Melendez v Renfroe, Driscoll & Foster, LLP  2020 NY Slip Op 32600(U) August 11, 2020 Supreme Court, New York County  Docket Number: 157344/2019 Judge: W. Franc Perry tells a familiar story.  Familiar as in family.  Legal malpractice can take place in any legal setting, whether injury,  inheritance, invention or intellectual settings.  Siblings fighting over ineritance is a frequent trope.  This case is about whether the mother and father favored the two other siblings over plaintiff.

“This legal malpractice action arises out of the Defendants’ representation of Plaintiff in an action before the Surrogate’s Court, County of Suffolk, regarding the disposition of certain assets of Luis Melendez, Plaintiff’s father. Following an adverse decision to Plaintiff issued by the Honorable John M. Czygier, Jr., Plaintiff brings this action alleging malpractice against
Defendants. Defendants Renfroe, Driscoll & Foster LLP and Patrick Foster (collectively, “Foster”) move to dismiss the complaint as against them.”

“At trial, Plaintiff alleged that he began to assume control of Adel over time through sweat equity and controlled M. Brothers since its inception, that his father had signed a stock power transferring 50% of M. Brothers (that belonged to Adelaida at the time) to him on March 21, 2008, and that his parents had all along intended for him to inherit Adel. (NYSCEF Doc No. 31 at 1.) Plaintiff also alleged that, six days before he passed and while suffering from ALS, dementia, cancer, and a broken hip, his father signed a gift tax return indicating that he had transferred ownership of Adel to Plaintiff.

After the 4-day bench trial, Judge Czygier, Jr., ruled in favor of Adelaida, holding that Plaintiff failed to meet his burden in proving that Luis gifted the assets to Plaintiff. In pertinent
part, Judge Czygier, Jr. indicated that to believe Plaintiff’s narrative would require “a suspension of belief,” that he found Plaintiff’s testimony incredible, that Plaintiff forged his father’s signature, and that Plaintiff had fabricated a document arranging a lease between the two asset companies.

Plaintiff alleges that the Defendants were negligent: 1. in failing to subpoena Adelaida or call her to the stand; 2. in failing to call Alan Gellerman, the accountant for the asset companies, to the stand; 3. in failing to call unspecified employees of the asset companies to the stand; and 4. in failing to submit the gift tax return into evidence (collectively, the “alleged malpractice”).”

“Here, Plaintiff fails to set forth a cause of action for legal malpractice because he cannot show that “but for” the alleged malpractice, he would have prevailed in the underlying action. For one, Plaintiff alleges that Foster should have called Adelaida to the stand, specifically to question her about her deposition testimony regarding her and her husband’s intention to give Adel to the Plaintiff in lieu of the $500,000.00 given to his two brothers. (NYSCEF Doc No. 37 at 9-10.) Plaintiff indicates that this is a party admission that should have been brought up at trial. However, the deposition testimony immediately prior to the excerpt cited by Plaintiff in his opposition only indicates that Adelaida’s intention was to bequeath Adel to Plaintiff after both her and her husband had passed away. (NYSCEF Doc No. 26 at 109.) There are no specific factual allegations that any line of questioning of Adelaida would have altered Judge Czygier, Jr.’s ultimate decision on the testamentary intent of Adelaida and her husband.

Further, Judge Czygier, Jr. found the Plaintiff’s testimony regarding his purported ownership of Adel and M. Bros incredible for several reasons. First, Plaintiff admitted to signing
a State Liquor Authority application, a stock purchase agreement, and a resignation letter all on his father’s behalf, which fell far short of meeting the clear and convincing standard required to establish donative intent. Second, Judge Czygier, Jr. specifically discounted the credibility of the gift tax return in question because it was “purportedly executed on October 13, 2013 . . . six days before the decedent died, at a time when, by any measure, his physical and mental condition was deteriorating.” (NYSCEF Doc No. 31 at 21.) There are no specific factual allegations indicating that Gellerman’s testimony would have swayed Judge Czygier, Jr. to believe that the transfer was legitimate, especially considering that the Judge specifically considered the gift tax return and knew the extent of Gellerman’s alleged involvement in its preparation.

