We read the AD decisions in order to educate ourselves, gain insight into how to phrase claims, how to defend claims and how to navigate the unique legal malpractice landscape. Saracino v Rosenberg, Calica & Birney, LLP 2025 NY Slip Op 06205
Decided on November 12, 2025 Appellate Division, Second Department is the reversal of a denial of summary judgment to the attorneys, but why?

“In an action, inter alia, to recover damages for legal malpractice, the defendant appeals from (1) an order of the Supreme Court, Nassau County (R. Bruce Cozzens, J.), entered June 29, 2023, and (2) an order of the same court entered February 7, 2024. The order entered June 29, 2023, denied the defendant’s motion for summary judgment dismissing the complaint and granted the plaintiffs’ cross-motion pursuant to CPLR 3025(b) for leave to amend the complaint. The order entered February 7, 2024, insofar as appealed from, upon reargument, adhered to the prior determinations in the order entered June 29, 2023, denying the defendant’s motion for summary judgment dismissing the complaint and granting the plaintiffs’ cross-motion pursuant to CPLR 3025(b) for leave to amend the complaint.

ORDERED that the order entered June 29, 2023, is reversed, on the law, the defendant’s motion for summary judgment dismissing the complaint is granted, the plaintiffs’ cross-motion pursuant to CPLR 3025(b) for leave to amend the complaint is denied, and so much of the order entered February 7, 2024, as, upon reargument, adhered to the prior determinations in the order entered June 29, 2023, denying the defendant’s motion for summary judgment dismissing the complaint and granting the plaintiffs’ cross-motion pursuant to CPLR 3025(b) for leave to amend the complaint is vacated; “

Here is the complete explanation:

“A plaintiff in an action alleging legal malpractice must prove that the defendant’s failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession proximately caused the plaintiff to suffer damages (see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 49; Casey v Exum, 219 AD3d 456, 456-457). “An attorney’s conduct or inaction is the proximate cause of a plaintiff’s damages if ‘but for’ the attorney’s negligence the plaintiff would have succeeded on the merits of the underlying action, or would not have sustained actual and ascertainable damages” (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d at 50 [citation and internal quotation marks omitted]). “A defendant seeking summary judgment dismissing a legal malpractice cause of action has the burden of establishing prima facie that he or she did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages” (Provenzano v Cellino & Barnes, P.C., 207 AD3d 763, 764 [internal quotation marks omitted]).

Here, the defendant met its burden by establishing, prima facie, that it did not fail to exercise the requisite skill and knowledge in its representation of the plaintiffs in the underlying actions. The defendant also established, prima facie, that, in any event, its alleged negligence in, inter alia, filing mechanic’s liens on behalf of the plaintiffs rather than pursuing arbitration did not proximately cause the plaintiffs’ damages.

In opposition, the plaintiffs failed to raise a triable issue of fact (see Sang Seok Na v Schietroma, 163 AD3d 597, 599; Richmond Holdings, LLC v David S. Frankel, P.C., 150 AD3d 1168, 1168-1169). Moreover, the plaintiffs failed to address those branches of the defendant’s motion which were for summary judgment dismissing the causes of action to recover damages for breach of fiduciary duty, fraud, and violation of Judiciary Law § 487 (see Clarke v New York City Health & Hosps., 210 AD3d 631, 633; Elstein v Hammer, 192 AD3d 1075, 1079-1080).

The plaintiffs’ contention that the defendant’s motion for summary judgment was premature is without merit (see Wei Ping Zheng v Sun & Son, Inc., 233 AD3d 733). Thus, the Supreme Court should have granted the defendant’s motion for summary judgment dismissing the complaint.”

Levy v Brancato 2025 NY Slip Op 34103(U) October 24, 2025 Supreme Court, New York County Docket Number: Index No. 159951/2024 Judge: Mary V. Rosado is the story of a representation, a battle over the retainer agreement, a “walk-off”, a fee arbitration and a de novo litigation.

