Relief for violation of Judiciary Law § 487 is not “lightly given.” Facebook, Inc. v. DLA Piper LLP (US)  .  As an example, in AmTrust N. Am., Inc. v Pavloff  2022 NY Slip Op 02862 [204 AD3d 599] April 28, 2022 the Appellate Division, First Department found, in essence, that a mere lie is not enough to trigger the deceit statute.  The deceitful statement has to be “egregious.”

“The amended complaint states a cause of action for legal malpractice and the documents submitted do not utterly refute the factual allegations underlying that cause of action (see generally Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; CPLR 3211 [a] [1], [7]). Dismissal of the cause of action for violation of Judiciary Law § 487 (1) is, however, warranted. The amended complaint does not allege, and the documents submitted do not indicate, that defendant Sherri Pavloff’s statement at the August 2017 proceeding in the underlying motor vehicle accident action was untrue. Even assuming Pavloff’s statement was deceitful, it is not sufficiently egregious to support a section 487 (1) cause of action (e.g. Mazzocchi v Gilbert, 185 AD3d 438, 438 [1st Dept 2020], lv denied 37 NY3d 908 [2021]; Shawe v Elting, 161 AD3d 585, 588 [1st Dept 2018], lv denied 32 NY3d 907 [2018]).”

Feng Li v Shih  2022 NY Slip Op 04293 [207 AD3d 444] [207 AD3d 444]  July 6, 2022 Appellate Division, Second Department is a case so rife with wrongdoing, fee disputes, disbarments and other extreme forms of play that it stands out in a field which is awash with wrongdoing.  Here, the Court dismisses all causes of action.

“The plaintiff represented a number of clients in a lawsuit that resulted in a substantial judgment. The proceeds of the judgment were received by the plaintiff and deposited into his trust account. The plaintiff and the clients disagreed as to whether the plaintiff’s legal fees should be calculated pursuant to the terms of the retainer agreement they had signed or pursuant to New York’s contingency fee rules, and as to whether funds collected prior to the plaintiff’s representation of the clients should be included in that calculation as well (see Matter of Feng Li v Knight, 201 AD3d 1048, 1048-1049 [2022]). Before the fee dispute had been resolved, the plaintiff unilaterally disbursed approximately $1.2 million of the amount collected on behalf of the clients to himself and thereafter used the disputed funds to pay off foreign debts (see Feng Li v Peng, 161 AD3d 823, 824 [2018]; Feng Li v Peng, 516 BR 26, 32 [Bankr D NJ 2014], affd 610 Fed Appx 126 [3d Cir 2015]). The plaintiff “was subsequently disbarred in New Jersey and suspended from the practice of law in New York for misappropriating the disputed portion of his legal fee” (Feng Li v Peng, 161 AD3d at 824; see Matter of Feng Li, 149 AD3d 238 [2017]; In re Feng Li, 201 NJ 523, 65 A3d 254 [2013]). The fee dispute concluded in 2015 when a New Jersey court entered a judgment in favor of the clients and against the plaintiff in the total sum of approximately $1 million.

[*2] The plaintiff subsequently commenced this action against the defendant, an attorney who represented the plaintiff’s former clients in a number of actions and proceedings arising out of the fee dispute. The complaint asserted eight causes of action, sounding in malicious prosecution, abuse of process, prima facie tort, and intentional infliction of emotional distress, among other things. The complaint alleged that the plaintiff justifiably disbursed the disputed portion of the fee to himself, and that the defendant, despite knowing this to be true, pursued relief on the clients’ behalf in the New Jersey action that resulted in the money judgment and in two attorney discipline proceedings that resulted in the plaintiff’s disbarment in New Jersey and suspension in New York. The defendant moved, inter alia, pursuant to CPLR 3211 (a) to dismiss the complaint. The plaintiff opposed the motion, and separately moved pursuant to CPLR 3025 (b) for leave to supplement the complaint by adding a cause of action to recover treble damages under Judiciary Law § 487 and allegations that the defendant falsely accused the plaintiff of misappropriating client funds and misrepresenting the terms of the retainer agreement in communications with a number of courts and other bodies.”

“Nevertheless, the defendant was entitled to dismissal of the entire complaint. “The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action . . . and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). “ ’Collateral estoppel comes into play when four conditions are fulfilled: (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits’ ” (Wilson v City of New York, 161 AD3d 1212, 1216 [2018], quoting Conason v Megan [*3]Holding, LLC, 25 NY3d 1, 17 [2015]). Here, numerous courts, including this Court, have determined that the plaintiff may not relitigate the merits of the fee dispute with his former clients and the question of whether he misappropriated their funds (see e.g. Matter of Feng Li v Knight, 201 AD3d at 1048-1051; Feng Li v Peng, 161 AD3d at 825-826; Feng Li v Lorenzo, 2016 WL 10679578, *2, 2016 US Dist LEXIS 200997, *3-6 [SD NY, Sept. 7, 2016, No. 16-CV-4092 (CM), McMahon, J.], affd on other grounds 712 Fed Appx 21 [2d Cir 2017]; Feng Li v Peng, 516 BR at 42-48; Peng v Law Off. of Feng Li, 2017 WL 1166454, *6, 2017 NJ Super Unpub LEXIS 800, *15-16 [Mar. 29, 2017, No. A-3280-14T2]). The plaintiff’s first through fourth causes of action are all renewed attempts to relitigate these issues. Consequently, these causes of action are barred under the doctrine of collateral estoppel.”

