We believe (based on anecdotal reading of legal malpractice decisions) that a more than expected number of summary judgment motions are granted in favor of attorneys in legal malpractice settings. Gardner v Sacco & Fillas, LLP 2023 NY Slip Op 02865
Decided on May 31, 2023 Appellate Division, Second Department is an example of the contrary finding: affirmance in favor of the client and a very short decision as well. The takeaway when the Appellate Division says that the attorneys failed to submit sufficient evidence is that they really did not like the attorney’s position one bit.

“In September 2014, the plaintiff commenced this action against, among others, the defendants Sacco & Fillas, LLP, Tonino Sacco, Elias N. Fillas, and Lamont Rodgers (hereinafter collectively the Sacco defendants), inter alia, to recover damages for legal malpractice, alleging that he incurred damages as a result of the Sacco defendants’ failure to timely file a personal injury action on his behalf. The Sacco defendants moved for summary judgment dismissing the complaint insofar as asserted against them. In an order entered September 1, 2020, the Supreme Court, among other things, denied the Sacco defendants’ motion. The Sacco defendants appeal.”

“Here, the Supreme Court properly denied the Sacco defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them. The Sacco defendants failed to submit evidence establishing, prima facie, the absence of at least one essential element of the legal [*2]malpractice cause of action (see Aqua-Trol Corp. v Wilentz, Goldman & Spitzer, P.A., 197 AD3d at 545; Fricano v Law Offs. of Tisha Adams, LLC, 194 AD3d 1016, 1018; Ferrigno v Jaghab, Jaghab & Jaghab, P.C., 152 AD3d 650, 652; Atiencia v Pinczewski, 148 AD3d 860, 861). Since the Sacco defendants failed to make their prima facie showing, we do not need to consider the sufficiency of the plaintiff’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).”

Federal Ins. Co. v Lester Schwab Katz & Dwyer, LLP 2022 NY Slip Op 07149 [211 AD3d 527] December 15, 2022 Appellate Division, First Department shows what happens when large local (but not necessarily Big Law) firms handle litigation matters and have conflicts.

“Supreme Court correctly denied LSKD’s motion to dismiss the cause of action for legal malpractice. The verified complaint sufficiently alleges specific facts from which, if true, a factfinder could reasonably infer that, but for LSKD’s alleged negligence in conducting the insureds’ defense in the underlying action, plaintiff insurer would have achieved a better result in that litigation than the $4 million settlement to which it ultimately agreed. Stated otherwise, the question of proximate cause is not resolvable on this motion to dismiss (see Schroeder v Pinterest Inc., 133 AD3d 12, 26 n 7 [1st Dept 2015]).

The causes of action for fraud and negligent misrepresentation, however, should have been dismissed pursuant to CPLR 3211 (a) (1). Both of these claims are based on the contention that LSKD obtained its assignment to defend the insureds in the underlying action by misrepresenting or omitting to disclose the fact that it had a conflict of interest as to the City of New York, a codefendant in the underlying action. This conflict prevented LSKD from pursuing a cross claim against the City, to the detriment of the insureds and their insurers. The theory that LKSD misrepresented or failed to disclose the existence of the conflict is conclusively refuted by documentary evidence, specifically, an April 16, 2013 email from LSKD to, inter alia, the claims adjuster who retained it, plainly stating: “As discussed, we will accept this new assignment with the understanding that we will not assert cross claims against the City of New York. Our firm represents the City of New York in other matters and we are conflicted from asserting claims against them.”

In the context of the foregoing express disclosure of the conflict and consequent inability of LKSD to pursue a cross claim against the City, the communication of the same date that a search for possible conflicts had yielded negative results was not misleading. To the extent plaintiff contends that LKSD inaccurately minimized the viability of a potential cross claim against the City, the complaint fails to allege particularized facts that this advice was given with deceptive intent so as to support a fraud claim.”

Alford v Katz 2022 NY Slip Op 05397 [208 AD3d 1587] September 30, 2022 is the
Appellate Division, Fourth Department’ guidance on when and how a decedent’s estate can sue for legal malpractice.