“On January 6, 2023, Plaintiff retained Defendants to represent her in a guardianship proceeding. Plaintiff alleges she retained Defendants to facilitate settlement. Allegedly, on March 8, 2023, days before a settlement was to be so-ordered, Defendants Laura Brancato, Esq. (“Brancato”) and Lisa Fenech, Esq. (“Fenech”) “walked off [Plaintiffs] case”. Plaintiff provides a litany of alleged misconduct claims and claims she tried several times to terminate the retainer through e-mail and text messages to Brancato. Plaintiff disputed Defendants’ legal fees, and the parties participated in a fee dispute arbitration on September 19, 2024. A decision was issued on September 25, 2024, which Plaintiff disagreed with, so she filed this action seeking a trial de novo. She also alleges breach of contract, seeks declaratory judgment declaring the retainer null and void, and damages for alleged negligent supervision, legal malpractice, and violations of “CPLR 487” which this Court construes to be an alleged violation of Judiciary Law§ 487. Defendants responded with several affirmative defenses and counterclaims. According to Defendants, on January 20, 2023, they sent Plaintiff their standard engagement agreement, and in response Plaintiff asked that the hourly rate be lowered, that Defendants serve as co-counsel to her, and to remove other language. On January 24, 2023, Defendants sent a revised agreement. On February 3, 2023, Plaintiff signed and returned the retainer with an “addendum.” The Amended Answer goes on to detail an allegedly difficult attorney/client relationship. As a result, Defendants claim they sent Plaintiff a consent to change attorney on March 7, 2023 changing Plaintiffs status to prose, which Plaintiff signed. Defendants allege Plaintiff owes $44,308.50 in legal fees, $7,500 of which was covered by the original retainer fee. After fee arbitration, Defendants were awarded $39,877.65 in costs and disbursements, not including the $7,500 retainer fee. Defendants counterclaim for breach of contract, unjust enrichment, quantum meruit, and account stated. Plaintiff moves to dismiss the affirmative defenses and counterclaims and seeks to strike Defendants’ Amended Answers and asks for sanctions. Defendants oppose.”

“Plaintiff’s motion to dismiss is granted in part and denied in part. Plaintiff’s argument that the counterclaims should be dismissed because they were not raised in the fee dispute arbitration is without merit. Plaintiffs argument that the issue of attorneys’ fees for enforcing the retainer and litigating a fee dispute was not raised in the underlying fee dispute arbitration is belied by the terms of the retainer, the notice of client’s right to arbitrate a fee dispute, and Defendants’ filings in the arbitration (see NYSCEF Docs. 60, 67 and 87). These documents state that reasonable attorneys’ fees may be awarded in any dispute over the retainer, and that Defendants would be seeking attorneys’ fees in the arbitration. Plaintiff filed this de nova proceeding which nullified the arbitrator’s award and allows Defendants to again seek attorneys’ fees, just as Plaintiff is entitled to again dispute the amount in legal fees owed to Defendants. Plaintiffs argument that Defendants are not entitled to assert counterclaims because they did not file for a de novo review of the arbitration award is similarly without merit. Plaintiff timely filed for de novo review which nullified the fee dispute arbitration award and raised numerous other causes of action including negligent supervision and legal malpractice. Defendants are entitled to raise counterclaims in defense of Plaintiffs Complaint. Plaintiffs request that Defendants’ Amended Answers be stricken because Defendants reference the arbitrator’s award in the underlying fee dispute is denied. While Plaintiff is correct that 22 NYCRR § 137.8(c) states that at a trial de novo, arbitrators shall not be called as witnesses nor should the arbitration award be admitted in evidence, this matter is not at trial and there is no testimony from any arbitrator, nor has the arbitrator’s award been admitted into evidence. Plaintiffs arguments that the counterclaims for breach of contract, unjust enrichment, quantum meruit and account stated should be dismissed as duplicative of Plaintiffs claim for a de novo review is denied. Defendant’s counterclaims are separate and distinct from Plaintiffs claim for a de novo review – conceptually, a counterclaim cannot be duplicative of a claim asserted by a plaintiff because the claims are asserted by two parties adverse to one another. Plaintiffs argument that the retainer is unenforceable is unavailing at this juncture. Plaintiffs argument that the quantum meruit counterclaim should be dismissed due to Defendants’ professional misconduct is not ripe for review on a CPLR 3211 motion to dismiss, for it requires discovery and factual determinations. Moreover, Plaintiff has failed to meet her heavy burden of establishing the affirmative defenses raised should be dismissed as a matter of law (see, e.g. Granite State Ins. Co. v Transatlantic Reinsurance Co., 132 AD3d 479,481 [1st Dept 2015]). However, the motion is granted to the extent the counterclaim asserted by Fenech and Meltzer Lippe alleging account stated is dismissed. Based on the allegations related to the counterclaim and the parties’ submissions, Plaintiff frequently expressed concerns at what she was being billed for and objected (NYSCEF Doc. 42; see also Brennan Beer Gorman/Architects, LLP v Cappelli Enterprises, Inc., 85 AD3d 482, 483 [1st Dept 2011] [ no account stated claim where client repeatedly objected]). The Court has considered the remainder of Plaintiffs arguments and finds them unavailing.”