In light of the documentary evidence and after accepting as true all facts alleged in the complaint, Plaintiff has failed to show that “but for” the alleged malpractice, he would have
prevailed in the underlying action. The complaint fails to state a cause of action for malpractice because it does not sufficiently allege that Defendants’ negligence was the proximate cause of Plaintiff’s damages. Because Plaintiff has failed to establish proximate cause, dismissal is required. (Leder v Spiegel, 31 AD3d at 268.)”

One might engage in a plethora of unacceptable acts, yet not be responsible for legal malpractice.  How can this be?  Might one delay a case for two years and still be safe from a law suit?  Can one arrange for a client to take a 23% interest rate litigation loan, yet still avoid a claim?  The answer is definitely “yes.”

Graham v Law Offs. of Spar & Bernstein, P.C.  2020 NY Slip Op 32563(U) August 7, 2020 Supreme Court, New York County Docket Number: 155996/2019 Judge: W. Franc Perry  is a good example.    “Plaintiff commenced this action on June 17, 2019, setting forth three causes of action. First, Plaintiff alleges that S&B deviated from good and accepted practice by failing to commence Action 1 for two years and by failing to make a motion for summary judgment in a case where there was a presumption of liability because Plaintiff’s vehicle was struck in the rear. Second, Plaintiff alleges that S&B deviated from good and accepted practice by advising her to enter into the funding agreements with Golden Pear. Third, Plaintiff alleges that S&B deviated from good and accepted practice by failing to arbitrate the Plaintiff’s denial of No-Fault benefits, causing her to rely on her private health insurer for her neck surgery, resulting in a $60,000.00 medical lien. ”

“In Plaintiff’s first claim for legal malpractice, she alleges that Defendants deviated from good and accepted practice by failing to file a motion for summary judgment. She alleges that
“[a]s a result of the defendants’ negligence in not obtaining summary judgment at the earliest possible time, the plaintiff lost the benefits of having summary judgment on liability at a sooner time.” (NYSCEF Doc No. 2 at ¶ 41.)

While it is true that a rear-end collision with a stopped vehicle establishes a prima facie case of negligence (Quiros v Hawkins, 180 AD3d 500, 501 [1st Dept 2020]), Plaintiff has failed
to demonstrate a meritorious cause of action for legal malpractice. Plaintiff fails to include any specific factual allegations to support her claim that “but for” the Defendants’ failure to
expeditiously file a motion for summary judgment, she would have achieved a more favorable result. (See Crawford v Himmelstein, 2011 WL 2552326 [Sup Ct, NY County 2011], citing Wexler v Shea & Gould, 211 AD2d 450 [1st Dept 1995].) Rather, Plaintiff merely alleges in a conclusory fashion, that the motion for summary judgment could have been brought at an earlier time and that would have constituted a benefit to her. (Rodriguez v Jacoby & Meyers, LLP, 126 AD3d 1183, 1185–86, [3d Dept 2015].) Further, the prior action settled for the full amount of the prior defendants’ Geico policy; thus, a more favorable result was not possible. ”

“Geico chose to discontinue Plaintiff’s No-Fault benefits because an independent medical examination caused Geico to determine that no further treatment was necessary. Plaintiff alleges that Defendants’ choice to not arbitrate that decision constitutes legal malpractice. Defendants respond that the choice to not arbitrate was a strategic one, because if they had lost at the arbitration, Plaintiff would have been collaterally estopped from using her injuries as evidence in the forthcoming litigation.

