We get little direct description of the legal malpractice claim, but a guess from the decision is that Plaintiff argued that she did not get the settlement bargain that she expected, and that the attorney committed legal malpractice. The decision in Christian v Paul B. Weitz & Assoc., P.C. 2025 NY Slip Op 51001(U) Decided on June 23, 2025
Appellate Term, First Department is short.

“Order (Jessica I. Bourbon, J.), entered January 17, 2025, affirmed, with $10 costs.

Civil Court properly dismissed plaintiff’s action for legal malpractice based upon documentary evidence that conclusively established a defense to the action (see CPLR 3211 [a] [1]; Leon v Martinez, 84 NY2d 83 [1994]). Defendant submitted, among other things, email correspondence between the parties, the March 15, 2023 letter accompanying the check in settlement of plaintiff’s underlying personal injury action and plaintiff’s executed receipt of “client share” of the settlement of that underlying action. These documents flatly contradict the facts on which the claim of malpractice rests by showing that plaintiff expressly authorized defendant to settle her personal injury action for $35,000, inclusive of a one-third legal fee, with the reduced Medicare lien deducted from defendant’s fees (see Laruccia v Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn, 295 AD2d 321 [2002], lv denied 98 NY2d 753 [2002]).”

In Caminero v Michael Flynn, Esq., PLLC 2025 NY Slip Op 03701 Decided on June 18, 2025 Appellate Division, Second Department it is pled that the attorney allowed the case to be dismissed, with prejudice for failure to prosecute an injury claim against the MTA by one of its police officers. Attorney defends by saying that Plaintiff could not have won the case anyway. The defense is unsuccessful, for now.

“The plaintiff commenced this action against the defendants, inter alia, to recover damages for legal malpractice. The plaintiff alleged that she had retained the defendants to represent her in an action that she commenced pursuant to the Federal Employers’ Liability Act (45 USC § 51 et seq.) (hereinafter the FELA action). The plaintiff had asserted the FELA action against the Metropolitan Transportation Authority (hereinafter the MTA) to recover damages for personal injuries she allegedly sustained on two different dates while she was working as a police officer employed by the MTA. The plaintiff further alleged that she would have prevailed in the FELA action, which was dismissed, with prejudice, for failure to prosecute, but for the defendants’ negligent failure to prosecute that action. Thereafter, the defendants moved for summary judgment dismissing the cause of action alleging legal malpractice. In an order entered June 22, 2023, the Supreme Court denied the defendants’ motion. The defendants appeal.”

“Contrary to the defendants’ contention, they failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging legal malpractice based upon the doctrine of collateral estoppel. “The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action 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 [emphasis omitted]; see Matter of Maione v Zucker, 210 AD3d 776, 777). “‘This doctrine applies only if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the . . . party to be bound had a full and fair opportunity to litigate the issue in the earlier action'” (Matter of Maione v Zucker, 210 AD3d at 777 [alteration and internal quotation marks omitted], quoting City of New York v Welsbach Elec. Corp., 9 NY3d 124, 128).

Here, the defendants asserted that in light of the denial of an application by the plaintiff for accidental disability retirement benefits and the dismissal of the plaintiff’s proceeding pursuant to CPLR article 78 to review the denial of that application, the plaintiff was collaterally estopped from claiming that she suffered a work-related injury. Therefore, the defendants argued that the plaintiff could not establish that she would have prevailed in the FELA action but for the defendants’ alleged negligent failure to prosecute that action. Contrary to the defendants’ contention, however, the defendants failed to demonstrate an identity of issues between the FELA action and the determination of either the plaintiff’s application for accidental disability retirement benefits or the CPLR article 78 proceeding (see Weslowski v Zugibe, 167 AD3d 972, 975). Whereas the FELA action involved the issue of whether the MTA’s alleged negligence played any part in producing the injuries for which the plaintiff sought damages (see Rogers v Missouri Pacific R. Co., 352 US 500, 506; Grasso v Long Is. R.R., 306 AD2d 378, 379), that issue was not litigated and necessarily decided against the plaintiff either in the context of her application for accidental disability retirement benefits or in the CPLR article 78 proceeding (see Kenny v New York City Tr. Auth., 275 AD2d 639, 640). Thus, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging legal malpractice based upon the doctrine of collateral estoppel.

The defendants also failed to establish, prima facie, that the MTA neither created nor had actual or constructive notice of the alleged dangerous conditions at issue in the FELA action (see Lauzon v Stop & Shop Supermarket, 188 AD3d 856, 857; Ariza v Number One Star Mgt. Corp., 170 AD3d 639, 639). Thus, the defendants failed to demonstrate, prima facie, that the plaintiff would not have prevailed in the FELA action but for their alleged failure to prosecute that action (see Detoni v McMinkens, 147 AD3d 1018, 1020).”

It’s still an open question. In Prospect Corp. v Morgan Lewis & Bockius LLP 2025 NY Slip Op 03659
Decided on June 17, 2025 the Appellate Division, First Department shied away from determining whether there is a NY privilege regarding confidential mediation documents.