Murphy v Kozlowska  2022 NY Slip Op 32947(U)  September 2, 2022   Supreme Court, New York County  Docket Number: Index No. 150978/2022  Judge: Lisa S. Headley presents the classic “catch-all” bag of claims against an attorney/lawfirm.  It appears that the attorneys were defending Plaintiffs (at least one of whom is an attorney) and Plaintiffs became disenchanted with the representation when they were strongly advised to settle for $ 750,000.

“On February 2, 2022, the plaintiff filed this action against defendants for alleged illegal acts committed by defendants, including conversion, trespass to chattel, defamation, libel, slander, extortion by attorneys, fraud and deceit, theft, coercion, extortion, blackmail, intentional infliction of emotional distress, negligent infliction of emotional distress, and punitive damages. In the complaint, plaintiff alleges, inter alia, that defendant Gary Certain told plaintiff that if the case was not settled quick, “it will not look good for him” and “to lay out $750,000 if [plaintiff] didn’t want any problems.” Plaintiff alleges that such interaction is considered blackmail and extortion. Plaintiff contends that this interaction caused emotional distress to plaintiff. Further, plaintiff alleges that defendant Kozlowska is in possession of electronic devices belonging to plaintiff that Kozlowska is using, along with her co-defendants, in order to blackmail and extort plaintiff. Plaintiff alleges that defendant Kozlowska has been saying “untrue things” about plaintiff to third parties, causing damage to plaintiffs reputation. ”

“Defendants’ motion to dismiss must be granted in its entirety as plaintiff has failed to state a cause of action for conversion, trespass to chattel, defamation, libel, slander, extortion by attorneys, fraud and deceit, theft, coercion, extortion, blackmail, intentional infliction of emotional distress, negligent infliction of emotional distress, and punitive damages as the complaint on its face is based on bare legal conclusions and insufficient factual evidence to fit within any cognizable legal theory. ”

“Likewise, plaintiff failed to state a cause of action for deceit. “A violation of Judiciary Law § 487 may be established either by the defendant’s alleged deceit or by an alleged chronic, extreme pattern of legal delinquency by the defendant.” Duszynski v. Allstate Ins. Co., 107 A.D. 3d 1448, 1449 ( 4th Dep’t 2013). Plaintiff does not set forth any evidence to show how defendants’ conduct was deceitful, nor how plaintiff was misled by defendants’ conduct. “

An attorney can be a free agent, or part of a team.  Increasingly, it seems the attorney can be both, at once.  Carasco v Schlesinger   2022 NY Slip Op 33021(U)  September 8, 2022
Supreme Court,  New York County Docket Number: Index No. 156729/2019,  Judge: David B. Cohen is an example of an attorney taking a case on in a partnership, leaving the partnership, moving on to a new firm, taking a case with him, but not transferring it to a new firm.  When it all goes wrong, the question remains:  Who is the attorney?

On or about December 8, 2014, plaintiff signed a retainer agreement with defendant law firm Julien & Schlesinger (“J&S”). Doc. 1 at par. 21; Doc. 46. Pursuant to the agreement, J&S
was to represent plaintiff in connection with personal injuries she sustained when she tripped and fell at Second Avenue and 58th Street in Manhattan on October 31, 2014 (“the accident”). Doc. 1 at par. 22; Doc. 46.”

“It is undisputed that, on January 6, 2016, Schlesinger, was no longer an employee of J&S, which ceased operations in 2015, became an associate at defendant Morelli Law Firm, PLLC
(“MLF”). Doc. 39 at pars. 22, 27. On or about January 28, 2016, plaintiff commenced a personal injury action in this Court styled Hazel Carasco v City of New York, Consolidated Edison
Company, and Halcyon Construction Company, et. al., under Ind. No. 105779/16 (“the underlying action”). Doc. 1 at par. 24; Doc. 47. The summons and complaint in the underlying
action listed counsel for plaintiff as “Michael S. Schlesinger of the Schlesinger Law Firm, P.C.” Doc. 47.”

“Between February 2017 and July 2018, this Court (d’ Auguste, J. and Tisch, J.) issued orders dismissing the underlying action against the defendants therein based, inter alia, on
plaintiffs failure to provide discovery. Doc. 54. ”

“MLF has, however, established its prima facie entitlement to summary judgment by demonstrating that it did not have an attorney-client relationship with plaintiff. One of the
elements of a legal malpractice claim is the existence of an attorney-client relationship (See Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP, 129 AD3d 790, 792 [2d
Dept 2015]). Here, MLF demonstrates that it did not have a retainer agreement with plaintiff; plaintiff concedes that Schlesinger never told her that she was represented by MLF;  Schlesinger and Morelli both testified that MLF refused to accept plaintiff’s case; and plaintiff did not communicate with, or receive legal advice from, anyone from MLF other than Schlesinger, who, although not mentioned in the retainer agreement signed by J&S, filed plaintiff’s complaint in the underlying action as Michael Schlesinger of “The Schlesinger Law Firm, P.C.” Thus, the burden shifts to plaintiff to raise a material issue of fact to defeat MLF’ s motion.