Matter of Agiovlasitis 2025 NY Slip Op 34090(U) October 30, 2025 Surrogate’s Court, New York County Docket Number: File No. 2024-416 Judge: Rita Mella goes into a plethora of things that never came up in Trusts and Estates, including “affidavits of comparison”, lost and replacement wills and Judiciary Law 487 deceit.

“The pertinent facts are as follows. Decedent died on January 20, 2024. Proponents filed a probate petition on February 9, 2024, offering a purported will dated January 13, 2024 (2024 Will), that named Proponents as the nominated executors. Landsman and Glass, who were attorneys at the same law firm, were allegedly witnesses to the 2024 Will. The petition lists Landsman as an attorney-drafter, and Glass filed an affidavit of comparison. Preliminary letters were issued to Proponents on March 15, 2024.”

“On November 14, 2024, Glass filed a detailed affirmation in which he admitted that the 2024 Will was not the document signed by Decedent, and that he had “modified” the document outside of Decedent’s presence, after Decedent signed it. Glass annexed to his affirmation what he characterized as “an exact true and complete final draft of the of [sic] Last Will and Testament that was signed by the Testator and witnessed by Mr. Landsman and myself on January 13, 2024” (Glass Aff. ,25). Also on November 14, 2024, Proponents filed the third amended probate petition asking the court to probate the draft purported will referenced by Glass as a “destroyed” will under SCP A 1407.”

“Here, the third amended petition is premised on SCP A 1407. Pursuant to that provision, a lost or destroyed will may be admitted to probate if 1) it is established that the will has not been revoked, 2) execution of the will is proved in the manner required for the probate of an existing will, and 3) all of the provisions of the will are clearly and distinctly proved by each of at least two credible witnesses or by a copy or draft of the will proved to be true and complete. The court concluded that the allegations in the petition and the statements in Glass’s affirmation, which on this motion the court accepts as true, were sufficient to satisfy all elements of SCP A 1407 (see e.g. Matter of Castiglione, 40 AD3d 1227, 1229 [3d Dept 2007] [lost will was properly admitted to probate under SCP A 1407 where, inter alia, petitioner “offered a signed photocopy of the will, along with a sworn statement by [the attorney-draftsperson] that this copy was an exact replica of the original will”]). In reaching this determination, the court considered Movant’ s argument that the success of the third amended petition hinges on the statements in Glass’s affirmation, and that the petition must therefore be dismissed because Glass is an inherently incredible witness. However, the court found Movant’s contention unavailing, given that the petition, coupled with Glass’s affirmation, satisfies all elements of SCP A 1407, and Movant failed to establish that any allegations or statements made by Glass in his affirmation are inherently incredible. The court also noted that it would be premature to make credibility determinations at this stage. Discovery has not yet been conducted. Indeed, issue has not even been joined. Under these circumstances, none of Movant’s cited cases, which are primarily personal injury cases at the summary judgment or trial stage, support the conclusion that dismissal of the petition is warranted.

