreme pattern of behavior on the part of the defendant attorneys” (Kaufman v Moritt Hock & Hamroff, LLP, 192 AD3d 1092, 1093 [citation and internal quotation marks omitted]). “A cause of action alleging a violation of Judiciary Law § 487 must be pleaded with specificity” (id. [internal quotation marks omitted]). Here, even accepting the allegations in the amended complaint as true and according the plaintiff the benefit of every possible favorable inference, the amended complaint did not allege conduct that is actionable under Judiciary Law § 487 (see Kaufman v Moritt Hock & Hamroff, LLP, 192 AD3d at 1093).”

Real estate and legal malpractice go hand-in-hand so often in New York that there is practically a sub-genre of Manhattan apartment legal malpractice cases. They involve construction litigation, water intrusion litigation and of course, mortgage law litigation.

RSD857 LLC v Wright 2024 NY Slip Op 31674(U) May 13, 2024 Supreme Court, New York County Docket Number: Index No. 158125/2022 Judge: Paul A. Goetz is one such case.

“Wright alleges that he is the victim of a predatory mortgage foreclosure rescue scam
perpetrated by Petrokansky, in concert with RSD857 and the other counterclaim defendants, to fraudulently induce him and his wife, Doreen Green (Green),
to convey title to the Property, then the subject of a residential mortgage foreclosure action, to RSD857 in a short sale transaction (id., ¶ 80). Wright and Green purchased the one- to two-family residential dwelling in 1998 for $95,000 and obtained a mortgage, and refinanced multiple times to finance repairs (id., ¶¶ 91 and 97, NYSCEF Doc No. 43, Wright amended answer, exhibit 5). In October 2006, Wright and Green obtained a loan in the principal sum of $1.151 million secured by a mortgage on the Property in favor of Mortgage Electronic Registration System, Inc., as nominee for Countrywide Bank, N.A. (the Wright Loan and Mortgage) (NYSCEF Doc No. 38, ¶ 98). Bank of America, N.A. subsequently acquired Countrywide Bank, N.A. (id., ¶ 99), and Nationstar, later known as Mr. Cooper, began servicing the Wright Loan and Mortgage (id., ¶ 102). The Wright Loan and Mortgage has been in default since April 2011 (id., ¶ 148), and the mortgagee
commenced a mortgage foreclosure action against Wright, Green and others captioned Deustche Bank National Trust Company v Green, et al., Sup Ct, NY County, index No. 850088/2017 (the Foreclosure Action) (id., ¶ 107; NYSCEF Doc No. 94, Bruno affirmation, exhibit C). Wright retained the Law Office of Yuriy Moshes, P.C. to represent him, though a loan modification agreement was never finalized or executed (NYSCEF Doc No. 38, ¶ 108).

In September 2017, Petrokansksy approached Wright on behalf of YKSNAK, stated that
he knew the Property was in foreclosure and offered to purchase it outright before offering to assist Wright in keeping his home (id., ¶¶ 109-110). Between September 2017 and October 2019, Petrokansky repeatedly represented that he could save the Property from foreclosure while allowing Wright to maintain his equity in the Property and to continue residing there if Wright agreed to pursue a short sale (id., ¶¶ 117 and 119). Petrokansksy purportedly showed Wright photographs of other distressed homeowners he had helped and allowed Wright to speak to one such person by telephone (id., ¶ 120). By early 2018, Petrokansksy had successfully persuaded
Wright to agree to a short sale to evade foreclosure (id., ¶ 121). In February 2018, Wright and Green executed a memorandum of contract in which they agreed to sell the Property to RSD857; the memorandum was recorded in the Office of the City Register nine days later (NYSCEF Doc No. 48, Wright amended answer, exhibit 10). RSD857, though, did not register to conduct business with the New York State Department of State until March 21, 2018 (NYSCEF Doc No. 49, Wright amended answer, exhibit 11). On Petrokansky’s advice, Wright filed for Chapter 13 bankruptcy on March 5, 2018 to stay further proceedings in the Foreclosure Action (id., ¶¶ 124- 125). Wright alleges that after the Law Office of Yuriy Moshes, P.C. withdrew its representation of him in late March, he relied on Petrokansky to represent his interests in the Foreclosure Action (id., ¶¶ 127-128; NYSCEF Doc No. 50, Wright amended answer, exhibit 12).