“Memorandum: Plaintiff commenced this legal malpractice action as executor of and on behalf of the estate of her father, Robert J. Genco (decedent), alleging that defendants were negligent in the drafting of decedent’s will. In 2006, and before decedent and his wife were married, they entered into a prenuptial agreement that provided that decedent’s wife waived any rights to decedent’s retirement and deferred compensation accounts, and decedent’s will would include a $1 million qualified terminal interest property trust (QTIP trust) for his wife’s benefit. In 2007, decedent executed a will that included the QTIP trust bequest. In 2015, decedent changed the designation on his retirement accounts to designate his wife as the primary beneficiary of contributions decedent made after the date of their marriage and, in 2017, he signed a will that was prepared by defendants. In that will, decedent bequeathed to his wife $1 million, reduced by testamentary substitutes including retirement accounts for which she was the beneficiary, but there was no bequest for a QTIP trust. After decedent died, his wife filed a claim against his estate pursuant to SCPA 1803, claiming that she was entitled to, inter alia, $1 million to fund the QTIP trust and, when that claim was rejected, decedent’s wife commenced an action against plaintiff as executor of decedent’s estate. Plaintiff then commenced this action, alleging that defendants negligently drafted the 2017 will. Specifically, in this action plaintiff alleges that decedent changed the beneficiary designation on his retirement accounts in exchange for his wife’s waiver of her right under the prenuptial agreement to receive the QTIP trust, but defendants negligently failed to have decedent’s wife execute a written amendment and/or waiver to the prenuptial agreement.”

“Contrary to defendants’ contention, plaintiff, as the personal representative of decedent’s estate, may bring a claim for legal malpractice alleging that defendants were negligent in the estate planning for decedent (see Estate of Schneider v Finmann, 15 NY3d 306, 309-310 [2010]). “Damages in a legal malpractice case are designed ‘to make the injured client whole’ ” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 443 [2007], quoting Campagnola v Mulholland, Minion & Roe, 76 NY2d 38, 42 [1990]), and defendants failed to meet their initial burden of establishing that decedent’s estate did not sustain any damages or that any damages were speculative (cf. Leeder v Antonucci, 195 AD3d 1592, 1593 [4th Dept 2021]; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).”

Stevens v Wheeler 2023 NY Slip Op 02747 Decided on May 18, 2023 Appellate Division, First Department is the rare Estate legal malpractice case that survives a dismissal motion. It adequately demonstrates standing, proximate damages and that “but for” the choice of law provision, there would have been a better outcome for the Estate. A defense of strategy is rejected as “bare.”

“Plaintiffs, as co-executors of the decedent’s estate, essentially claim that defendants negligently failed to include a New York choice of law provision in decedent’s will and negligently recommended that decedent’s will be probated in Rhode Island rather than New York. According to plaintiffs, this resulted in decedent’s wife claiming an elective one-half share of the net estate under Rhode Island law, rather than the one-third of his net estate that decedent had bequeathed to her in his will. Decedent’s wife’s elective share claim was ultimately settled by stipulation.

Plaintiffs’ legal malpractice cause of action should not have been dismissed under CPLR 3211 (a) (1) or CPLR 3211 (a) (7) (see generally Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). The complaint adequately pleaded departure from the standard of care, i.e., failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and proximate cause. Defendants did not establish, as a matter of law, that probate would have been the same regardless of whether the will contained a New York choice of law provision or whether probate was sought in New York instead of Rhode Island. Defendants’ overarching position, that decedent’s wife did not have a statutory right to decline decedent’s bequest and elect to receive one-half of decedent’s net estate under Rhode Island law, is incorrect (RI Gen Laws §§ 33-1-10, 33-28-1, 33-28-4 [a]). Defendants’ bare assertion, that their recommendation of Rhode Island as the probate forum was a reasonable strategic decision under the circumstances, is not persuasive at this stage of the case (see RTW Retailwinds, Inc. v Colucci & Umans, 213 AD3d 509, 510 [1st Dept 2023]).