The court next addressed Movant’s contention, based on CDR Creances S.A.S. v Cohen (23 NY3d 307 [2014]), that the court must either dismiss the petition or strike Glass’s affirmation because Glass committed fraud on the court. In that case, after the Supreme Court held a full evidentiary hearing and concluded that various parties to a lawsuit had engaged in egregious conduct, the Court of Appeals stated that “where a court finds, by clear and convincing evidence, conduct that constitutes fraud on the court, the court may impose sanctions including, as in this case, striking pleadings and entering default judgment against the offending parties to ensure the continuing integrity of our judicial system” (id. at 311, 315-316). By contrast, here, no evidentiary hearing has been conducted and the proceeding is in the pre-answer stage. Moreover, Glass is neither a party nor an attorney for any party to this proceeding, and the relief requested would penalize Proponents, two of whom, at least on the record before the court at this time, do not appear to have played a role in Glass’s actions. Further, if, in fact, Decedent intended for a signed version of the draft purported will to be his Last Will and Testament, the relief requested would also thwart Decedent from disposing of his property as he wished. 1

1 Movant also argued that Judiciary Law § 487, which states that an attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party … [i]s guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action,” supports dismissal of the petition. However, Movant failed to establish that this statute has any bearing on the issues presently before the court. Furthermore, a claim under Judiciary Law § 487 must be brought by petition, not by motion as here (see Matter of Rappaport, NYLJ, Sep. 6, 2017, at 22, col 3 [Sur Ct, NY County]).”

Babad v Oratz 2025 NY Slip Op 05490 Decided on October 8, 2025 Appellate Division, Second Department is short and to the point. New evidence, obtained after dismissal of the prior case cannot support collateral estoppel.

“In June 2023, the plaintiff commenced this action to recover damages for fraud, aiding and abetting fraud, and violation of Judiciary Law § 487. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint. In an order dated December 14, 2023, the Supreme Court granted the motion on the ground that the action was barred by the doctrines of collateral estoppel and res judicata.

“Pursuant to CPLR 3211(a)(5), a party may move to dismiss a [complaint] based on the doctrine of res judicata or collateral estoppel” (Joseph v Bank of N.Y. Mellon, 219 AD3d 596, 597). “Under the doctrine of res judicata, a disposition on the merits bars litigation between the same parties or those in privity with them of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding” (Goldstein v Massachusetts Mut. Life Ins. Co., 32 AD3d 821, 821; see Paramount Pictures Corp. v Allianz Risk Transfer AG, 31 NY3d 64, 72-73). The doctrine of collateral estoppel “precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding 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; see Matter of A. Ottavino Prop. Corp. v Incorporated Vil. of Westbury, 203 AD3d 920, 921). “The party seeking the benefit of collateral estoppel bears the burden of proving that the identical issue was necessarily decided in the prior action and is decisive of the present action, and the party against whom preclusion is sought bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination” (Fowler v Indymac Bank, FSB, 176 AD3d 682, 684 [alteration and internal quotation marks omitted]; see Matter of Dunn, 24 NY3d 699, 704).

Here, contrary to the determinations of the Supreme Court, the issues raised in the instant action were not decided and could not have been raised in a prior action to which the plaintiff was a party. Accepting the facts as alleged in the complaint as true (see Leon v Martinez, 84 NY2d 83, 87), the evidence on which the plaintiff relies was discovered subsequent to entry of a judgment in the prior action (see Altman v Orseck, 235 AD3d 818, 819; Specialized Indus. Servs. Corp. v Carter, 68 AD3d 750, 752). Accordingly, neither res judicata nor collateral estoppel bars the plaintiff from litigating the instant action against the defendants.”

Balestriere PLLC v Ray 2025 NY Slip Op 34005(U) October 15, 2025 Supreme Court, New York County Docket Number: Index No. 154425/2023 Judge: Mary V. Rosado is a multiple attorney v. client fee and Judiciary Law 487 claim which was dismissed this month. We wonder whether Urias v. Daniel P. Buttafuoco & Associates, 41 N.Y.3d 560, 568 (2024) was considered?