“[A]n attorney is not held to the rule of infallibility and is not liable for an honest mistake of judgment, where the proper course is open to reasonable doubt. Thus, ‘selection of one among several reasonable courses of action does not constitute malpractice.’” (Bernstein v Oppenheim & Co., P.C., 160 AD2d 428, 430 [1st Dept 1990], citing Rosner v Paley, 65 NY2d 736, 738 [1985].) “To establish entitlement to the protection of the attorney judgment rule, an attorney must offer a ‘reasonable strategic explanation’ for the alleged negligence.” (Ackerman v Kesselman, 100 AD3d 577, 579 [2d Dept 2012].)

Here, Defendants’ course of action in not arbitrating the denial of benefits was reasonable. Collateral estoppel applies in the context of arbitration decisions regarding the denial of No-Fault benefits. (Acevedo v Holton, 239 AD2d 194 [1st Dept 1997]; Uptodate Medical Services, P.C. v State Farm Mutual Auto. Ins. Co., 23 Misc 3d 42 [2d Dept 2009]; Rozewski v  Krautmann, 151 AD3d 1945 [4th Dept 2017].) Thus, as alleged in the Complaint, Defendants’ decision does not constitute malpractice.”

Physician is sued for office rent.  It’s a lot and the case comes down to whether he signed a guarantee or not.  Eventually his attorneys submit an unsworn report (affidvavit ?) of a handwriting expert.  Not good enough.  Legal malpractice follows and is dismissed in Antell v Goldstein  2020 NY Slip Op 32573(U) August 6, 2020 Supreme Court, New York County
Docket Number: 161770/2019 Judge: Kathryn E. Freed.  Unsworn reports of experts are really of no value and cannot be considered by the Court.  The legal malpractice flounders on the “but for” rule.

“Antell clearly failed to meet this test, since the complaint is devoid of any mention of a breach by defendants of their duty to him, the standard of care owed to him by the defendants, or proximate cause. 2 Nor does Antell allege that the defendants were negligent. Doc. 5. Therefore, the legal malpractice claim is dismissed pursuant to CPLR 3211(a)(7). Even assuming, arguendo, that the claim was properly pleaded, plaintiff has failed to establish that he would have prevailed in the underlying action but for the defendants’ malpractice (see U Joan Sung v Park, 181 AD3d454 [!81 Dept 2020]) given Justice Hagler’s finding that the expert report submitted by Antell did not conclusively establish that the signature on the guaranty was a forgery. Doc. 6 at 22.”

The claim is that the attorneys waived an evidentiary hearing, without consent.  Does that state a cause of action for legal malpractice?  In Law Firm of Alexander D. Tripp, P.C. v Fiorilla
2020 NY Slip Op 32636(U) August 6, 2020 Supreme Court, New York County Docket Number: 654991/2019 Judge: Lucy Billings it does.

“In the Citigroup Global Markets proceeding, Citigroup Global Markets moved for sanctions, including attorneys’ fees, against both defendant and his attorney, plaintiff, August 4, 2017. Although by November 9, 2017, defendant had retained another attorney for this litigation, defendant alleges that ·plaintiff still represented him as well and on that date agreed with Citigroup Global Markets’ attorney that its motion for sanctions raised no factual issues, obviating the need for an evidentiary hearing. Defendant claims that plaintiff’s waiver of anevidentiary hearing was malpractice, because he did raise factual issues that would have been determined in his favor at a hearing and would have reduced the $213,832.50 award of sanctions, attorneys’ fees, and expenses against him. ”