Plaintiff fails to raise an issue of fact regarding whether she was represented by MLF. The sole retainer agreement she signed in connection with the underlying action was with J&S.
Plaintiff’s presumption that there would be a continuation of the retainer agreement she signed with J&S when Schlesinger moved to MLF is insufficient to raise an issue of fact (See Davis v Cohen & Gresser, LLP, 160 AD3d 484,486 [1 st Dept 2018] citing Pellegrino v Oppenheimer & Co., Inc., 49 AD3d 94, 99 [1st Dept 2008] [“a party cannot create the relationship based on his or her own beliefs or actions”]; Jane St. Co. v Rosenberg & Estis, 192 AD2d 451,451 [1st Dept 1993], lv denied 82 NY2d 654 [1993] [plaintiff’s unilateral beliefs and actions do not confer upon it the status of client”]). Plaintiff conceded at her deposition that Schlesinger never told her that MLF represented her, but rather that he was representing her and that he worked for MLF. Plaintiff even conceded that Schlesinger told her as early as April 2016 that MLF was reluctant to take her case and there is no evidence that plaintiff was ever told that MLF agreed to represent her. Therefore, MLF is entitled to summary judgment dismissing the complaint against it (See Jones v. Lopez, 12 Misc 3d 1184[A], 2006 NY Slip Op 51444[U] [Sup Ct. Bronx County 2006] [plaintiff failed to establish that the defendant law firm explicitly undertook to perform a service for her, either orally or in writing]).
This Court acknowledges that plaintiff met with Schlesinger at MLF’ s offices on 3 or 4  occasions, that MLF appeared as counsel ofrecord on eLaw and/or eCourts, evidently because
Schlesinger was affiliated with the firm, and that plaintiff received email correspondence from Schlesinger via MLF’s email server. While the foregoing facts may be some indicia that MLF represented plaintiff, this Court finds that they do not raise a material issue of fact regarding whether she had an attorney-client relationship with the firm given the conclusions in the previous paragraph (See generally Theroux v Resnicow, 2021 NYLJ LEXIS 686 [Sup Ct New York County 2021] [Lebovits, J.] [in ruling whether emails were protected by attorney-client privilege, this Court held that no attorney-client relationship existed where, as here, there was no retainer or letter of engagement, no fees were paid, the attorneys did not appear on behalf of the alleged client, and the attorneys’ names were not on any of the documents filed in the action]). Contrary to plaintiffs contention, MLF is not vicariously liable for acts committed in furtherance of Schlesinger’s personal motives and not in furtherance ofMLF’s business (See Esposito v Isaac, 54 Misc3d 134[A] [App Term 1st Dept 2017] [citation omittedJ). ”

“Schlesinger fails to establish his prima facie entitlement to summary judgment dismissing the complaint. Although Schlesinger did not personally have a retainer agreement or letter of engagement with plaintiff, he represented plaintiff at her 50-h hearing on behalf of J&S and assumed her representation in the underlying action by filing the summons and complaint therein as Michael Schlesinger of “The Schlesinger Law Firm, P.C.” which, said documents indicated, was the “Attorney[ ] for the Plaintiff.”

It is well settled that “an attorney must seek leave of the court to be relieved as counsel for a client based upon good cause, unless a consent to change attorneys signed by the client has been filed (CPLR 321 [b][2]; Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.16[d]).” (Grant v Mendez, 2013 NY Slip Op 33750[U], *3 [Sup Ct, Westchester County 2013]). In
Grant, the court held that an attorney acted improperly by advising his client that he was going to withdraw from representing him without obtaining the client’s signed consent or seeking a court order relieving him as counsel and that the attorney had an obligation to continue representing the client until such time as he was formally relieved as counsel.

Schlesinger maintains, in essence, that he drafted the complaint for plaintiff as an accommodation. However, he fails to acknowledge his responsibility to continue representing
her until such time as he successfully moved to be relieved as counsel or was discharged as counsel by plaintiff. Although Schlesinger told plaintiff that MLF would not take her case, and that she should retain new counsel, this did not fulfill his legal obligation to sever his ties with her. Thus, he remained responsible for representing her in the underlying action which, he admits, was dismissed due to “nonappearance of the plaintiff.” “

Fierro v Yellen  2022 NY Slip Op 32959(U)  August 31, 2022  Supreme Court, Kings County  Docket Number: Index No. 523796/2021  Judge: Ingrid Joseph is way too complicated a fact pattern to set forth in a paragraph or two.  You’ll have to read the multi-page facts in the case itself.