“Plaintiff is a law firm that formerly represented Ray in a litany of lawsuits against Ray’s ex-wife. As alleged in the Complaint, Ray retained Plaintiff on October 3, 2010, and Plaintiff continued to represent Ray until January 2016. As a result of that litigation, a judge issued sanctions in favor of Ray’s ex-wife and against Plaintiff. Plaintiff settled the sanctions order against it. Ray fired Plaintiff, retained another firm, and appealed the sanctions order, which the First Department reversed. As Plaintiff no longer represented Ray, Plaintiff issued a final invoice, which Ray allegedly refused to pay.”

“After a jury trial, the jury returned a verdict in favor of Plaintiff on Ray’s unpaid legal fees and dismissed all of Ray’s claims against Plaintiff. Ray appealed to the Second Circuit, which affirmed the jury’s findings (see Ray v Fariello, 2024 WL 390293 [2d Cir 2024]). During the pendency of the appeal before the Second Circuit, Plaintiff sued Defendants in New York State Court for malicious prosecution, tortious interference with prospective business relations, and Judiciary Law § 487. Defendants move to dismiss and seek the imposition of sanctions. Defendants’ motion is granted in part and denied in part.”

“Plaintiffs Judiciary Law§ 487 claim is dismissed. It is well established that a violation of Judiciary Law § 487 does not give rise to a separate plenary action but must be brought in the action where the alleged deceit or misconduct in violation of the statute occurred, in this case, in the Southern District of New York (see Chibcha Restaurant, Inc. v David A. Kaminsky & Associates, P.C., 102 AD3d 544, 545 [1st Dept 2013] quoting Yalkowsky v Century Apartments Associates, 215 AD2d 214 [1st Dept 1995]; see also Menitzky v Owen, 19 AD3d 201 [1st Dept 2005]). Plaintiff likewise could have sought sanctions against Defendants in the underlying action for what it deemed to be inappropriate or deceitful comments made during closings. Therefore, this branch of Defendants’ motion is granted.”

From Urias: “[1] We conclude, however, that section 487 authorizes a plenary action for attorney deceit under these circumstances. The text of the statute allows recovery of treble damages “in a civil action” where “[a]n attorney . . . [i]s guilty of any deceit or collusion . . . with intent to deceive the court or any party” (Judiciary Law § 487). The phrase “in a civil action” is most naturally read to include a plenary action. Notably, the provision does not differentiate between an action that might undermine or undo a final judgment and one that does not, or between allegations of fraud that are intrinsic to the underlying action, as opposed to extrinsic. Interpreting the statute to permit a plenary action where the remedy would not entail undermining a final judgment (for example, when the deceit harms a prevailing party), but deny one where a final judgment could be impaired, would require us to rewrite the statute. That we cannot do.”

Jfurti, LLC v Mintz, Levin, Cohn, Ferris, Glovky & Popeo, P.C. 2025 NY Slip Op 33977(U) October 15, 2025 Supreme Court, New York County Docket Number: Index No. 155965/2024 Judge: Anar R. Patel is the story of a $ 38 Million judgment which just faded away.

“Jfurti is a Delaware limited liability company whose sole member is nonparty Jacob
Frydman (“Frydman”). Ledgerock is a New York limited liability company of which Frydman is also the sole member. Ledgerock was the owner of a certain residential property located in Hyde Park, New York (“Ledgerock Property”) that was Frydman’s personal residence (NYSCEF Doc. No. 56, Exhibit F). Defendant is a law firm that represented Jfurti in an action to enforce a $16 million promissory note captioned as JFURTI, LLC v Suneet Singal, et al., NY County Index No. 656273/2016 (“Collection Action”) (NYSCEF Doc. No. 28, “Am. Compl.” ¶¶ 37, 39). Jfurti prevailed in the Collection Action and, in December 2017, obtained a judgment against Suneet Singal (“Singal”) and 13 entities controlled by him (collectively “Judgment Debtors”), in the amount of $21,221,676.53, which Plaintiffs claim is now worth more than $38.7 million after
interest (“the Judgment”) (Am. Compl. ¶ 1).