“By alleging that plaintiff’s choice to forego an evidentiary hearing was incompetent and unreasonable, because it was obvious that a hearing would successfully reduce the sanctions award and thus benefit plaintiff, defendant states a claim for plaintiff’s professional negligence. Sejfuloski v. Michelstein & Assoc . , PLLC, 137 A.D.2d 549, 549-50 (1st Dep’t 2016);  Fenasca Delgado v. Bretz & Coven, LLP, 109 A.D.3d 38, 43-44 (1st Dep’t 2013). This alleged malpractice caused defendant’s alleged damages in the form of an attorneys’ fees award unreduced from the full amount Citigroup Global Markets claimed. Baram v. Person, 153 A.D.3d 1183, 1183 (1st Dep’t 2017); Caso v. Miranda Sambursky Sloane Sklarin Ver Veniotis LLP, 150 A.D.3d 422, 423 (1st Dep’t 2017); O’Neal v. Muchnick Golieb & Golieb, P.C., 149 A.D.3d at 636; Rubin v. Duncan, Fish & Vogel. L.L.P., 148 A.D.3d at 433. See Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442-43 (2007); Exeter Law Group v. Immortalana Inc., 158 A.D.3d 576, 577 (1st Dep’t 2018); Macquarie Capital (USA) v. Morrison & Foerster LLP, 157 A.D.3d 456, 456-57 (1st Dep’t 2018); Garnett v. Fox, Horan & Camerini, LLP, 82 A.D.3d 435, 435 – 36 (1st Dep’t 2011) . “

Most people as well as a lot of lawyers stop their legal malpractice analysis at the first element:  departure from good practice.  The battle in real legal malpractice cases almost always takes place in the third element:  “but for” proximate causation.  Lindenwood Vil., Section C Coop. Corp. v  Denenberg ,2020 NY Slip Op 32572(U) August 6, 2020 Supreme Court, New York County,  Docket Number: 160882/2019 Judge: Kathryn E. Freed is a good example.  Delay in filing the Notice of Entry from the Appellate Division allowed a party to seek leave to the Court of Appeals a long time later.  A good legal malpractice case?

“Since 2010, defendants represented Lindenwood and its managing company, Delkap Management (“Delkap”) (collectively “respondents”), in a proceeding before the SDHR against
allegations by a disabled shareholder that respondents denied her request to keep a dog as a reasonable accommodation and retaliated against her by removing her parking privileges in violation of NY Executive Law§ 296 (Doc. 17). In September 2013, an administrative law judge for the SDHR issued a recommendation that respondents pay complainant $5,000 in compensatory damages for mental anguish and humiliation as a result of the discrimination, with 9% interest; $10,000 in punitive damages; and civil fines in the amount of $5,000, with 9% interest, to be paid to the State of New York (Doc.17). The Acting Commissioner of the SDHR adopted the recommendation in a final order dated December 24, 2013 (Doc. 17).

Respondents appealed the Acting Commissioner’s final order and, in the 11/30/16 order,the Appellate Division, Second Department modified the agency’s determination and remitted thematter to the SDHR for a new award as to compensatory and punitive damages, as well as the civilpenalty, each in an amount not to exceed $2,500 (Doc. 18) (see Delkap Management, Inc. v NewYork State Div. of Human Rights, 144AD3dat 1148-1149).

It is undisputed that defendants failed to serve the SDHR with the 11/30/16 order, with notice of entry (Doc. 15 iJ 6). Instead, in August 2018, the SDHR served Lindenwood with notice
of entry and moved for leave to appeal the Appellate Division’s decision, which motion wasgranted by the Court of Appeals (see Delkap Management, Inc. v New York State Div. of Human Rights, 32 NY3d 910 [2018]). By decision and order dated March 26, 2019, the Court of Appeals reinstated the SDHR’s original decision and order in its entirety, finding that the Appellate Division erred in setting aside a portion of the SDHR’ s determination (Doc. 19). ”