The settlement of the wife’s elective share claim does not utterly refute plaintiffs’ allegations of proximate cause because the complaint supports the inference that the settlement was effectively compelled by defendants’ malpractice (see Bernstein v Oppenheim & Co., 160 AD2d 428, 429-430 [1st Dept 1990]). Although the complaint does not allege any cognizable pecuniary damage to decedent’s estate, plaintiff Hardie Stevens’s affidavit corrects that deficiency by identifying several categories of damages to the estate, including increased taxes and legal fees (see Estate of Schneider v Finmann, 15 NY3d 306, 309-310 [2010]; Rudolf, 8 NY3d at 443; Leon v Martinez, 84 NY2d 83, 88 [1994]). Defendants’ remaining arguments relating to damages are not persuasive on [*2]this 3211 motion.

Pioneer Bank v Teal, Becker & Chiaramonte, CPAs, P.C.
2022 NY Slip Op 22316 [77 Misc 3d 360] October 4, 2022
Platkin, J Supreme Court, Albany County doesn’t decide any motions to dismiss, other than to direct that the issue be decided on a full summary judgment motion. What is interesting is the discussion of the differences and procedures of dispositive motions.

“Analysis

CPLR 3211 (a) (7) allows a party to move for dismissal on the ground that “the pleading fails to state a cause of action.” Such a motion may be made “[a]t any time” (CPLR 3211 [e]).

On a motion to dismiss made pursuant to CPLR 3211 (a), including a motion to dismiss for failure to state a claim under CPLR 3211 (a) (7), “either party may submit any evidence that could properly be considered on a motion for summary judgment,” including documentary evidence and affidavits (CPLR 3211 [c]). “Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment” (id.).

Here, defendants moved under “[CPLR] 3211(a) (7) and 3211(c)” (NYSCEF Doc No. 24), thus inviting conversion of their motion into one for summary judgment. However, the court has not converted the motion, and it will not do so. As defendants were advised at the January 2022 conference, if they wanted their motion treated as one for summary judgment, they needed to move for summary judgment. Accordingly, the court has before it an unconverted, post-answer motion for dismissal under CPLR 3211 (a) (7).

As Pioneer observes, the Appellate Division, Third Department recently summarized the principles governing determination of such a motion. As well-articulated by Presiding Justice Garry,

“[t]he grounds for dismissal under CPLR 3211 (a) (7) are . . . strictly limited; the court is not allowed to render a determination upon a thorough review of the relevant facts adduced by both parties, but rather is substantially more constrained in its review, examining only the plaintiff’s pleadings and affidavits” (Carr v Wegmans Food Mkts., Inc., 182 AD3d 667, 668 [3d Dept 2020]; see John R. Higgitt, CPLR 3211 [a] [7]: Demurrer or Merits-Testing Device?, 73 Alb L Rev 99, 109 [2009]).

“In contrast to a motion for summary judgment, a court resolving a motion to dismiss for failure to state a claim cannot base the determination upon submissions by the defendant—{**77 Misc 3d at 364}without regard to how compelling claims made in such submissions may appear” (Carr, 182 AD3d at 668 [citations omitted]). “Unless the motion to dismiss is converted by the court to a motion for summary judgment, a motion to dismiss is not in a posture to be resolved as a matter of law” (id. at 669 [internal quotation marks, brackets and citations omitted]).

In so ruling, the Third Department relied on the Court of Appeals’ decision in Miglino v Bally Total Fitness of Greater N.Y., Inc. (20 NY3d 342 [2013]), which declined to dismiss a negligence action under CPLR 3211 (a) (7) based on the defendant’s affidavit. The Court of Appeals explained that the

“matter [came to it] on a motion to dismiss, not a motion for summary judgment. As a result, the case is not currently in a posture to be resolved as a matter of law on the basis of the parties’ affidavits, and [plaintiff] has at least pleaded a viable cause of action” (id. at 351).