“In this legal malpractice action, plaintiff Prospect Capital Corporation (Prospect) alleges that defendants’ negligence in negotiating a debt subordination agreement on its behalf with nonparty Silicon Valley Bank (SVB) deprived it of a cause of action under a “turnover provision” and that defendants’ subsequent incorrect advice concerning Prospect’s rights created further harm. Prospect previously sued SVB in federal court and settled the action after participating in a confidential mediation proceeding before a magistrate judge. Defendants sought discovery of the settlement agreement and all statements submitted by Prospect to the magistrate judge who mediated the SVB Action, including all exhibits thereto. Prospect has produced the settlement agreement as well as all documents related to the federal action, other than its mediation statement.

While discovery under CPLR 3101(a) is broad, the court improvidently determined that defendants established a basis for compelling Prospect to produce the confidential mediation statement (see Matter of New York County Data Entry Worker Prod. Liability Litig., 222 AD2d 381, 382 [1st Dept 1995] [“settlement material that defendants . . . seek, in derogation of the confidentiality agreement that attended it, is not material and necessary to their defense of the action”]; compare Am Re-Ins. Co. v United States Fid. & Guar. Co., 19 AD3d 103, 104 [1st Dept 2005]). How Prospect planned to prove causation and damages on its separate claim in the underlying SVB action is not material and relevant to the issues here, which involve whether defendants’ alleged malpractice leading to the loss of a cause of action under the turnover provision of the subordination agreement caused Prospect damages (see Campagnola v Mulholland, Minion & Roe, 76 NY2d 38, 42 [1990]). Defendants’ hope that the mediation statement contains admissions by Prospect that may directly undermine its causation argument in this case, is too speculative a basis to compel discovery (see Data Entry, 222 AD2d at 382).

Nor have defendants shown that the mediation statement is relevant to their setoff defense as there appears to be no dispute that Prospect provided the settlement agreement, which reveals the existence of a settlement of the underlying action and the settlement amount (see e.g General Elec. Co. v APR Energy PLC, 2020 WL 2061423, 2020 US Dist LEXIS 75658 [SD NY 2020]). To the extent defendants contend that Prospect, against its own interests, resolved the underlying action for a lower settlement amount, this argument is speculative and does not justify compelling production of the confidential mediation [*2]statement (see Manley v New York City Hous. Auth., 190 AD2d 600, 600-601 [1st Dept 1993]).

In light of that determination, we have no basis to determine whether a qualified privilege should be recognized in New York for discovery of confidential mediation documents (see Hauzinger v Hauzinger, 10 NY3d 923, 924 [2008]).”

Alterman & Boop LLP v Emamian 2025 NY Slip Op 32118(U) June 13, 2025 Supreme Court, New York County Docket Number: Index No. 650345/2024 Judge: Nicholas W. Moyne presents an unusual but not unprecedented situation where withdrawing attorneys obtained a decision on their fees. In this employment discrimination case setting, attorney fees were due from the employer and the law firms now seek their share. Plaintiff attempts to allege legal malpractice and other equitable defenses.

“This action arises from the plaintiffs’ representation of Effat Emamian (“Emamian”) in her Federal District Court employment discrimination action against her former employer, Rockefeller University (the “Rockefeller action”). Plaintiffs were Emamian’s second set of counsel in the Rockefeller action, and they withdrew as counsel on April 21, 2016, prior to trial. The Rockefeller action eventually went to trial with successor counsel, Emamian was awarded $250,000 in back pay and $2,000,000 in pain and suffering, although the latter award was remitted by the Court to $200,000. Additionally, the District Court awarded Emamian attorneys’ fees, which were paid by
the defendant in the Rockefeller action. Plaintiffs in the instant action seek to obtain that portion of the attorneys’ fees awarded in the Rockefeller action which were allocated to them.

Emamian opposes the motion. Her counterclaims allege legal malpractice, breach of fiduciary duty, and breach of contract. Essentially, the defendant’s counterclaims and majority of her affirmative defenses revolve around her claims that the plaintiffs withdrew from representation in violation of the retainer agreement, would not deduct the expenses paid by Emamian from the attorneys’ fees they sought, and failed to turn over the entire case file to successor counsel.

In the Rockefeller action, the District Court granted, in part, Emamian’s post-trial motion for pre and post judgment interest, attorneys’ fees and costs to be paid by the defendant in that action. The total attorneys’ fee award was $960,570. Of this, $150,700 was attributable to the Alterman Firm, and $48,800 to Dowd. The decision also awarded costs, of which $49,969.83 were attributed to Alterman and Dowd, and $18,610 were attributed to Emamian herself. This decision took into consideration the fact that Alterman and Dowd withdrew from representation before trial took place, reducing the Alterman Firm’s hours by 60% and the Dowd Firm’s hours by 75%. In particular, District Court Judge Paul G. Gardephe adopted the recommendation of the Magistrate Judge, who opined that “with respect to the Dowd Firm, an even greater reduction of its hours than of the Alterman Firm’s hours is required, because Dowd “was not an employment law expert, but was brought in to be a part of the trial and offer his experience in trying cases. Because Dowd withdrew before the trial took place, he never performed the task he was brought in to do” (Exh. M, Memorandum Opinion & Order, p. 43, NYSCEF Doc. No. 24).”