“Since Lindenwood’s legal malpractice claim relies predominantly on the speculative conclusion that “[h]ad the [d]efendants complied with CPLR 5513, the case could not have
continued to the Court of Appeals,” the allegations are insufficient to support a legal malpractice claim. Although this Court is persuaded that defendants’ delay in filing the notice of entry was a lapse in the exercise of professional diligence (see generally Lappin v Greenberg, 34 AD3d 277, 279-280 [1st Dept 2006]), it cannot be ascertained whether a more prompt filing of the notice of entry by defendants would have prevented the SDHR from appealing. Moreover, the Court of Appeals rendered its decision based on the same facts that would have been presented to the Court had the SDHR filed its appeal sooner. Thus, the damages awarded to the complainant, the civil penalty, and all associated costs incurred for defending the appeal would have been the same even had there been no delay in filing the notice of entry. Based on the foregoing, Lindenwood’s factual
allegations fail to support the element of proximate cause (see Levine v Lacher & Lovell-Taylor, 256 AD2d at 149-150; Gersh v Nixon Peabody LLP, 2017 NY Slip Op 30363[U], 2017 NY Misc LEXIS 682, * 18-19 [Sup Ct, NY County 2017]; Caso v Sklarin, 2016 NY Misc LEXIS 6863, * 12-13 [Sup Ct, NY County May 26, 2016, No. 159192/2015]).”

There are scholarly works (in the form of law review articles) which argue that the courts tilt towards attorneys in legal malpractice cases.  It is logical that such a prejudice might exist.  Legal malpractice (and ethical) rules are written by attorneys, apply to attorneys, are reviewed by attorneys and are acted upon by judge-attorneys.  Any survey of in-house disciplinary or self-disciplining organizations yields the conclusion that self-discipline is less rigorous than discipline by uninvolved outsiders.

So goes Onyenwe v Hamernick  2020 NY Slip Op 04314 [185 AD3d 1044]  July 29, 2020  Appellate Division, Second Department.  While the AD eventually set things right, look at the number of opportunities given the pro-se attorney, and even when Supreme Court sanctioned him, look how a second judge gave the pro-se attorney defendant another out.

“Ordered that the order dated November 28, 2018, is reversed, on the law and in the exercise of discretion, with costs, and the defendant’s motion, inter alia, pursuant to CPLR 5015 (a) (1) to vacate the order dated April 16, 2018, and thereupon to vacate the note of issue is denied.

In 2014, the plaintiff commenced this action against the defendant, inter alia, to recover damages for legal malpractice. Pursuant to a preliminary conference order dated July 6, 2015, the parties were to appear for depositions and to provide disclosure. By notice of motion dated December 11, 2015, the plaintiff moved, inter alia, to strike the defendant’s answer for his willful failure to appear for his deposition. In an order dated January 15, 2016, the Supreme Court resolved the plaintiff’s motion by directing the parties to appear for their depositions on certain dates and to respond to discovery demands. Thereafter, upon additional motions by the plaintiff, inter alia, to strike the defendant’s answer, the court issued two more orders directing, inter alia, the defendant to appear for his deposition. By notice of motion dated January 5, 2018, the plaintiff again moved, inter alia, to strike the defendant’s answer. In an order dated February 2, 2018, the court directed the defendant to appear for his deposition on or before March 9, 2018, and adjourned the plaintiff’s motion to April 16, 2018. The court stated that the issue of preclusion would be addressed on the adjourned date. In an order dated April 16, 2018, the court granted the plaintiff’s unopposed motion, inter alia, to strike the answer.

By order to show cause dated May 31, 2018, the defendant moved, inter alia, pursuant to CPLR 5015 (a) (1) to vacate the order dated April 16, 2018, and thereupon to vacate the note of issue. The plaintiff opposed the motion. In an order dated November 28, 2018, the Supreme Court granted the defendant’s motion, and the plaintiff appeals.

In order to vacate his default in opposing the plaintiff’s motion, inter alia, to strike the answer, the defendant was required to demonstrate a reasonable excuse for the default and a potentially meritorious opposition to the motion (see CPLR 5015 [a] [1]; 210 E. 60 St., LLC v Rahman, 178 AD3d 888, 889 [2019]; Mollica v Ruzza, 151 AD3d 714 [2017]; Remote Meter Tech. of NY, Inc. v Aris Realty Corp., 83 AD3d 1030, 1031 [2011]). Inasmuch as the defendant failed to demonstrate a reasonable excuse for his default, we need not consider whether he offered a potentially meritorious opposition to the motion (see Turko v Daffy’s, Inc., 111 AD3d 615, 617 [2013]).