Here is the doctrinal take-away discussion on Judiciary Law § 487:

“The statute of limitations is also six years for plaintiffs’ first cause of action for violation of Judiciary Law § 487 (see CPLR § 213 [ 1]; Melcher v Greenberg Traurig,
LLP, 23 NY3d 10, 15 [2014], rearg denied 23 NY3d 998 [2014]). Since this cause of action accrued at the same time as plaintiffs’ third cause of action for fraud, it similarly is
time-barred, warranting its dismissal (see CPLR 3 211 [a] [5]). ”

“Furthermore, Judiciary Law § 487 ( 1) provides, in pertinent part, that “[ a ]n attorney or counselor who . . . [i]Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party . . . forfeits to the party ‘ injured treble damages, to be recovered in a civil action.” lt is understood that “relief under a cause of action based upon Judiciary Law § 487 ‘is not lightly given”‘ (Facebook, Inc. v DLA Piper LLP [US], 134 AD3d 610,615 [1st Dept 2015], lv denied 28 NY3d 903 [2015], quoting Chowaiki & Co. Fine Art Ltd. v Lacher, 115 AD3d 600, 601 [1st Dept 2014 ]). To warrant such relief, the plaintiff must make a showing of “egregious conduct or a chronic and extreme pattern of behavior” on the part of the defendant attorneys that caused damages (Savitt v Greenberg Traurig, LLP, 126 AD3d 506, 507 [1st Dept 2015]).  Moreover, “allegations regarding an act of deceit or intent to deceive must be stated with particularity” (Facebook, Inc., 134 AD3d at 615), and “the claim will be dismissed if the allegations as to scienter are conclusory and factually insufficient” (id.; see also . Briarpatch Ltd., L.P. v Frankfurt Garbus Klein & Selz, P’.C., 13 AD3d 296, 297-298 [1st  Dept 2004], lv denied 4 NY3d 707 [2005]; Agostini v Sobol, 304 AD2d 395, 396 [1st Dept 2003 ]). This court, upon consideration, does not find that plaintiffs sufficiently allege such “egregious conduct or a chronic and extreme pattern of behavior” on the part of the defendant attorneys to state a viable claim under Judiciary Law § 487 (see CPLR 3211 [a] [7]; Savitt, 126 AD3d at 507). “

Menkes v Greenwald  2022 NY Slip Op 32882(U)  August 24, 2022 Supreme Court, New York County  Docket Number: Index No. 159685/2021 Judge: David B. Cohen is an illustration of how the continuous representation period can end when one of the legs collapses.  Specifically the legs to continuous representation are a continuing relationship of trust and confidence, the shared understanding of the need for further legal work, and actual further legal work.

In this case, there was a lapse in the continuing relationship of trust and confidence.

“Generally, a cause of action for legal malpractice accrues on the date that the alleged malpractice was committed, and a plaintiff has three years to commence such action (see CPLR
214 [6]; Glamm v Allen, 57 NY2d 87, 93 [1982]). That three-year statute of limitations can also be tolled under the doctrine of continuous representation (see Glamm, 57 NY2d at 93-95).
However, tolling resulting from continuous representation ends “once the client is informed or otherwise put on notice of the attorney’s withdrawal from representation” (Shumsky v Eisenstein, 96 NY2d 164, 170-171 [2001]; accord RJR Mech. Inc. v Ruvoldt, 170 AD3d 515,515 [1st Dept 2019]), such as when an attorney provides a client with all of that client’s files (see Marzario v Snitow Kanfer Holzer & Millus, LLP, 178 AD3d 527, 528 [1st Dept 2019]).

In her complaint, plaintiff does not provide an exact date of defendants’ alleged malpractice (Doc No. 31 at 3-9). However, in support of their motion, defendants submit emails
between themselves and plaintiff discussing the representation (Doc Nos. 44-45). In a May 2016 email, defendants stated that they were “preclude[d]” from further representing plaintiff because of her threats to sue defendants for legal malpractice; and in an email from August 23, 2016, defendants stated that they had provided plaintiff with all of her files (Doc Nos. 44-45). Even under the doctrine of continuous representation, and giving plaintiff the benefit of every possible inference, the relationship between the parties ended, and the limitations period began to run, on August 23, 2016 (see Marzario, 178 AD3d at 528; Riley v Segan, Nemerov & Singer, P.C., 82 AD3d 572, 572-573 [1st Dept 2011]). Therefore, plaintiff was required to commence an action by August 23, 2019 (see CPLR 214 [6]). Since plaintiff did not commence the instant action until October 25, 2021 (Doc No. 1 at 13), her legal malpractice claim is barred by the statute of limitations and must be dismissed (see Riley, 82 AD3d at 573). “

As if a textbook discussing many of the less obvious hurdles for a legal malpractice claimant, Brooks v Baker & Hostelter, LLP  2022 NY Slip Op 32871(U)  August 23, 2022  Supreme Court, New York County  Docket Number: Index No. 655754/2021  Judge: Arlene P. Bluth defines and sets forth the law on issues of standing, commencement of the suit, actual innocence in a claim against a criminal defense attorney and the acts of subsequent counsel.