‘The defendant did not assert her counterclaims until after the applicable statutes of limitations had run. The defendant’s counterclaims accrued when the plaintiffs withdrew as counsel in the Rockefeller action on or about April 21, 2016. The defendant did not file her answer containing the counterclaims until April 10, 2024, just
shy of eight years after her claims accrued. The longest statute of limitations which could possibly apply to Emamian’s counterclaims is the six-year statute of limitations for breach of contract (see CPLR § 213[1][six year statute of limitations for which no limitation is specifically prescribed by law], CPLR § 213[2] [six year statute of limitations for contractual obligation or liability], CPLR § 214[6] [three year statute of limitations for malpractice]). Accordingly, the counter claims were brought after the applicable statute of limitations had run. However, to the extent that any of the counterclaims are viable, they may be available to offset any recovery by the plaintiffs. “Under CPLR 203(d), claims and defenses that arise out of the same transaction as a claim asserted in the complaint are not barred by the statute of limitations, even though an independent action by the defendant might have been time-barred at the time the action was commenced. This provision allows a defendant to assert an otherwise untimely claim which arose out of the same transactions alleged in the complaint, but only as a shield
for recoupment purposes, and does not permit the defendant to obtain affirmative relief” (Balanoff v Doscher, 140 AD3d 995, 996 [2d Dept 2016]). “”

“Defendant contends that the plaintiffs committed legal malpractice by withdrawing from her representation despite a clause in the retainer agreement which stated that the law firms “will not withdraw from representing her under any circumstances, except non-payment of the fees described in paragraph 2” (Retainer Agreement ¶ 6, NYSCEF Doc. No. 32). “[A]s a general rule equity will not enforce specific performance of contracts for personal services” (Am. Broadcasting Companies, Inc. v Wolf, 76 AD2d 162, 174 [1st Dept 1980], affd, 52 NY2d 394 [1981]; see also Matter of Baby Boy C., 84 NY2d 91, 101 [1994] [“courts will rarely if ever grant specific
performance of a contract for personal services”]). Furthermore, as set forth in the Declaration of Daniel L. Altman supporting his withdrawal as counsel in Rockefeller action, which was made when the case was trial ready but had not yet been scheduled for trial, his medical conditions at the time made him unfit to conduct a trial. These
conditions included severe pain as a result of a recent surgery, the need for future surgery, limited mobility, and impacted mental faculties as a result of taking a narcotic for his pain (see Declaration of Daniel L. Altman, NYSCEF Doc. No. 18). In addition to Altman’s own assessment as to his fitness to conduct a trial, Altman also had a letter from his Orthopedic Surgeon indicating that Altman would not be able to attend to his court responsibilities (Exh, H, Gonzalez Della Valle, MD letter, NYSCEF Doc. No. 19) Pursuant to the rules of professional conduct, 22 NYCRR § 1200.0 Rule 1.16(b)(2), “a lawyer shall withdraw from the representation of a client when … the lawyer’s physical or mental condition materially impairs the lawyer’s ability to represent the client” (emphasis added). The fact that, after having withdrawn in the Rockefeller action, Mr. Altman continued to represent, or be listed as an attorney on other cases that were at different, less taxing, stages litigation than trial does not mean that he was competent to try the Rockefeller action at that time. Accordingly, Altman’s withdrawal from representation was in accordance with the rules of professional conduct, and did not constitute malpractice.”

“

Meirowitz v Greenberg 2025 NY Slip Op 32124(U) June 13, 2025 Supreme Court, New York County Docket Number: Index No. 659363/2024 Judge: Paul A. Goetz demonstrates the dangers of charging liens, litigation over attorney fees and a subsequent legal malpractice case.

“In this legal malpractice action defendants, Segal & Greenberg LLP, Margery Greenberg,
and Sara Hiltzik1 (collectively “S&G Defendants”) move (MS #2), and defendant Dorf Nelson &
Zauderer, separately moves (MS #3) to dismiss the complaint as against them.
Plaintiff alleges 302 causes of action against defendants many of which are not
cognizable causes of action in New York, including the following:

SIXTH CAUSE OF ACTION – Failure to Inform the Court of Critical Information

FIRST CAUSE OF ACTION – Malfeasance

SECOND CAUSE OF ACTION – Nonfeasance

THIRD CAUSE OF ACTION – Misfeasance

FOURTH CAUSE OF ACTION – Lack of Transparency

FIFTH CAUSE OF ACTION – Failure to Inform the Court of Due Process Violations

7. SEVENTH CAUSE OF ACTION – Failure to Provide Discovery
8. EIGHTH CAUSE OF ACTION – Failure to Address Frivolous and Procedurally
   Defective Actions
9. NINTH CAUSE OF ACTION – Failure to Inform the Court of Unauthorized Actions of
   the AFC
10. TENTH CAUSE OF ACTION – Failure to Inform the Plaintiff and the Court of Critical
    Findings
11. THIRTEENTH CAUSE OF ACTION – Failure to Address Ex Parte Communication and
    Challenge Improper Compensation Order
12. FIFTEENTH CAUSE OF ACTION – Failure to Inform the Court of My Son’s Suicide
    Attempts and the Impact of the Custody Schedule Change
13. SIXTEENTH CAUSE OF ACTION – Refusal to Follow Client Directives and Failure to
    Inform the Court
14. SEVENTHEENTH [sic.] CAUSE OF ACTION – Failure to Inform Plaintiff of Legal
    Rights and Misrepresentation Regarding Marital Assets
15. EIGHTEENTH CAUSE OF ACTION: Pattern of Failure to Preserve the Record
16. NINETEENTH CASUE [sic.] OF ACTION: Failure to Provide the Complete File, or
    partial file, in a Timely Fashion
17. TWENTYEENTH [sic.] CAUSE OF ACTION: Breach of Attorney-Client Privilege and
    Professional Conduct
18. TWENTY-THIRD CAUSE OF ACTION: Failed to Inform me of both a 1028 and 1028
    Hearing
19. TWENTY FIFTH CASUE [sic.] OF ACTION: Failure to Exercise Reasonable Care in
    Depositions
20. TWENTY SEVENTH CASUE [sic.] OF ACTION: Ineffective Representation
21. TWENTY-EIGHT CASUE [sic.] OF ACTION: Lack of Advocacy
22. TWENTY NINTH CASUE [sic.] OF ACTION: Support of Misleading Article and Quid
    Pro Quo Relationships
23. Cause of Action Number Thirty-Two: Damages and the Broader Scope and Implications
    of Defendant’s Action

It appears that these causes of action are intended to be different allegations of legal
malpractice and will be addressed as such. To succeed on a claim of legal malpractice “plaintiff
must show that: (1) the attorney was negligent; (2) the attorney’s negligence was a proximate
cause of plaintiff’s losses; and (3) plaintiff suffered actual damages” (Springs v L&D Law P.C.,
234 AD3d 422, 423 [1st Dept 2025]).”

“As for the allegations against the S&G Defendants, a claim for legal malpractice is barred
by an “adverse determination in [an allegedly negligent attorney’s] prior action to recover fees
for the rendering of professional services … with regard to the same services” (Kinberg v Garr,
28 AD3d 245, 246 [1st Dept 2006]; John Grace & Co., Inc. v Tunstead, Schechter & Torre, 186
AD2d 15, 20 [1st Dept 1992] “[S]ince the fee claim and the legal malpractice claim arose from
the same transaction, the decision to award fees necessarily included the finding of no
malpractice”]).
Here, by Decision and Order dated March 16, 2023, in the underlying action, the court
granted S&G Defendants’ motion to withdraw, and awarded S&G Defendants a charging lien at
an amount to be determined later (NYSCEF Doc No 24). The hearing was held on April 28,
2023 and plaintiff agreed to a Charging Lien in the amount of $124,100.86 (NYSCEF Doc No 26
at p 5). “Accordingly, plaintiff[‘s] legal malpractice claim[s] based upon the same services at
issue before the fee claim court [are] barred by collateral estoppel and res judicata” (John Grace,
186 AD2d at 20).”

As one starts to read the decision in Follman v Gruber 2025 NY Slip Op 32078(U) June 6, 2025 Supreme Court, Kings County Docket Number: Index No. 508865/2023 Judge: Richard Velasquez one gets the impression that the defendant attorneys have the upper hand. Read on.

“Upon the foregoing papers, in this action by plaintiff Abron N. Follman, as trustee and beneficiary of the Lazar Follman 2011 Family Trust and the Esther Follman 2011 Family Trust (plaintiff), defendant Meltzer, Lippe, Goldstein & Breitstone, LLP (Meltzer Lippe) moves, under motion sequence number one, for an order: ( 1) pursuant to CPLR 3212, granting it summary judgment dismissing plaintiffs complaint in its entirety with prejudice; (2) pursuant to 22 NYCRR 13 0-1.1, awarding it sanctions in the fonn of a money judgment against plaintiff and his counsel Balisok & Kaufman, PLLC, jointly and severally, in an amount equal in value to the time spent by its attorneys addressing the allegedly facially and abjectly frivolous claims asserted by plaintiff against it herein and addressing plaintiffs failure to withdraw those claims when demanded to avoid its incurring of those expenses (with the amount of such fees to be fixed at inquest upon notice to plaintiff and his counsel); and (3) granting such other and further relief as to the court seems just and proper in the circumstances.”