Accordingly, the Supreme Court should have denied the defendant’s motion, inter alia, pursuant to CPLR 5015 (a) (1) to vacate the order dated April 16, 2018, and thereupon to vacate the note of issue. Chambers, J.P., Maltese, Christopher and Wooten, JJ., concur.”

Plaintiff sued and was successful in obtaining a judgment.  The judgment was uncollectible.  In Ofman v Tenenbaum Berger & Shivers LLP  2020 NY Slip Op 32828(U)  July 23, 2020
Supreme Court, Kings County  Docket Number: 524482/2019  Judge: Richard Velasquez,  Plaintiff alleged that had the attorney been quicker, the defendant would not have been able to leave the US and the judgment would have been collectible.  The Court thought not.

“In the present case, accepting the facts as alleged in the complaint as true, according plaintiff the benefit of every possible favorable inference, and determining only whether the facts as alleged fit within any cognizable legal theory the only element the plaintiff satisfies for legal malpractice is the existence of an attorney-client relationship.

Plaintiff has not alleged facts that satisfy any other element of a claim for legal malpractice. Most notably, the plaintiff was successful in the underlying action and cannot
allege that he was unsuccessful. He has not alleged facts showing breach of duty; he has not alleged facts showing ‘but for’ causation; and he has not alleged facts setting forth
actual or ascertainable damages. Therefore, the plaintiff has failed to state a cause of action for legal malpractice.

Accordingly, Defendants, motion to dismiss plaintiff’s complaint is hereby Granted, for the reasons stated above.”

Legal malpractice issues arise in all kinds of settings. in Wikked Entertainment, Inc. v Burbacki  2020 NY Slip Op 32375(U)  July 20, 2020 Supreme Court, New York County Docket Number: 652352/2018 Judge: Andrew Borrok the setting is a claimed hiring of a niece as an attorney to a talent management agency, and the claimed attempted take-over of the agency.  Maria Carey was the sole client, and that relationship ended badly.

“According to the Amended Complaint, in January 2016, Stella Stolper hired her niece, Zarina Burbacki, an attorney licensed to practice in New York, to work for Ms. Stolper’ s management and production company, Wikked Entertainment, Inc. (Wikked) as its in-house counsel and Chief of Staff (Am. Compl., iii! 2-8). Ms. Stolper also helped Ms. Burbacki’s husband, Yonatan Shimrony, get a job in the entertainment industry (id., iJ 10). However, within a few months after Ms. Burbacki began working for Ms. Stolper at Wikked, Ms. Burbacki and Mr. Shimrony created their own, competing companies called YoZa Consulting LLC (Y oZa) and 345 Consulting LLC (345 Consulting), for the purpose of poaching Wikked’s clients and diverting business opportunities for their own benefit (id., iJiJ 13-15). ”

“Ms. Stolper also details allegations concerning Ms. Burbacki’s attempts to wrest control of Ms. Stolper and Wikked’s finances from Ms. Stolper. In one example, she alleges that, acting as Ms. Stolper’s personal attorney, Ms. Burbacki advised Ms. Stolper to set up two trusts in California to safeguard her assets (id., i123). Ms. Burbacki then allegedly set up the trusts and named herself and Mr. Shimrony as the trustees in a scheme designed to give them complete control over Ms. Stolper’s assets (id.). Ms. Stolper asserts that Ms. Burbacki, who was not licensed to practice law in California and had no knowledge of California law, misrepresented the need for the trusts and the benefits of structuring them in such a way as to give Ms. Burbacki and Mr. Shimonry complete control (id.). In another example, Ms. Stolper alleges that Ms. Burbacki convinced Ms. Stolper to put her funds in an attorney escrow account, but after a few months, she stopped providing a formal accounting and withheld $125,000, which Ms. Stolper claims Ms. Burbacki kept for herself (id., iii! 31-37). ”