The Court of Appeals further emphasized that CPLR 3211 (a) (7) limits a court “to an examination of the pleadings to determine whether they state a cause of action,” obliges the court to “accept facts alleged [in plaintiff’s complaint] as true and interpret them in the light most favorable to plaintiff,” and protects the plaintiff from “be[ing] penalized for failure to make an evidentiary showing in support of a complaint that states a claim on its face” (id.).

Contrary to defendants’ argument in reply, nothing in the Third Department’s decision in Zeppieri v Vinson (190 AD3d 1173 [3d Dept 2021]) alters the mode of analysis for CPLR 3211 (a) (7) motions articulated in Carr. The Third Department’s decision in Zeppieri rejected the argument [*4]that Carr “limit[ed] what may be considered as documentary evidence” (Zeppieri, 190 AD3d at 1175 n), but that discussion pertained to the branch of the dismissal motion brought under CPLR 3211 (a) (1) (see Carr, 182 AD3d at 668). Defendants’ motion is not made under CPLR 3211 (a) (1), and their time in which to raise “a defense . . . founded upon documentary evidence” under that provision expired with service of their answer (see CPLR 3211 [e]).

Nor did defendants move under CPLR 3211 (a) (5) to interpose the defense of the partial expiration of the statute of limitations, and their time in which to do so similarly has expired (see CPLR 3211 [e]). To be sure, defendants preserved the defense in their answer (see id.; see also answer ¶ 156), {**77 Misc 3d at 365}thereby affording them the opportunity to move for summary judgment on the defense or present it at trial (see DeSanctis v Laudeman, 169 AD2d 1026, 1027 [3d Dept 1991] [“although we agree that the issue was properly preserved by defendant, . . . because responsive pleadings were served, defendant’s motion should have been brought pursuant to CPLR 3212 instead of pursuant to CPLR 3211”]; see also CPLR 3212 [c] [contemplating motions for summary judgment “on . . . the grounds enumerated in subdivision (a) or (b) of rule 3211”]).

The court therefore concludes that defendants’ fact-based causation defense and their partial challenge to the timeliness of Pioneer’s claims should, at this juncture, be the subject of a properly supported motion for summary judgment under CPLR 3212, not a motion for dismissal under CPLR 3211 (a) (7) accompanied by an invitation for conversion under CPLR 3211 (c).

In reaching this conclusion, the court recognizes that the Court of Appeals left open the possibility that a defendant may obtain dismissal under CPLR 3211 (a) (7) through the submission of “conclusive” affidavits and evidence (see Rovello v Orofino Realty Co., 40 NY2d 633, 635-636 [1976] [“affidavits submitted by the defendant will seldom if ever warrant the relief (it) seeks unless too the affidavits establish conclusively that plaintiff has no cause of action”]), and the other Judicial Departments take a more expansive view of CPLR 3211 (a) (7) (see e.g. Doe v Intercontinental Hotels Group, PLC, 193 AD3d 410, 410 [1st Dept 2021]).

But this court is obliged to follow the Third Department’s recent precedent in Carr, which teaches that “a court resolving a motion to dismiss for failure to state a claim cannot base the determination upon submissions by the defendant,” no matter “how compelling claims made in such submissions may appear” (182 AD3d at 668-669).

Moreover, there are sound reasons for requiring motions like the one made here by defendants to be brought under CPLR 3212. Defendants’ approach needlessly deprives the court of useful procedural tools associated with summary judgment motions, including the requirement that parties supply statements of material facts (see Rules of Commercial Div of Sup Ct [22 NYCRR] § 202.70 [g] [rule 19-a]; see also 22 NYCRR 202.8-g).

An evidence-based motion to dismiss under CPLR 3211 (a) (7) also injects needless uncertainty and delay into the motion{**77 Misc 3d at 366} practice,^[FN1] and may allow litigants to evade the proscription [*5]against successive summary judgment motions (see Amill v Lawrence Ruben Co., Inc., 117 AD3d 433, 433 [1st Dept 2014]; see also CPLR 3211 [e] [“no more than one (3211) motion shall be permitted”]).