“Plaintiff moves, by order to show cause, under motion sequence number eight, for an order: (1) extending his time to oppose Meltzer Lippe’s motion for summary judgment until all court-ordered discovery has been produced; (2) precluding Meltzer Lippe from testifying or offering any evidence at trial; (3) dismissing with prejudice Meltzer Lippe’s summary judgment motion; (4) striking the answer of Meltzer Lippe, pursuant to Judiciary Law§ 753 and CPLR 3126; (5) granting sanctions for defendants’ frivolous misconduct in this matter pursuant to 22 NYCRR 130-1.1; (6) holding Meltzer Lippe in contempt of a court order to produce discovery pursuant to Judiciary Law § 753; (7) in the alternative, in the event the court declines to strike Meltzer Lippe’s answer, entering into a preliminary conference order establishing a schedule of compliance for Meltzer Lippe with the Notice for Discovery and Inspection of Documents served upon it by him in this action and setting depositions; (8) entering into a preliminary conference order establishing a schedule of compliance for Avraham Meir Follman (Avraham) and Eugene Gruber (Gruber) with the Notice for Discovery and Inspection of Documents served upon them by him in this action and setting depositions; and (9) granting such other and further relief as this court may deem just.”

“Meltzer Lippe is the law firm that prepared the Lazar 2011 Trust, the Esther 2011 Trust, the Lazar 2017 Trust, and the Esther 2017 Trust. Plaintiff alleges that Meltzer Lippe orchestrated the appointment of Gruber as a trustee of the Lazar 2011 Trust and the Esther 2011 Trust, and allegedly coordinated and benefited from the unlawful misappropriation of these trust assets.”

“Plaintiffs sixth cause of action alleges that Meltzer Lippe drafted the Lazar 2011 Trust and the Esther 2011 Trust and thereby had reason to know that Gruber and A vraham were in breach of their fiduciary duty in misappropriating, diverting, and/or converting real property, personal property, and funds that belonged to the Lazar 2011 Trust and the Esther 2011 Trust. It further alleges that Meltzer Lippe knowingly and intentionally aided and abetted Gruber and Avraham commit self-dealing, illegal misappropriation, diversion, and/or conversion of real property, personal property, _and funds that belonged to the Lazar 2011 Trust and the Esther 2011 Trust. Plaintifr s seventh cause of action alleges a claim of attorney malpractice as against Meltzer Lippe. It asserts that Meltzer Lippe had an attorneyclient relationship with the Lazar 2011 Trust and the Esther 2011 Trust and with plaintiff as one of the four trustees and beneficiaries of both trusts, and that Meltzer Lippe failed to , exercise the degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community. It alleges that Meltzer Lippe knowingly and intentionally aided and abetted Gruber and A vraham with committing the self-dealing, illegal misappropriation, diversion, and/or conversion of real property, personal property, and funds that belong to the Lazar 2011 Trust and the Esther 2011 Trust. It further alleges that the Lazar 2011 Trust and the Esther 2011 Trust were damaged in an amount not less .than the value of the property Gruber and Avraham misappropriated, diverted, and/or converted with Meltzer Lippe’s assistance, and seeks damages in the amount of not less than $200,000,000 dollars, and punitive damages of not less than three times compensatory ‘ damages with the exact amount to be determined at trial. On April 24, 2023, Meltzer Lippe filed its answer (NYSCEF Doc No. 5). On May 1, 2023, Meltzer Lippe filed its motion, under motion sequence number one, for summary judgment and sanctions (NYSCEF Doc No. 6).”

“By a decision and order dated July 3, 2024 (NYSCEF Doc No. 179), this court ruled that Meltzer Lippe was required to produce the information requested in request numbers 1-12, 6-19, 23-25, 33, 35, 38-45, 47-49, 56-64, 66, 67-73, 80, and 106 contained in NYSCEF Doc No. 71 within 30 days from the date of this order (i.e., by August 3, 2024), as previously set forth in Justice Ruchelsman’s November 20, 2023 order. The court specifically listed each of these requests. The court further ordered that plaintiff shall file opposition to the summary judgment motion on or before August 27, 2024, and Meltzer Lippe shall file its reply on or before September 10, 2024, and, in the event Meltzer Lippe fails to provide all discovery in this order, Meltzer Lippe shall automatically be precluded from offering any evidence or testimony at trial. ,”

“With respect to plaintiffs claim for legal malpractice, Meltzer Lippe made numerous representations to plaintiff that the decanting from the 2011 Trusts into the 2017 Trusts did not contradict Lazar’s express desire to leave his children equal shares of the -. property owned by the 2011 Trusts. Due to the lack of access to the 2017 Trusts documents, plaintiff was totally reliant on assurances made by Meltzer Lippe to him and Lazar that the 2017 Trusts and the sale of the properties would allow for equal inheritances. Meltzer Lippe failed to demonstrate that plaintiff knew or should have known that Meltzer Lippe had stopped representing him in the matter more than three years before this action was commenced. Meltzer Lippe’s ongoing representation of Avraham, as trustee of the 2011 Trusts in 2022, also results from Meltzer Lippe’s refusal to disclose the specific legal matter from which the legal malpractice arose. In any event, plaintiff has adequately plead facts which, if proven, would establish the existence of an equitable estoppel (see Doe v North Shore Univ. Hosp., 28 AD3d 603, 604 [2d Dept 2006]). The decanting was expressly designed in a manner to avoid plaintiff and the other siblings (other than Avraham) from being aware that the decanting was taking place. Consequently, plaintiffs legal malpractice claim against Meltzer Lippe is not time-barred. As to plaintiffs motion, under motion sequence number eight, as set forth in the court’s July 3, 2024 decision and order, based upon Meltzer Lippe’s failure to comply with all of the discovery requests, it shall automatically be precluded from offering any evidence or testimony at trial (see Biggio v Biggio, 110 AD3d 654, 655 [2d Dept 2013], lv denied 22 NY3d 860 [2014]). “‘To prevail on a motion to hold a party in civil contempt pursuant to Judiciary Law § 753 (A) (3), the movant is required to prove by clear and convincing evidence that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, that the order was disobeyed and the party disobeying the order had knowledge of its terms, and that the movant was prejudiced by the offending. conduct'” (Botros v Botros, 233 AD3d 1051, 1053 [2dDept2024], quoting Perrone v Perrone, 229 AD3d 816, 817 [2d Dept 2024]; see also El-Dehdan v El-Dehdan, 26 NY3d 19, 29 [2015]). Plaintiff has proven these elements, and shown that Meltzer Lippe should be held in civil contempt. No further sanctions are warranted.”