Thereafter, on April 4, 2018, Wright and Green executed a short sale contract to sell the
property to Joby for $520,000, and on April 9, 2018, Wright and Green executed a memorandum of option contract agreeing to sell the Property to YKSNAK (NYSCEF Doc No. 38, ¶¶ 129-130). In January 2019, Petrokansky allegedly arranged for two appraisals for the Property; Viscusi completed the second appraisal (id., ¶ 131). Wright alleges that Viscusi significantly undervalued the Property at $825,000 by failing to account for its value as a development site (id., ¶ 132). Wright further alleges that Viscusi’s appraisal from January 18, 2019 was a significant factor in convincing him and the mortgagee in the Foreclosure Action to agree to a short sale (id., ¶ 133). Petrokansky or his agents, purporting to represent Wright and Green, appeared at a court conference in the Foreclosure Action and “advocated for the court to issue an order that would pressure the foreclosing lender to review the pending short sale application for the benefit of Mr. Petrokansky” (id., ¶ 134). Wright and Green, at Petrokansky’s direction, also
executed a short sale approval application on October 17, 2019 (id., ¶ 136).”

“Cohen argues that Wright failed to plead fraud with particularity by failing to identify a
material misrepresentation Cohen made. Cohen further argues that Wright cannot demonstrate reasonable reliance on any purported misrepresentations by him given Wright’s prior statements that he was without counsel on the transaction and completely relied on Petrokansksy. Wright contends that he has adequately pleaded a cause of action for fraud based on a material omission. In reviewing the amended answer, Wright did not plead a specific affirmative misrepresentation made by Cohen (see CMB Export Infrastructure Inv. Group 48, LP v. Motcomb Estates, Ltd., 223 AD3d 513, 514 [1st Dept 2024] [complaint must plead specific facts about the time, place and manner of the alleged misrepresentation]), alleging only that he “relied on other’s representations, including those of … Cohen” (NYSCEF Doc No. 38, ¶ 144). However, a claim for fraud can be predicated upon an omission of material fact (Pasternack, 27
NY3d at 827), and here, Wright alleges that Cohen’s “silent acquiescence with Mr.
Petrokansky’s misrepresentations does not excuse him of liability” (NYSCEF Doc No. 115,
Wright mem of law at 2).

“Absent a confidential or fiduciary relationship, there is no duty to disclose, and mere
silence, without identifying some act of deception, does not constitute a concealment actionable as fraud” (NYCTL 1999-1 Trust v 573 Jackson Ave. Realty Corp., 55 AD3d 454, 454 [1st Dept 2008], affd 13 NY3d 573 [2009], cert denied 561 US 1006 [2010]). “A fiduciary relationship ‘exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation’” (EBC I, Inc. v Goldman Sachs & Co., 5 NY3d 11, 19 [2005] [citation omitted]). Whether a fiduciary relationship exists is “necessarily fact specific” (id.). “‘If the parties … do not create their own relationship of higher trust, courts should not ordinarily transport them to the higher realm of relationship and fashion the stricter duty for them’” (id. at 20 [citation omitted]).