“As an initial matter, the Court finds that plaintiff lacked capacity to bring this lawsuit at the time the complaint was filed. He admitted in opposition that he petitioned the probate court in Florida on July 12, 2022 to reopen the estate (it was previously closed) and for his reappointment as personal representative. This case was filed in September 2021 and so he did not have capacity to sue on behalf of his brother’s estate when this case was commenced.

Even if the Court were to overlook plaintiff’s lack of capacity to sue, the fact is that plaintiff did not state a valid cause of action for legal malpractice. “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 plaintiff to sustain actual and ascertainable damages To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, 835 NYS2d 534 [2007] [internal quotations and citations omitted]).

“[A]n individual convicted of a criminal offense must be able to assert his innocence or a colorable claim of innocence before he can pursue a claim against his attorney for legal
malpractice arising out of the criminal proceeding” (Britt v Legal Aid Soc., Inc., 95 NY2d 443, 445, 718 NYS2d 264 [2000]).

Here, it is undisputed that Mr. Brooks pled guilty to various tax charges and was sentenced to years in prison. That the tax charges were severed does not change the fact that
they were all part of the same purportedly insufficient indictment about which plaintiff complains. Moreover, it is undisputed that defendants were representing Mr. Brooks during a
time period when all the charges (both tax and non-tax) were included in the same indictment.

Plaintiff’s attempt to show that Mr. Brooks would not have been imprisoned if defendants had raised the issue about the defective indictment is mere speculation. This claim relies on the suggestion that, somehow, Mr. Brooks would have convinced a subsequent grand jury not to indict him. Of course, that argument fails because he pled guilty to the tax charges. It is also critical to point out that any jurisdictional defect was rendered moot when the government empaneled a new grand jury that returned a second superseding indictment containing the exact same charges against Mr. Brooks. And the courts reviewing the issue noted that any prejudice was overcome.

And, as defendants point out, Mr. Brooks hired many attorneys throughout the course of the U.S. Attorney’s investigation into his criminal conduct and defendants were long gone by the time the actual criminal trial started or when Mr. Brooks pled guilty. These other attorneys had ample opportunity to raise any number of issues on Mr. Brooks’ behalf. And so even if there was some malpractice, successor counsel had a chance to address it (Davis v Cohen & Gresser, LLP, 160 AD3d 484, 487, 74 NYS3d 534 [1st Dept 2018] [dismissing a legal malpractice claim where a successor counsel had sufficient time to protect plaintiff’s interests and failed to do so]).

Finally, the Court finds that the instant matter is time-barred. The Second Circuit’s decision vacating his conviction was issued on September 20, 2017 (see United States v Brooks,
872 F3d 78, 96 [2d Cir 2017]) and this case was not commenced until September 2021. “

Anecdotally, we believe that attorney fee claims make up the majority of attorney cases.  Legal malpractice takes up a very minor portion of the overall set of cases in which an attorney is a party.  Hand Baldachin & Amburgey LLP v John Barrett, Inc.  2022 NY Slip Op 50826(U)  Decided on August 26, 2022  Supreme Court, New York County
Reed, J. is a typical case.

“Barrett Holdings retained law firm Hand Baldachin & Associates, LLP (“HBA”) to perform legal services, pursuant to an engagement agreement dated February 25, 2015 (the “engagement agreement”), which was signed by both parties. Thereafter, HBA performed certain corporate and litigation services on behalf of Barrett Holdings and its affiliated entity, John [*2]Barrett, Inc.[FN1] HBA performed limited corporate law services in connection with a deal between Barrett Holdings and Saks & Company LLC to open John Barrett salons in Saks Fifth Avenue department stores. HBA also represented John Barrett, Inc., in connection with a lawsuit entitled Red Door Salons, Inc. v. Georges Reuset al., Index No. 653439/2015 (Sup Ct., New York County 2015).

Thereafter, HBA issued 12 invoices to Barrett Holdings, between April 10, 2015 and April 6, 2016, for legal services rendered and expenses incurred during HBA’s representation. As of the last invoice dated April 6, 2016, Barrett Holdings owed HBA $9,246.88 for corporate work and $186,393.50 for litigation work, for a total of $195,640.38. These amounts remain outstanding.

Plaintiff commenced this action against defendant by filling a summons and complaint on November 22, 2016, asserting three causes of action: breach of contract, unjust enrichment quantum meruit and an account stated (NYSCEF Doc. No. 1, complaint, 7). On December 19, 2016, Defendants filed an answer with counterclaims, for legal malpractice, breach of fiduciary duty, and unjust enrichment.”