“Accordingly, Meltzer Lippe’s motion, under motion sequence number one, for summary judgment dismissing plaintiffs complaint as against it, is denied. Plaintiffs motion, under motion sequence number eight, is granted to the extent that Meltzer Lippe is held in civil contempt and is hereby precluded from offering any evidence or testimony at trial.”

Robbins v O’Hara 2025 NY Slip Op 32005(U) June 5, 2025 Supreme Court, New York County Docket Number: Index No. 152842/2022 Judge: David B. Cohen presents the attorney judgment defense in a setting where the Court finds that there is no unsettled or misunderstood law.

“In his complaint, plaintiff alleges that he retained defendants in 2018 to represent him in a
divorce proceeding against Madero1 (NYSCEF 1). In February 2020 plaintiff and Madero
signed a Stipulation of Settlement (Settlement Agreement), which, among other things, required
plaintiff to obtain life insurance naming Madero as the beneficiary to secure his payment
obligations under the agreement (id.). Following the onset of the COVID-19 pandemic and its
alleged impact on plaintiffs’ finances, plaintiff contends that defendants advised him that the pandemic provided grounds to “vitiate” the entire Stipulation, including the life insurance
requirement (id.).
In his affirmation, plaintiff claims this advice was contrary to well-established New York
precedent and was based on a “phantom” legal research project that was fabricated to generate
more than $40,000 in additional legal fees (NYSCEF 51). Relying on this erroneous advice,
plaintiff did not obtain the required life insurance (id.).
On August 6, 2020, Madero submitted an order to show cause seeking to compel plaintiff
to obtain the agreed-upon life insurance, and also requested attorneys’ fees (NYSCEF 39). In
response, on October 28, 2020, defendants filed a cross-motion on plaintiff’s behalf seeking
relief from certain financial obligations under the Settlement Agreement, including the life
insurance requirement, the distributive award, and spousal maintenance, and acknowledged
during oral argument that defendants were asking the Court to make new law (NYSCEF 20).
On March 30, 2021, the Court issued an order granting Madero’s application and denying plaintiff’s cross-motion (NYSCEF 22). The court also directed plaintiff to pay Madero’s counsel
fees in accordance with the Settlement Agreement (id.).”

““Pursuant to the professional judgment rule, an attorney’s ‘selection of one among several
reasonable courses of action does not constitute malpractice’ (Springs v L&D Law P.C., 234
AD3d 422, 424 [1st Dept 2025] quoting Rosner v. Paley, 65 NY2d 736 [1985]). However, an
attorney may be held liable for malpractice when they pursue an untenable legal strategy and fail
to advise the client of the adverse consequences, especially where those consequences were
foreseeable and avoidable (see Tenesaca Delgado v. Bretz & Coven, LLP, 106 AD3d 486, 488–
89 [1st Dept 2013] [legal malpractice claim sufficiently stated where attorneys advised plaintiff
to seek relief barred by law, failed to warn of likely deportation, and thereby caused her
removal]; see also Stevens v Wheeler, 216 AD3d 537, 538 [1st Dept 2023] [holding malpractice
claim sufficiently stated where attorneys’ probate advice exposed estate to greater elective share
under Rhode Island law]).
Here, defendants argue that plaintiff’s allegations are conclusory and fail to state a claim.
While the complaint uses terms like “negligent” and “reckless,” plaintiff alleges specific facts to
support these assertions, namely, that defendants advised him to repudiate a fully executed
negotiated Settlement Agreement, based on speculative legal grounds purportedly justified by the
COVID-19 pandemic. Plaintiff further alleges that this advice was unreasonable, contrary to
established law, and proximately caused him to incur damages, specifically his own unnecessary
legal fees and Madero’s attorneys’ fees pursuant to the Settlement Agreement’s fee-shifting provision.