“Ms. Burbacki’s argument fails because although Ms. Stolper and Ms. Carey released each other and each other’s lawyers (NYSCEF Doc. No. 88, § 4 [emphasis added]), they did not release claims against their own lawyers. The plain meaning of the language of the Mutual Release is that there was no release as to any claims that each party might have against its own lawyers (Elias v Gettry Marcus CPA, P.C., 2018 WL 3117510 at *4 [SD NY, June 25, 2018, 17 Civ. 4066 (ER)] [“The most natural reading of this language is that the parties intended to release each other and those individuals acting as the counterparties’ agents, not that the parties intended to release claims against their own agents.”]). Put another way, Ms. Stolper released any and all claims against Ms. Carey and Ms. Carey’s lawyers, and Ms. Carey released any and all claims against Ms. Stolper and Ms. Stolper’s lawyers, but they did not release any claims that either of them may have as against their own lawyers. For the avoidance, to the extent that Ms. Burbecki argues that there is no carve-out of her from the release, it is of no moment because, for the reasons set forth above, Mr. Stolper’s release language does not cover her or any of her own employees in the first instance. In other words, the absence of a carve-out does not expand the language of the release itself. Accordingly, the Mutual Release is not a bar to Ms. Stolper’s claims in this action. ”

“Here, Ms. Stolper alleges that “[i]n the course of their employment as Ms. Stolper’s and Wikked’s attorneys, Burbacki consistently committed malpractice by either negligently and
improperly performing legal tasks or by negligently failing to perform necessary and required legal tasks” (Am. Compl, iJ 70). Specifically, Ms. Stolper alleges that (i) Ms. Burbacki
intentionally misrepresented her legal knowledge and experience (id., iJ 16), (ii) Ms. Burbacki represented that she was working on securing certain patents and trademarks that were necessary in connection with a skin care product line that Ms. Stolper planned to launch, but that she failed to take the necessary actions to obtain them and, as a result, the product line never launched (id., iii! 18-21), (iii) Ms. Burbacki served as Ms. Stolper’s personal lawyer but failed to provide herwith a written retainer letter as required under New York law (id., iJ 22), (iv) Ms. Burbacki misrepresented her knowledge and understanding of California law and lacked the legal acumen to perform the services that she was entrusted to perform, including advising Ms. Stolper on the benefits of setting up trusts in California and giving total control to Ms. Burbacki and Mr. Shimonry, and (v) Ms. Burbacki mismanaged the attorney escrow account by comingling and then converting Ms. Stolper’s funds (id., iii! 33-35). Taking these allegations as true and according them the benefit of every favorable inference, Ms. Stolper has sufficiently stated a cause of action for legal malpractice. Therefore, the motion to dismiss is denied as it relates to the fourth cause of action.”

CPLR 3211 dismissals are granted more frequently than might be expected,  Dedaj v Berisha  decided on July 15, 2020 Appellate Division, Second Department is almost an exception.  Two items are of interest.  First, the assignment of the legal malpractice claim is affirmed, almost without comment.  Second, the (a)(7) motion is denied almost mechanically.  This is not always the case in legal malpractice litigation.

“We agree with the Supreme Court’s determination denying the defendant’s motion to dismiss the complaint insofar as asserted against it to the extent that the motion was based upon CPLR 3211(a)(1). The documents proffered by the defendant did not utterly refute the plaintiffs’ allegations or conclusively establish that there was no attorney-client relationship between the [*2]defendant and the plaintiffs (see Anderson v Armentano, 139 AD3d at 771; Mawere v Landau, 130 AD3d 986, 990).