In sum, defendants do not challenge the legal sufficiency of Pioneer’s claim for accounting malpractice, and their unconverted, post-answer CPLR 3211 (a) (7) motion is not an appropriate procedural vehicle by which to interpose a fact-based causation defense or assert the partial expiration of the statute of limitations.

Based on the foregoing, defendants’ motion is denied, without regard to the substantive arguments sought to be made therein and without prejudice to the eventual filing of a proper motion for summary judgment under CPLR 3212.^[FN2]“

Professional malpractice cases (Medical, Legal, Accounting) require either prior transactions or prior litigation. in Weight v Day 2023 NY Slip Op 02350
Decided on May 3, 2023 Appellate Division, Second Department we see how prior litigation can end the professional malpractice case because liability has already been compromised.

“The plaintiff jointly owned and operated a business known as Weight Steel Construction, Inc. (hereinafter Weight Steel), with her former husband, nonparty Joseph Weight. In September 2009, while the plaintiff and her former husband were engaged in divorce proceedings, they hired the defendant Wayne Day, a certified public accountant and a partner at the defendant accounting firm, Day Seckler, LLP, to serve as trustee of Weight Steel until the divorce was final. In February 2014, the plaintiff commenced this action against the defendants, inter alia, to recover damages for accounting malpractice and breach of fiduciary duty. The plaintiff alleged, among other things, that Day failed to prevent her former husband from needlessly using Weight Steel’s assets for his personal gain and failed to properly manage Weight Steel, which caused the demise of that corporation.

In May 2019, the defendants moved for summary judgment dismissing the complaint, arguing, inter alia, that this action was barred by the doctrine of collateral estoppel. The defendants contended that, in the divorce action, the Supreme Court had rejected the plaintiff’s claim that misconduct by her former husband, “with the assistance of others,” caused the demise of Weight Steel and detrimentally impacted the value of her interest in that corporation. The defendants also argued, among other things, that the plaintiff’s claims were based on wrongs to the corporation, which could only be asserted through a derivative action and not in the plaintiff’s individual capacity. The Supreme Court granted the defendants’ motion, and entered a judgment dismissing [*2]the complaint. The plaintiff appeals, and we affirm.

The doctrine of collateral estoppel “precludes a party from relitigating in a subsequent action or proceeding an issue raised in a prior action or proceeding and decided against that party, whether or not the tribunals or causes of action are the same” (Gobindram v Ruskin Moscou Faltischek, P.C., 175 AD3d 586, 589; see Buechel v Bain, 97 NY2d 295, 303). To apply the doctrine, “[t]here must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling” (Buechel v Bain, 97 NY2d at 303-304; see Moore v Kronick, 187 AD3d 892, 893). Here, the evidence submitted by the defendants in support of their motion, including excerpts from the transcript of the plaintiff’s deposition testimony and a decision after trial in the divorce action, demonstrated, prima facie, that the issue of whether the plaintiff’s former husband engaged in misconduct causing, inter alia, a diminution in the value of Weight Steel, was raised and necessarily decided against the plaintiff in the divorce action, and the plaintiff had a full and fair opportunity to litigate the issue in that action (see Karakash v Trakas, 163 AD3d 788, 789; Berardi v Berardi, 108 AD3d 406, 407). Therefore, the defendants demonstrated that the doctrine of collateral estoppel precluded the plaintiff from relitigating that issue in this action.”

Kralik v Marai 2023 NY Slip Op 02588 Decided on May 11, 2023
Appellate Division, First Department is an example of the many issues that confront a legal malpractice claim. Statute of limitations, service of process and the application of CPLR 3211(a)(1) in analysis of the “but for” case-within-a-case principle.