Defendants also contend that plaintiff cannot establish causation because he did not and
could not prevail on the cross-motion seeking to set aside the Settlement Agreement. The
alleged malpractice is not that defendants failed to succeed on the cross-motion, but that they
advised plaintiff to pursue a meritless strategy that was contrary to controlling precedent and
predictably resulted in financial harm. “Causation” in the malpractice context does not always
require that a client would have prevailed on a meritless motion, but rather that the attorney’s
deficient advice proximately caused the client to incur avoidable damages (Boye v Rubin &
Bailin, LLP, 152 AD3d 1 [1st Dept 2017] [“plaintiff must show that he or she . . . would not have
incurred any damages, but for the lawyer’s negligence”(quoting Rudolf, 8 NY3d at 442)]).”

“Lastly, defendants’ argument that an attorney’s judgment call, particularly one involving
COVID-19 and its impact on settlement agreements, constitutes judgmental immunity is
misplaced. They rely on Lloyd’s Syndicate 2987 v Furman Kornfeld & Brennan, LLP, 182
A.D.3d 487 (1st Dept 2020), where the court applied judgmental immunity because the
attorney’s advice involved unsettled insurance law and was supported by two reasonable,
independent legal grounds. The plaintiff failed to allege that either was incorrect. Notably,
Lloyd’s was decided before the COVID-19 pandemic and did not involve pandemic-related legal
advice. Here, the alleged malpractice does not involve unsettled law or ambiguous contract
terms. It concerns specific advice to seek settlement modification based on speculative
assumptions about COVID-19. Judgmental immunity does not apply where the advice lacks a
reasonable basis.
At the motion to dismiss stage, pursuant to CPLR 3211(a)(7), these allegations
sufficiently state that defendants “failed to exercise the ordinary reasonable skill and knowledge
commonly possessed by a member of the legal profession and that their failure caused plaintiff to
suffer actual and ascertainable damages” (Nath v Chemtob Moss Forman & Beyda, LLP, 231 AD3d 546 [1st Dept 2024]). Accordingly, defendants’ motion to dismiss pursuant to CPLR 3211(a)(7) is denied.”

North Flats LLC v Belkin Burden Goldman, LLP 2025 NY Slip Op 32003(U) June 4, 2025 Supreme Court, New York County Docket Number: Index No.150420/2022 Judge: Richard G. Latin is the courtroom equivalent of a Broadway revival where the script was written by the AD and played out on a Supreme Court stage.

“Plaintiff, The North Flats LLC, was the owner, landlord and developer of a property that was formally a church, located at 163 North Sixth Street, Brooklyn, New York (the building). Defendant, law firm, Belkin Burden Goldman, LLP, represented plaintiff in connection with the coverage of plaintiff’s building as an interim multiple dwelling (IMD),1 pursuant to Multiple Dwelling Law (MDL) § 281(6).2 Plaintiff commenced this legal malpractice action against defendant, seeking to recover $3,000,000.00 in damages for defendant’s alleged negligence during its representation of plaintiff in connection with the coverage of plaintiff’s building as an IMD. Specifically, plaintiff alleges defendant deviated from the accepted standard of care by relying on plaintiff’s architect’s sworn certification of compliance with the fire and safety standards of MDL § 277 (Article 7-B [Art 7B]) with the Loft Board, and in so doing, failed to apply for an extension of the legalization deadlines associated with Art 7-B compliance, thereby prohibiting plaintiff from legally collecting rent from its tenants pursuant to MDL §§ 284 and 285(1),3 pending its receipt of a final residential COO (NYSCEF No. 89, [Complaint]). In response, defendant filed its verified answer with four counterclaims, seeking legal fees and sanctions, including, a money judgment in the amount of $83,209.33 for unpaid legal services, plus interest (NYSCEF No. 90, [Answer]). Defendant then brought a pre-discovery motion for summary judgment (motion sequence 001 [MS1]),4 in which it argued plaintiff’s complaint should be dismissed. This court denied the motion by the Decision and Order dated, August 23, 2022, as premature. However, as the motion was also denied without prejudice, defendant was granted leave to, “refile upon the completion of discovery and with an explanation as to whether defendant could have made an application to withdraw plaintiff’s architect’s certified opinion on Article 7B compliance and then seek an extension if [defendant] knew, or should have known, that there were legitimate reasons to doubt actual compliance” (North Flats LLC v Belkin Burden Goldman, LLP, 2022 N.Y. Misc. LEXIS 37469 *1 [Sup Ct, NY County Aug. 23, 2022, No. 150420/2022] [NYSCEF No. 92]). The First Department affirmed that decision on appeal, holding, as relevant here, that defendant’s failure “to submit an expert opinion demonstrating that defendant did not perform below the ordinary reasonable skill and care possessed by an average member of the legal community” was fatal to defendant’s motion (North Flatts LLC v Belkin Burden Goldman, LLP, 217 AD3d 427, 428 [1st Dept 2023] [Remittal Order]). Now that discovery is complete, defendant renews its application, moving pursuant to CPLR 3212, for summary judgment to dismiss plaintiff’s claim for legal malpractice, and for summary judgment on its counterclaims for legal fees and sanctions (NYSCEF No. 84, motion sequence 004 [MS4]). Plaintiff opposes the motion. The motion is decided as follows.”