On February 23, 2018, Jfurti and Frydman entered into an amended engagement agreement with Defendant (NYSCEF Doc. No. 57, “Amended Engagement”). In relevant part, the Amended Engagement provided that Defendant would represent Jfurti in the collection of the Judgment, in exchange for which Defendant would receive a portion of the recovery (Amended Engagement at 2). The Amended Engagement specified that the scope of Defendant’s engagement did not extend to affiliates of Jfurti (Amended Engagement, Engagement Memorandum at 1). Nonparty Christopher Sullivan (“Sullivan”), then a partner at Defendant, was the lead attorney representing
Jfurti in the Collection Action and subsequent Judgment enforcement actions until May 2022, at which time he changed firms.”

“On April 19, 2019, Plaintiffs and Frydman executed a Funding and Investment Agreement with nonparty Curiam Investments 2 LLC (“Curiam”), a litigation finance provider (NYSCEF Doc. No. 58, “Funding Agreement”). Frydman signed the Funding Agreement on behalf of himself, Jfurti, and Ledgerock, under a heading that reads “ACCEPTED AND AGREED,” along with Curiam’s representative. Sullivan also signed the Funding Agreement on behalf of Defendant, under a separate heading that read “Acknowledged and Agreed.” Plaintiffs claim that Defendant was party to the Funding Agreement, which Defendant denies. The Funding Agreement’s preamble defines its “Parties” as Curiam “together with Judgment Creditor [Jfurti], Ledgerock and Frydman” (Funding Agreement, Preamble).

Pursuant to the Funding Agreement, Curiam made a $6 million upfront payment to Jfurti in exchange for purchasing an approximately 25% interest in the Judgment (Am. Compl. ¶¶ 3–4; Funding Agreement § II.A). Jfurti was responsible for reimbursing Curiam for the $6 million “Investment Amount” and for payment of an additional “Funder Return” out of its share of the collections on the Judgment (Funding Agreement §§ I.R., III.A; Appendix 3 § 3). Frydman and Ledgerock both executed guarantees concurrently with the Funding Agreement. Ledgerock also executed a mortgage for the Ledgerock Property with Curiam as collateral for Jfurti’s repayment obligations (Funding Agreement, Exhibit D, “Curiam Mortgage”). The Curiam Mortgage gave Curiam the option to foreclose on the Ledgerock Property in the event of a default (id. § 7.03).
The Funding Agreement provided that Curiam’s failure to receive “on or prior to the fifth (5th) anniversary of the date hereof . . . an amount equal to the Investment Amount plus the Funder Return” would constitute a default (Funding Agreement § VI.C). Plaintiffs allege that Defendant persuaded them to enter the Funding Agreement after Sullivan oversaw a due diligence investigation that found there was “no reason why it would not be able to collect at least the amount needed to re-pay Curiam and the Repayment Obligation” within five years and to release the collateral (id. ¶¶ 7–9).
Plaintiffs maintain that Defendant “did an admirable job pursuing enforcement of the
Judgment” in the two years after entering the Funding Agreement, with Sullivan overseeing these efforts (id. ¶ 14). Defendant domesticated the Judgment in multiple jurisdictions and commenced enforcement and collection proceedings (id. ¶ 15). Defendant allegedly identified executable assets including a bank account with approximately $220,000, two luxury vehicles, a $25 million note due to the Judgment Debtors, and 89 million shares of stock in a publicly traded company, PhotoMedix (id. ¶ 16). Sullivan allegedly caused the PhotoMedix shares, worth approximately $20 million at the time, to be seized by the New York Marshal (id. ¶¶ 16–17). The shares were
not subsequently sold.

In May 2022, Sullivan departed Defendant and began working at a different law firm,
Nutter McClennen & Fish LLP (“Nutter”) (Am. Compl. ¶ 18; NYSCEF Doc. No. 56 Exhibit C ¶ 6). The parties dispute whether Defendant remained counsel for Jfurti in the Judgment enforcement matters. Plaintiffs allege Defendant continued its epresentation of them until January 17, 2024 (Am. Compl. ¶ 74). Defendant claims that Frydman authorized it to transfer its files for the Jfurti matters to Sullivan at Nutter, producing a Client File Transfer Request Form dated May 23, 2022 (NYSCEF Doc. No. 56 Exhibit C, “Transfer Request Form”). Plaintiffs dispute the authenticity of the Transfer Request Form and claim that Frydman never signed such a document (Am. Compl. ¶ 68). Defendant’s Information Governance department e-mailed Nutter on June 30,
2022 with an embedded link for the files related to the Jfurti matter (NYSCEF Doc. No. 59 at 5–6, 35–36). However, none of the parties produce any communications between Plaintiffs, Frydman, Defendant, and Sullivan about Sullivan’s move or the putative transfer of the Judgment matters.”