“Contrary to the court’s determination, plaintiff’s claim for legal malpractice was not barred by the three-year statute of limitations (CPLR 214[6]). Although the claim accrued on November 4, 2017, when defendant filed for arbitration of the underlying claims on plaintiff’s behalf, the statute of limitations was tolled until the conclusion of the arbitration proceeding on October 10, 2018, when the underlying claims were dismissed, under the continuous representation doctrine (see Shumsky v Eisenstein, 96 NY2d 164, 168 [2001]). Defendant’s representation of plaintiff in the arbitration proceeding pertained to the same subject matter as that underlying the legal malpractice claim (see id.; see also Davis v Cohen & Gresser, LLP, 160 AD3d 484, 486 [1st Dept 2018], lv denied 32 NY3d 911 [2018]). Accordingly, this action, commenced August 3, 2021, was timely.

Plaintiff does not dispute that defendant was improperly served the summons and complaint and, contrary to plaintiff’s contention, defendant did not waive her jurisdictional defenses. Defendant’s nonresponse to plaintiff’s waiver request did not amount to an intentional relinquishment of her rights (see EchoStar Satellite L.L.C. v ESPN, Inc., 79 AD3d 614, 617-618 [1st Dept 2010]).

Even if defendant’s jurisdictional defenses were waived, the documentary evidence utterly refuted plaintiff’s allegations that defendant failed to adequately apprise him of the deficiencies of his underlying claims before commencing the arbitration proceeding (see CPLR 3211[a][1]; Seaman v Schulte Roth & Zabel LLP, 176 AD3d 538, 538-539 [1st Dept 2019]). The evidence established that plaintiff opted to pursue arbitration despite defendant’s advice regarding the weaknesses of his claims, refuting plaintiff’s contention that, but for defendant’s inadequate advice, he would not have proceeded to arbitration and incurred the associated legal fees and costs. The documentary evidence also established that defendant’s representation comported with the terms of the parties’ retainer agreement. “

Darby Scott, Ltd. v Michael S. Libock & Co. LLC CPAs 2022 NY Slip Op 06746 [210 AD3d 582] November 29, 2022 Appellate Division, First Department gives a very short answer to whether “continuous representation” exists in accounting malpractice (aside from tax year calculations). It seems to where the accountants perform non-tax filing work.

“The record presents issues of fact as to whether the continuous representation doctrine applies to render plaintiff’s accounting malpractice claim timely—namely, whether the work by defendants’ representatives in September and October 2010 constituted a continuation of the services that are the subject of plaintiff’s claim, or at least constituted related remedial services (see Regency Club at Wallkill, LLC v Appel Design Group, P.A., 112 AD3d 603, 606-607 [2d Dept 2013]; Ackerman v Price Waterhouse, 252 AD2d 179, 205 [1st Dept 1998]).

Issues of fact also exist as to whether defendants breached their duty to plaintiff (see Berg v Eisner LLP, 94 AD3d 496, 496 [1st Dept 2012]). Although the engagement letters executed by the parties stated that defendants would perform bookkeeping and administrative tasks, neither party has offered an authoritative definition of the scope of these tasks. Nor has either party eliminated issues of fact as to whether the agreed-upon services were performed in a manner consistent with professional accounting standards (id.). Thus, the record presents issues of fact as to the scope of the engagement letters, and whether defendants’ alleged failure to notify plaintiff of recurring inventory and invoicing issues, or at least the full extent of those issues, constituted a breach of their duty (see Cumis Ins. Socy. v Tooke, 293 AD2d 794, 798 [3d Dept 2002]; cf. Italia Imports v Weisberg & Lesk, 220 AD2d 226, 226 [1st Dept 1995]).

Furthermore, issues of fact exist as to whether defendants proximately caused plaintiff’s damages. Even if it was plaintiff’s responsibility to track its inventory and implement internal controls, it is not clear as a matter of law whether at least some of plaintiff’s losses could have been avoided if defendants had fulfilled their duty to report known inventory and invoicing irregularities to plaintiff (see DG Liquidation v Anchin, Block & Anchin, 300 AD2d 70 [1st Dept 2002]). Plaintiff was not required to offer conclusive proof of the exact amount of damages it suffered in order to defeat an award of summary judgment in defendants’ favor. “