“However, in accordance with the Appellate Division’s Remittal Order, here, the defendant may satisfy its initial burden by successfully demonstrating, through such an expert opinion, 1) that defendant exercised the requisite level of care, skill and diligence in representing the plaintiff; 2) that defendant’s actions were not the proximate cause of plaintiff’s loss; 3) that defendant’s reliance on plaintiff’s architect’s opinion was reasonable under the circumstances; and 4) an explanation as to why defendant was prohibited from withdrawing the previously filed Art 7-B certification and seeking a time extension to then comply with Art 7-B. In support of its position and in compliance with the First Department’s directive, defendant submits the expert opinion of Lanny R. Alexander, Esq., (Alexander) an attorney with over thirty years of experience, and a former Executive Director/General Counsel for the Loft Board (NYSCEF No. 87, [Alexander Affidavit]). Alexander asserts that defendant did not commit malpractice for several reasons. Of particular relevance, Alexander concludes that it was reasonable for defendant to rely on the architect’s Art 7-B certification. Alexander states it is often necessary for lawyers to rely on the expertise of professional architects.

Further, Alexander states that defendant was only made aware of the tenants’ answers, filed in plenary actions, seeking unpaid rent on plaintiff’s behalf, on May 17 after the close of business. Therefore, the deadline to file an extension had passed. While these answers contained an affirmative defense alleging plaintiff was not in compliance with Art 7-B, the pleading was devoid of any factual support. Therefore, even if defendant had received these answers prior to the deadline, the pleading would not have been sufficient to cause the defendant to doubt the validity of the 7-B certification, as bare legal conclusions are insufficient to raise an affirmative defense. As such, Alexander states that defendant had no reason to doubt the validity of the 7-B certification at any point prior to the deadline to file for an extension of the 7-B compliance deadline. Additionally, Alexander states a tenant’s failure to pay rent is insufficient to cause an attorney under these circumstances to be concerned about the validity of a 7-B certification, as a loft tenant’s nonpayment of rent is commonplace and “wholly unremarkable” (Id. at ¶ 31). Alexander explains that withdrawal of the 7-B certification was not an option, as it would have also required the withdrawal of all plenary actions filed in Supreme Court, the potential involvement of The New York City Department of Buildings (DOB) and a due process hearing.5 While defendant could have conceivably filed both the 7-B certification and an application seeking an extension of the same, Alexander states that the extension application would have been denied as moot. This is because the application would have sought an extension of the Art 7-B deadline that was sworn to have already been complied with by plaintiff and plaintiff’s own expert architect.6 As such, Alexander concludes that at all relevant times, defendant exercised the ordinary and reasonable skill and knowledge commonly possessed by a member of the legal profession engaged in the specialty area of Loft Law (Id.). Considering the foregoing, the Court finds that the defendant has satisfied its prima facie burden of establishing entitlement to judgment, and the burden shifts to plaintiff to provide evidence, in admissible form, establishing an issue of fact requiring a trial.”

“In opposition, plaintiff offers the expert opinion of Jason M. Frosh, Esq., (Frosh) an attorney with ten years of experience representing owners in Loft Law (NYSCEF No. 111, [Frosh Affidavit]). Frosh contends that defendant was on notice that the Art 7-B certification would be subject to challenge earlier than defendant alleges, allowing defendant time to file an extension. In support of this contention, Frosh provides a copy of the Capone tenant answer filed on May 12, 2021 (NYSCEF No. 114, [Capone Answer]), from one of the plenary actions, and an email between David Frazer (Frazer), Capone’s attorney, and the defendant. The email is specifically marked in capital letters, “FOR SETTLEMENT ONLY”, in which Frazer asks defendant to, “please provide proof [of] Art. 7-B compliance” (NYSCEF No. 116, [Frazer Email]). Frosh asserts, because this answer contains a nearly identical affirmative defense to the other tenant answers alleging plaintiff’s lack of Art 7-B compliance, it would have put defendant on notice and allowed defendant ample time to file an Art 7-B extension. Frosh’s assertion is unavailing, as defendant’s expert Alexander, previously addressed the context and circumstances of the affirmative defense, and that the lack of factual support and specificity of such an affirmative defense would not have caused any attorney to question the architect’s 7-B certification. CPLR 3013 requires that “[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.”

Furthermore, unsworn emails that are not authenticated by an affidavit constitute inadmissible hearsay (see AQ Asset Mgt. LLC v Levine, 128 AD3d 620, 621 [1st Dept 2015]). As plaintiff has failed to produce an affidavit authenticating the Frazer email, it will not be considered. While Frosh contends that defendant’s actions were below the standard of care exercised by a reasonable attorney in similar circumstances, particularly within the Loft Law context, an attorneys’ “selection of one among several reasonable courses of action does not constitute malpractice” (Rosner v Paley, 65 NY2d 736, 738 [1985]). Further, an attorney’s error in judgment does not constitute legal malpractice (see Hand v Silberman, 15 AD3d 167, 167 [1st Dept 2005]). As plaintiff has failed to meet its burden of presenting evidence in admissible form sufficient to establish an issue of material fact requiring a trial, that part of defendant’s motion that seeks summary judgment dismissing plaintiff’s complaint is granted.”