We also agree with the Supreme Court’s denial of the defendant’s motion to dismiss the complaint insofar as asserted against it to the extent that the motion was made under CPLR 3211(a)(7). Where, as here, evidentiary material is considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion has not been converted to one for summary judgment, the criterion is whether the plaintiff has a cause of action, not whether he or she has stated one, and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all, and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate (see Guggenheimer v Ginzburg, 43 NY2d 268, 275).

Here, the allegations in the complaint, if true, are sufficient for the plaintiffs to establish a cause of action to recover damages for legal malpractice (see Mawere v Landau, 130 AD3d at 990; see also Sitar v Sitar, 50 AD3d 667, 669-670). The defendant’s evidentiary submissions did not establish that a material fact alleged in the complaint is not a fact at all and that no significant dispute exists regarding it (see Lopez v Lozner & Mastropietro, P.C., 166 AD3d 871, 873; see also Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 AD3d at 589).

We also agree with the Supreme Court’s determination denying that branch of the defendant’s motion which was based upon CPLR 3211(a)(3) to dismiss the fourth cause of action insofar as asserted against the defendant for lack of standing (see General Obligations Law § 13-101; Greevy v Becker, Isserlis, Sullivan & Kurtz, 240 AD2d 539, 541). That cause of action, asserted by the plaintiff Prel Dedaj, as assignee of Arben Dedaj, alleges that the defendant engaged in legal malpractice with respect to Arben Dedaj.”

Almost unheard of, Plaintiff was granted summary judgment on liability in this legal malpractice case.

Reem Contr. v Altschul & Altschul  2020 NY Slip Op 32301(U)  July 13, 2020  Supreme Court, New York County  Docket Number: 104202/2011  Judge: Kelly A. O’Neill Levy is the one-in-a-million where Plaintiff obtains a summary judgment order in a legal malpractice setting.

“”A legal malpractice claim requires a showing that the attorney was negligent, that her negligence proximately caused the loss in question, and that the pla,intiffs sustained actual
damages … To prevail on a summary judgment motion, the attorney must show that she exercised an “ordinary (degree of) skill and knowledge.” Mah v. 40-44 West J 20th St. Associates, LLC, 65 Misc3d l2l5(A) (1st Dep’t 2019) (citing Bishop v. Maurer, 33 AD3d 497, 498 [!st Dept. 2006], affd 9 NY3d 910 [2007]; Bakcheva v. Law Offs. q{Stein & Assoc, 169 AD3d 624, 625 [2d Dept. 20 J 9]). “While the issue of whether certain conduct constitutes legal malpractice is generally a factual detennination to be made by the jury. a plaintiff will be entitled to summary judgment in a case where there is no conflict at all in the evidence. the defendant’s conduct fell below any permissible standard of due care. and the plaintiffs conduct was not really involved.” Selletli v Liotti. 22 A.D.3d 739 (2d Dep’t 2005).

“Expert testimony is normally needed to establish that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession.·· Northrop v. Thorsen, 46 A.D.3d 780 (2d Dep’l 2011). To this end. Plaintiffs have submitted a signed expert report from Bennett J. Wassennan, Esq. which concludes in detail that Defendants were negligent and that there is a direct causal link between Defendants’ negligence and actual damages that Plaintiff incurred”

” This case presents an extraordinary situation where this Court can appreciate how Plaintiffs’ expert came to the conclusion that Defendants’ “failure to retain a liability expert in a
timely fashion, failure to secure a proper expert report in a timely fashion, and failure to properly oppose the underlying plaintiffs’ motion for summary judgment” was “a substantial causative factor” in a determination ofliability that was potentially avoidable where, as here, Defendants’ failure to retain a liability expert in a timely fashion, failure to secure an expert report in a timely fashion, and failure to oppose plaintiffs’ motion for summary judgment are a substantial causative factor in determining liability.

Plaintiffs’ motion for summary judgment as to liability is granted. ”