It is well settled that “[a]ttorneys have a fiduciary relationship with their clients” (Mutual
Benefits Offshore Fund, Ltd. v Zeltser, 172 AD3d 648, 649 [1st Dept 2019], lv dismissed 35 NY3d 933 [2020]). Wright argues that he and Cohen had a fiduciary relationship because Petrokansky stated that Cohen would act as Wright’s attorney. Wright, though, has averred in affidavits submitted in the Ejectment Action that the lawyers at the closing “were all lawyers for Mr. Petrokanksy” (NYSCEF Doc No. 103, Bruno affirmation, exhibit L, Wright 3/29/2021 aff ¶ 38), that “[a]ny alleged legal counsel all worked for Mr. Petrokansky and so did not have my best interests in mind” (id., ¶ 23), and that “there was no lawyer present there representing me to explain the documents that I was signing” (NYSCEF Doc No. 105, ¶ 24). Wright has also averred that “[t]he papers were put in front of me for the short sale and I had to completely rely on Mr. Petrokansky to advise me what he [sic] was signing” (NYSCEF Doc No. 103, ¶ 23). Although Wright’s affidavits filed in the Ejectment Action are not considered documentary evidence for purposes of CPLR § 3211 (a) (1) (Allen v Thompson, 224 AD3d 565, 568 [1st Dept 2024]), the statements therein constitute informal judicial admissions and, contrary to Wright’s
contention, those prior statements can be considered on a CPLR § 3211 motion testing the sufficiency of a pleading (see Kaisman v Hernandez, 61 AD3d 565, 566 [1st Dept 2009]; Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1st Dept 1999], affd 94 NY2d 659 [2000]). In addition, the statements in Wright’s verified answer denying the existence of an attorneyclient relationship with Cohen constitute formal judicial admissions (see P. Zaccaro, Co., Inc. v DHA Capital, LLC, 157 AD3d 602, 602 [1st Dept 2018], lv denied 31 NY3d 907 [2018]; see also Jerome Prince, Richard on Evidence § 8-215 [Farrell 11th ed 1995]). Specifically, Wright alleges that he “had not previously met Mr. Cohen, had not signed an engagement agreement with Mr. Cohen, and had not otherwise entered into an attorney-client relationship” with Cohen (NYSCEF Doc No. 38, ¶ 140). Wright pleads no other facts from which to infer that he and Cohen enjoyed a relationship of trust and confidence so as to give rise to a duty to speak (see NYCTL 1999-1 Trust, 55 AD3d at 454).

Even accepting Wright’s allegation that, “[t]o the extent an attorney-client relationship
existed, … Mr. Cohen failed to discharge his fiduciary duties to Mr. Wright” (NYSCEF Doc No. 37, ¶ 141), Wright still fails to plead a cause of action for fraud. The allegations in Wright’s amended answer sound in legal malpractice. A cause of action for fraud is duplicative of a cause of action for legal malpractice where, as is the case here, the claims arise out of the same nucleus of facts and seek the same damages (see Barrett v Goldstein, 161 AD3d 472, 473 [1st Dept 2018]). In addition, a cause of action for legal malpractice is subject to a three-year statute of limitations (see CPLR § 214), and Wright did not bring a claim against Cohen until after the statutory period expired. Accordingly, Wright’s second counterclaim for fraud as against Cohen will be dismissed.”

Dabiri v Porter 2024 NY Slip Op 02686 Decided on May 15, 2024 Appellate Division, Second Department is a case that neither defendant took particularly seriously, as each appeared pro-se (probably meaning that they choose not to involve their insurers.)

“In 2006, the plaintiff retained the defendant Albert Van-Lare to represent him with respect to his application for a medical license in Florida. In February 2009, the plaintiff was granted a conditional license (hereinafter the February 2009 order), inter alia, requiring the plaintiff to practice for one year under the direct supervision of a licensed physician approved by the Florida Board of Medicine (hereinafter the Board). The plaintiff waived his right to a hearing regarding the Board’s decision to impose conditions on his license. The plaintiff practiced under the direct supervision of an approved physician for approximately eight months.

In June 2011, the plaintiff retained the defendant Bartlett, McDonough, Bastone & Monaghan, LLP (hereinafter Bartlett), to represent him with respect to his application to remove the conditions of the February 2009 order and obtain a permanent license to practice medicine without restriction in Florida. The plaintiff’s application to remove the conditions of the February 2009 order was denied. In February 2012, the Board granted temporary approval of a new physician, David A. Marcentel, to serve as the plaintiff’s supervisor. In April 2012, after a hearing attended by Bartlett, the plaintiff was granted final approval for Marcentel to serve as his supervisor, and a practice plan was developed. However, the Board subsequently discovered that the plaintiff had been working with Marcentel from November 2011 through February 2012, prior to the Board’s grant of temporary approval.

In August 2012, the plaintiff discharged Bartlett and again retained Van-Lare to represent him in connection with an administrative complaint filed against him for his violation of the February 2009 order. The plaintiff ultimately agreed to settle the proceeding against him and accept a reprimand and fine.

In September 2015, the plaintiff commenced this action to recover damages for legal malpractice and breach of contract. Van-Lare and Bartlett (hereinafter together the defendants) thereafter separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. In an order dated October 4, 2019, the Supreme Court granted the defendants’ separate motions. The plaintiff appeals.”