“As to the merits, HBA has established a valid cause of action against Barrett Holdings. The elements of a cause of action for breach of contract are: “(1) the existence of a contract, (2) the plaintiff’s performance, (3) the defendant’s breach, and (4) resulting damages.” (Alloy Advisory, LLC v. 503 W. 33rd St. Assoc., Inc., 195 AD3d 436, 436 [1st Dept 2021]). In support of this motion, Douglas Hand of HBA submitted the contract between HBA and Barrett Holdings, as well as an affidavit stating that HBA performed the legal services; incurred the expenses reflected on 12 invoices sent to Barrett Holdings; and that a balance of $195,640.38 remains outstanding. Having proven the elements of its breach of contract claim and satisfied the procedural requirements of CPLR § 3215, HBA is entitled to a default judgment in the amount of $195,640.38, plus statutory interest from Barrett Holdings.

In addition to granting a default judgment in favor of HBA, the court is also dismissing Barrett Holdings’ counterclaims against HBA asserted in the amended answer. CPLR Rule 3216(a) states, in relevant part: “Where a party unreasonably neglects to proceed generally in an action the court, on its own initiative or upon motion, with notice to the parties, may dismiss the party’s pleading on terms.” CPLR Rule 3216 may be used to dismiss counterclaims (see Burke, Albright, Harter & Rzepka LLP v. Sills, 187 AD..3d 1507, 1508 [4th Dep’t 2020]; Express Shipping, Ltd. v. Gold, 63 AD3d 669, 671 [2d Dep’t 2009]).

The conditions precedent to dismissal are: issue must have been joined [CPLR 3216(b)(1)]; one year has passed since the joinder of issue or six months have passed since the issuance of the preliminary conference order, whichever is later [CPLR 3216(b)(2)]; and the movant must serve a 90-day notice by registered or certified mail demanding the resumption of prosecution and stating that failure to do so will serve as the basis for a motion to dismiss [CPLR 3216(b)(3)].

Here, all three conditions have been satisfied. Issue was joined on December 19, 2016, when defendants filed an answer with counterclaims (NYSCEF, Doc. No. 3). It has been more than six months since the court issued the preliminary conference order on June 19, 2019 [*4](NYSCEF, Doc. No. 26). It has been more than 90 days since HBA served a notice upon Barrett Holdings, via its registered agent, to resume prosecution of its counterclaims (NYSCEF, Doc. No. 79). In that notice, HBA explicitly stated that defendant’s default in complying with the demand within 90-day period will serve as a basis for a motion by plaintiff to dismiss said counterclaims for unreasonably neglecting to proceed (id.) To date, Barrett Holdings has failed to appear by counsel as previously ordered by the Court on April 16, 2021. (NYSCEF, Doc. No. 75). Therefore, dismissing counterclaims is proper under CPLR Rule 3216(a). However, the dismissal of the counterclaims is not on the merits.”

Kaufman v Boies Schiller Flexner LLP2022 NY Slip Op 32743(U)  August 15, 2022 Supreme Court, New York County  Docket Number: Index No. 154149/2018  Judge: James d’Auguste is the very fraught story of a massively fought matrimonial action.  It seems that millions were spent on litigation.  The martial estate must have been very worthwhile.  This case discusses two legal malpractice issues:  excessive billing and violation of Judiciary Law § 487.  In this blog, we will review the JL § 487 claims.

“Plaintiff has renumbered the Judiciary Law § 487 from the second cause of action in the original complaint to the to the seventh cause of action in the PAC.3 An attorney is liable for a
violation of Judiciary Law § 487 if he or she “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the Court or any party; or … [w]ilfully  delays his client’s suit with a view to his own gain.” A cause of action under the statute “requires a showing of ‘egregious conduct or a chronic and extreme pattern of behavior’ on the part of the defendant attorneys that caused damages” (Facebook, Inc. v DLA Piper LLP (US), 134 AD3d 610,615 [1st Dept 2015], Iv denied 28 NY3d 903 [2016] [citation omitted]). Allegations of deceit or the intent to deceive must be pled with particularity (Bill Birds, Inc. v Stein Law Firm, P.C., 164 AD3d 635, 637 [2d Dept 2018], affd 35 NY3d 173 [2020]; Facebook, Inc., 134 AD3d  at 615 [ dismissing a Judiciary Law § 487 claim where the allegations of sci enter were conclusory and were not supported by specific facts]).