“”A plaintiff states a cause of action for legal malpractice where it alleges facts “that, if
proven at trial, would 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’ (Kaplan v Conway & Conway, 173 AD3d 452, 452 [1st Dept 2019], quoting Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). “An attorney’s conduct or inaction is the proximate cause of a plaintiff’s damages if but for the attorney’s negligence” the plaintiff “would not have sustained actual and ascertainable damages” (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 50 [2015], rearg denied 27 NY3d 957 [2016] [internal quotation marks and citations omitted]). It is well-established that “absent an attorney client relationship, a cause of action for legal malpractice cannot be stated” (Federal Ins. Co. v North Am. Specialty Ins. Co., 47 AD3d 52, 59 [1st Dept 2007]; see also Volpe v Munoz & Assoc., LLC, 190 AD3d 661, 662 [1st Dept 2021]).”

“The Court finds that Defendant’s documentary evidence does not conclusively establish that it terminated its attorney-client relationship with Jfurti at the time of Sullivan’s departure from the firm in May 2022. The authenticity of the Transfer Request Form is disputed and that document is therefore not credited (see VXI Lux Holdco S.A.R.L., 171 AD3d at 193). Defendant’s internal e-mails and communications with Nutter also do not establish when, if ever, it communicated its intent to terminate its representation of Jfurti and transfer the matter to Nutter. The Court also finds that Defendant does not submit documentation showing when, if ever, Nutter
assumed representation of Jfurti in the Judgment enforcement matters.”

More on this decision in the next blog article.

Peck v Milbank LLP 2025 NY Slip Op 05895 Decided on October 23, 2025
Appellate Division, First Department is an odd judiciary Law 487 case, with overlapping issues of deceit and conflict of interest in a trust setting.

“The cause of action for violation of Judiciary Law § 487 fails to allege any cognizable acts of deception. Plaintiffs alleged that defendants’ commencement and pursuit of enforcement litigation on certain notes was knowingly false and misleading insofar as defendants knew that the enforcement litigation was contrary to the decedent noteholder’s estate plan. Even if defendants indirectly controlled the note litigation, the alleged misconduct — pursuing litigation in (possible) violation of the terms of a trust — is not the type of intentional misrepresentation addressed by Judiciary Law § 487. As this Court has previously recognized, it is not clear what the trust provision means or whether it was even operative before probate of the will (see Matter of Peck, 191 AD3d 537, 537 [1st Dept 2021]). Even if the individual defendant, attorney Georgiana J. Slade, Esq., at some point subjectively believed that the trust provision barred enforcement of the notes, she was entitled to change her mind or to press a different, also-reasonable interpretation in zealously advocating for her client, even if that interpretation might ultimately be found to be without merit (see Bill Birds, Inc. v Stein Law Firm, P.C., 35 NY3d 173, 180 [2020]; Kaufman v Moritt Hock & Hamroff, LLP, 192 AD3d 1092, 1093 [2d Dept 2021]; see also Alliance Network, LLC v Sidley Austin LLP, 43 Misc 3d 848, 860 [Sup Ct, NY County 2014]).