“Here, the Supreme Court properly granted those branches of the defendants’ separate motions which were for summary judgment dismissing the cause of action alleging legal malpractice insofar as asserted against each of them. Each defendant made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence that they were not the proximate cause of the plaintiff’s alleged damages for loss of income (see id.). In opposition, the plaintiff failed to raise a triable issue of fact (see Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562).”

Gopstein v Bellinson Law, LLC 2024 NY Slip Op 02592 Decided on May 09, 2024
Appellate Division, First Department, which we discussed this week for the legal malpractice portion of the case, also had a Judiciary Law 487 component.

“In this legal malpractice action, plaintiff, an attorney acting pro se, alleges that defendants Bellinson Law, LLC, and Robert J. Bellinson (together Bellinson) negligently advised plaintiff to settle a legal malpractice action he commenced against his former attorney, Steven J. Pepperman. Pepperman initially represented plaintiff in a personal injury action. Unhappy with the results of a summary judgment motion, plaintiff replaced Pepperman with Bellinson in the personal injury action. Bellinson settled the personal injury action on plaintiff’s behalf. Afterward, plaintiff sued Pepperman for legal malpractice. Bellinson subsequently settled both the Pepperman legal malpractice action and Pepperman’s claim for legal fees in the personal injury action.”

“Although the motion court correctly dismissed the Judiciary Law § 487 claim, the proper basis for dismissal is that the claim was insufficiently pleaded given that it is supported by conclusory allegations of intentional deceptive conduct, rather than being duplicative of the legal malpractice (see Sabalza v Salgado, 85 AD3d 436, 438 [1st Dept 2011]).In any event, the court also properly dismissed plaintiff’s Judiciary Law § 487 claim as it is without merit. “Professional shortcomings or disagreements as to litigation strategy that do not involve intentional false statements in the context of litigation may sound in legal malpractice, but [*2]not in attorney deceit” under Judiciary Law § 487 (Urias v Daniel P. Buttafuoco & Assoc., PLLC, — NY3d —, 2024 NY Slip Op 01497, *5 [2024]; see also Bill Birds, Inc. v Stein Law Firm, P.C., 35 NY3d 173, 179 [2020]).”

Gopstein v Bellinson Law, LLC 2024 NY Slip Op 02592 Decided on May 09, 2024
Appellate Division, First Department is the curious case of a successful attorney-pro-se plaintiff who settled three claims in a row and then went on to sue the attorney who settled all three claims.

“In this legal malpractice action, plaintiff, an attorney acting pro se, alleges that defendants Bellinson Law, LLC, and Robert J. Bellinson (together Bellinson) negligently advised plaintiff to settle a legal malpractice action he commenced against his former attorney, Steven J. Pepperman. Pepperman initially represented plaintiff in a personal injury action. Unhappy with the results of a summary judgment motion, plaintiff replaced Pepperman with Bellinson in the personal injury action. Bellinson settled the personal injury action on plaintiff’s behalf. Afterward, plaintiff sued Pepperman for legal malpractice. Bellinson subsequently settled both the Pepperman legal malpractice action and Pepperman’s claim for legal fees in the personal injury action.

The court properly dismissed plaintiff’s claim pursuant to CPLR 3211(a)(7) because he failed to state a cause of action (Leon v Martinez, 84 NY2d 83, 87 [1994]). In order to survive a motion to dismiss, a plaintiff’s complaint in an action for legal malpractice must show that “but for counsel’s alleged malpractice, the plaintiff would not have sustained some actual ascertainable damages” (Pellegrino v File, 291 AD2d 60, 63 [1st Dept 2002], lv denied 98 NY2d 606 [2002]). Moreover, speculative or conclusory damages cannot be the basis of a malpractice claim (see id.).

Here, plaintiff’s allegation that Bellinson’s advice denied him the full value of his malpractice suit against Pepperman was “purely conclusory” (Murray Hill Invs. v Parker Chapin Flattau & Klimpl, LLP, 305 AD2d 228, 229 [1st Dept 2003]). Plaintiff’s complaint lacked any factual allegations to support his conclusion that he “would have succeeded” in achieving a better result in the personal injury action but for Pepperman’s negligence, and that he would have proved legal malpractice against Pepperman but for defendants’ advice (Pellegrino, 291 AD2d at 63). Additionally, plaintiff’s damages were speculative as he provided no basis for his calculations (see id.Zarin v Reid & Priest, 184 AD2d 385, 387-388 [1st Dept 1992]).”