The PAC alleges that BSF and Kaplan intentionally deceived plaintiff into signing the January 17, 2013, preliminary conference order/stipulation in which she relinquished her rights
to various personal and marital property, and which directed her ex-husband, Thomas Kaufman (Kaufman), to pay her $2 million in cash and/or securities (NYSCEF Doc. No. 203, ,r,r 416-419 at 449 [Ex 11 ]). BSF and Kaplan allegedly colluded to obtain an all-cash payment instead of stock so they could bill plaintiff for their own personal gain (id., ,r,r 420-421 ). BSF and B&K are alleged to have intentionally prolonged the action by failing to re-file an order to show cause for pendente lite relief and discovery (id., ,r,r 423-427), with BSF concealing its wrongdoing by refusing to provide an accounting of its services (id., ,r,r 428-431 ), and by refusing to proceed with mediation even though CM had advised the Court of his intention to mediate (id., ,r,r 435- 437). After cancelling the mediation, BSF and B&K billed plaintiff an additional $892,023.18 (id., ,r 442). Kaplan purportedly defamed plaintiffs parenting skills in an October 15, 2014, email to Joan Salwen (Salwen), the attorney representing her youngest daughter, which led her daughter to join Kaufman in Westchester (id., ,r,r 249-252 and 450). Defendants allegedly undermined plaintiffs custodial rights so she and Kaufman would be forced to sell the marital home, the proceeds of which could be used to pay defendants’ fees (id., ,r,r 451-452). BSF also intentionally deceived the Court and plaintiff on Uno’s unauthorized practice oflaw (id., ,r,r 461 and 463). It is claimed that Kaplan and BSF were aware that plaintiff suffers from ADHD dyslexia and a cognitive auditory disability and required a written copy of the settlement and “time to read, process and digest the written terms in order … to understand [them]” (id., ,i,r 265- 268). The PAC alleges that the settlement terms, though, “had been drastically changed from the original letter Kaplan sent Plaintiff’ (id, ,r 269). The PAC further alleges that when plaintiff expressed her reservations about the settlement to Kaplan and CM, and Kaplan, in tum “told CM[ ] that Plaintiff did not understand the terms of the Settlement” (id, ,r,i 276 and 282). It is alleged that “CM[ ] dismissed this concern, stating to Kaplan that if Plaintiff did not accept the Settlement that was being offered, she would never get out of the courtroom and Defendants would be wrapped up litigating this case forever” (id, ,i,r 277 and 283). Plaintiff now claims defendants coerced her into entering into the settlement with Kaufman even though they knewshe did not understand its terms (id., ,r 287).

These allegations fail to remedy the deficiencies in the original complaint regarding the element of intentional deceit (see Lavelle-Tomko v Aswad & Ingraham, 191 AD3d 1142, 1147
[3d Dept 2021] [ denying a motion to amend a complaint to plead a cause of action under Judiciary Law § 487 where the proposed amendment failed to plead facts tending to prove the attorney’s intent to deceive]; Genger v Genger, 135 AD3d 454,454 [1st Dept 2016], Iv denied 27 NY3d 912 [2016] [reasoning that there was no basis to rep lead where the plaintiffs papers did not show that plaintiff would be able to state a viable cause of action]). Plaintiff liberally employs words or phrases such as “intentionally deceived” or “intentionally misled” or “deceitfully” throughout the PAC, but such catch phrases are too conclusory to plead intent with particularity. Nor does the PAC plead any specific facts from which deceit or the intent to deceive may be inferred (see Ehrenkranz v 58 MHR, LLC, 159 AD3d 872, 872 [2d Dept 2018]). More importantly, several of the purportedly deceitful acts -the defective order to show cause, a cancelled mediation, Kaplan’s allegedly defamatory email, Uno’s participation in the action, and the settlement – were addressed previously in the April Order, though now, plaintiff buttresses the allegations with additional documents. The Court transcripts, emails and other documents, however, are insufficient to plead the element of scienter with particularity or evince an egregious or chronic pattern of behavior.

As stated in the April Order, the Court declined to sign the order to show cause because the motion had been filed four days before a trial ready conference and because defendants failed to request a pre-motion conference (NYSCEF Doc. No. 134 at 12). In declining to sign, the Court (Ecker, J.) also determined the motion “would be held in abeyance” so the parties could appear for a pre-motion conference (NYSCEF Doc. No. 203 at 452 [Ex 13)). The Court transcripts show that Kaplan and CM repeatedly raised the issue of outstanding discovery with the court-attorney referee and with the Court after the Court declined to sign the order to show cause (NYSCEF Doc. No. 203 at 458-459 [Ex 14]; NYSCEF Doc. No. 203 at 510 [Ex 15)). Thus, the documents do not support the claim that defendants willfully delayed plaintiffs suit for their own gain (see Fleyshman v Suckle & Schlesinger, PLLC, 91 AD3d 591,593 [2d Dept 2012], iv denied 19 NY3d 801 [2012] [granting dismissal of a Judiciary Law § 487 (2) cause of action because the “allegation that the defendants ‘willfully delayed [her] recovery with a view to their own ends and benefit’ is a bare legal conclusion”]).

Plaintiff complains that defendants cancelled mediation so they could continue to bill for their services. But, as noted in the April Order, BSF objected to the tactics employed by
Kaufman’s attorney to unilaterally proceed with mediation without furnishing certain discovery (NYSCEF Doc. No. 134 at 12-13). The correspondence regarding the proposed mediation submitted with the PAC fails to reflect an intent to deceive on the part of defendants. The emails show that defendants and Kaufman’s counsel never agreed on a specific mediator (NYSCEF Doc. No. 203 at 978 [Ex 26]). When Kaufman’s counsel executed a retainer with a mediator and paid a $10,000 fee, Kaplan advised that plaintiff “never agreed to start mediation with Mr. Berman. [S]orry for the confusion. Husband jumped the gun” (id. at 980). ”