Plaintiffs separately allege that defendants improperly represented the decedent and his estate despite the existence of undisclosed conflicts of interest. Insofar as defendants never represented the decedent in litigation, “there was no court or party to be deceived within the meaning of the statute” with respect to this representation (see Bill Birds, 35 NY3d at 178-179; see also Doscher v Manatt, Phelps & Phillips, LLP, 148 AD3d 523, 524 [1st Dept 2017]). Although defendants did represent the decedent’s estate in court, no qualifying conflict of interest has been alleged (see generally Rules of Professional Conduct [22 NYCRR] § 1200.0, Rule 1.7[a]). Plaintiffs alleged that Slade’s father shared financial interests with the decedent and harbored personal animosity toward plaintiff, but plaintiffs did not allege that Slade shared her father’s negative feelings or that she knew she stood to inherit the shared investments, even if she was aware that they existed. Nor have plaintiffs explained how having such a shared financial interest would adversely affect Slade’s professional judgment in the context of the note or probate litigation (see Power Play 1 LLC v Norfolk Tide Baseball Club, LLC, 2017 WL 5312193, 2017 US Dist LEXIS 187365, *8-10, *3-4 [SD NY Nov. 13, 2017, 17cv4831]).

Plaintiffs additionally alleged that Slade misrepresented in an affidavit filed in the note litigation that the decedent’s estate plan did not bar enforcement of the notes. But for the reasons explained above, this reading of the trust provision was not unreasonable, even if it conflicted with Slade’s own prior subjective understanding of this provision. That Slade claimed to have a different recollection of the substance of a phone call also does not suggest any intentional misrepresentation.

Plaintiffs also alleged that Slade misrepresented in her depositions in the note litigation and probate proceeding that she was not aware during the decedent’s lifetime of her father’s co-investment in property with him. Insofar as the second deposition was taken after defendants formally withdrew as counsel, it is outside the purview of Judiciary Law § 487 (see Altman v DiPreta, 204 AD3d 965, 968-969 [2d Dept 2022], lv denied 38 NY3d 913 [2022]; Manhattan Sports Rests. of Am., LLC v Lieu, 137 AD3d 504, 505 [1st Dept 2016]). The statements in the first deposition — that Slade “had no specific recollection” of having any contemporaneous knowledge of such co-investments — were not inconsistent with the existence of two footnotes referencing the co-investments in a much longer memorandum drafted over ten years earlier.”

Will B. Sandler Disclaimer Trust v Swersky 2025 NY Slip Op 05909 Decided on October 23, 2025 Appellate Division, First Department is a unique legal malpractice case brought, unsuccessfully, against a non-attorney.

“Nonparty Will B. Sandler was an attorney who entered into a number of business ventures with defendant David M. Swersky over the course of approximately 30 years. In addition to being a co-investor in the ventures, Sandler typically acted as counsel, negotiating and drafting the deal documents. Swersky typically acted as the sole manager and controlling partner of the joint venture. Sandler and Swersky formed defendant S&S 34 Investors LLC as a vehicle through which they would invest in Manhattan real estate. According to the complaint, Sandler received an 8.518% interest in S&S. In 2014, Swersky and Sandler invested in an entity that held an interest in real property located at 460 West 34th Street (2014 transaction).

Sandler died in 2015 and, upon his death, his wife, plaintiff Muriel Sandler, rejected the bequest of Sandler’s interest in S&S, which then passed to plaintiff Will B. Sandler Disclaimer Trust. Muriel is the sole beneficiary of the Trust and she and her two children are its Trustees.

Plaintiffs commenced this action alleging that defendants improperly withheld from plaintiffs $3.5 million in proceeds from Sandler’s interest in S&S and actively concealed this from plaintiffs. Defendants asserted a counterclaim for rescission against plaintiffs, alleging that the 2014 transaction was the product of Sandler’s breach of the New York Rules of Professional Conduct or, alternatively, a breach of Sandler’s fiduciary duty as Swersky’s attorney. Defendants also asserted a counterclaim for legal malpractice against plaintiffs, alleging that Sandler committed legal malpractice through his various errors and intentional acts surrounding the 2014 transaction.

Supreme Court properly granted plaintiffs’ motion to dismiss the counterclaims for failure to state a cause of action as against plaintiffs because plaintiffs are not the proper parties to the counterclaims. Despite being labelled as a claim for rescission, the first counterclaim asserts a claim against plaintiffs for Sandler’s alleged breach of his ethical and fiduciary duty to defendants. This counterclaim is based only on the alleged conduct of Sandler and not on the conduct of plaintiffs. Accordingly, there is no basis to assert the counterclaim against plaintiffs, who did not owe an ethical or fiduciary duty to defendants.”