“As for the settlement, plaintiff had previously argued that she did not understand the agreement and that Kaplan and BSF were aware that she did not understand it (NYSCEF Doc.
No. 134 at 16). As explained in the April Order, plaintiffs allocution defeats any claim that she misunderstood its terms, and therefore, defendants’ actions could not have caused her damages (see Maksimiak v Schwartzapfel Novick Truhowsky Marcus, P. C., 82 AD3d 652, 652 [1st Dept 2011] [granting dismissal where the complaint failed to plead that the attorneys’ actions caused the plaintiff’s damages]). Moreover, as noted in the prior order, another Justice of this Court had already denied plaintiffs attempt to set aside the settlement based on her lack of understanding of its terms (NYSCEF Doc. No. 179, decision and order dated August 14, 2019, in Coplan v Kaufman, Sup Ct, NY County, index No. 152865/2017).
As for the alleged misconduct concerning the preliminary conference stipulation/order dated January 17, 2013, a single act of deceit is not enough to trigger a Judiciary Law§ 487
violation (Strumwasser v Zeiderman, 102 AD3d 630,631 [1st Dept 2013]).

Accordingly, leave to replead the cause of action under Judiciary Law§ 487 is denied.”

Kaufman v Boies Schiller Flexner LLP2022 NY Slip Op 32743(U)  August 15, 2022 Supreme Court, New York County  Docket Number: Index No. 154149/2018  Judge: James d’Auguste is the very fraught story of a massively fought matrimonial action.  It seems that millions were spent on litigation.  The martial estate must have been very worthwhile.  This case discusses two legal malpractice issues:  excessive billing and violation of Judiciary Law § 487.  In this blog, we will deal with the excessive billing.  In Friday’s blog, we will review the JL § 487 claims.

“A. Breach of Contract against BSF, Kaplan, B&K and BRIR

Plaintiff has renumbered the breach of contract action for alleged overbilling from the first cause of action in the original complaint to the sixth cause of action in the PAC. Allegations
Allegations of  overbilling, padding of costs, and billing for unnecessary legal services can constitute a cause of action for breach of contract, provided the allegations do not directly challenge the quality of the attorney’s work (Ullmann-Schneider v Lacher & Lovell-Taylor, P.C., 121 AD3d 415,416 [1st Dept 2014]; O’Connor v Blodnick, Abramowitz and Blodnick, 295 AD2d 586,587 [2d Dept 2002] [same]).

The PAC alleges that defendants routinely charged plaintiff for the presence of multiple attorneys at depositions, hearings and conferences even though not all the attorneys present
contributed (NYSCEF Doc. No. 203, ,r,r 183 and 398). In one instance, BSF billed $2,762 for an associate and two paralegals to transport banker’s boxes to a pretrial conference (id., ,r 188 and at 647 [Ex 18]). BSF and B&K allegedly engaged in duplicate billing whereby attorneys discussing the matter in person or by telephone or email billed separately for their time and billed for different amounts of time spent at the same meeting (id., ,r,r 76-77, 185-186, 396 and 399- 400). Attorneys at BSF and B&K purportedly billed for reviewing the same documents (id., ,187). BSF allegedly failed to disclose that attorneys Charles Miller (CM), James Miller (JM) and Theodore Uno (Uno) were based in Florida (id., ,r 301). BSF billed $139,982.89 for their travel expenses to New York and over $9,000 for local travel expenses (id., ,r 182). BSF also billed $22,412.38 for its services before plaintiff had even signed a retainer (the BSF Retainer) (id., ,r 391). The PAC alleges plaintiff first learned that Uno was not licensed to practice in New York at a Court conference on November 13, 2014 (id, ,r 216). She asserts that Uno’s $485,700 fee is an unnecessary expense because he was not permitted to participate in the Divorce Proceeding (id., ,r,r 194, 197, 403 and 409). Plaintiff also complains that the hourly rates charge by JM, who is not licensed to practice in New York, and Uno are greater than the hourly rate charged by Kaplan, who is licensed to practice in this state (id., ,r,r 202-203).

These new allegations are unrelated to plaintiffs earlier complaints about the quality of defendants’ legal work and are sufficient to overcome the pleading deficiencies in the original
breach of contract action as against BSF, B&K and Kaplan, but not as to BRIR. While the PAC attributes overbilling to all defendants, a complaint that fails to distinguish between defendants is an improper group pleading (see Principia Partners LLC v Swap Fin. Group, LLC, 194 AD3d 584, 584 [1st Dept 2021]). Here, the PAC does not specifically allege that BRIR billed plaintiff for its services, and none of the exhibits reflect an invoice or bill delivered to plaintiff from BRIR. Critically, the PAC alleges that plaintiff never paid BRIR a retainer (NYSCEF Doc No. 203, ,r 67) and that she had retained “Joel C. Bender, Esq., P.C.,” not BRIR (id., ,r 322). Accordingly, leave to rep lead the breach of contract cause of action for alleged overbilling, unnecessary billing and excessive fees is granted as to BSF, B&K and Kaplan. The action shall be restored to the active calendar”