Jones Law Firm, P.C. v J Synergy Green, Inc. 2026 NY Slip Op 00840 Decided on February 17, 2026 Appellate Division, First Department is interesting as it covers Fraud, separate Judiciary Law 487 application as well as when a settlement is effectively compelled.

“The court properly concluded that the counterclaims and third-party complaint state causes of action for fraud (see generally Ambac Assur. Corp. v Countrywide Home Loans, Inc., 151 AD3d 83, 85 [1st Dept 2017], affd 31 NY3d 569 [2018]). Defendants’ causes of action allege that at the time defendants signed an engagement agreement with plaintiff in 2021, plaintiff failed to disclose the close relationship its principal, third-party defendant Tanner Jones, had with the arbitration forum chosen to handle fee disputes, third-party defendant Professional Arbitration and Mediation LLC (PAM). Defendants allege that in the fee arbitration plaintiff instituted against them, they had no input in the selection of the arbitrator, third-party defendant David Treyster, Esq. After Treyster rendered a decision awarding plaintiff $118,796.04 without a hearing, defendants learned that Treyster had a prior relationship with Jones and had been represented by Jones, that Jones had an interest in PAM, and that plaintiff and PAM shared an address in New York. At this pleading stage, appellants have failed to establish that their misrepresentations or omissions were immaterial (see Roni LLC v Arfa, 74 AD3d 442, 445 [1st Dept 2010], affd 18 NY3d 846 [2011]; cf. Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330, 350 [1999]).

Defendants also adequately allege damages, insofar as it can be inferred from the counterclaims that, had they known the truth about the relationship, they would not have hired plaintiff (cf. Connaughton v Chipotle Mexican Grill, Inc., 135 AD3d 535, 538 [1st Dept 2016], affd 29 NY3d 137 [2017]). We have considered and rejected appellants’ argument that defendants’ claims constitute breach of contract damages (cf. MaÑas v VMS Assoc., LLC, 53 AD3d 451, 454 [1st Dept 2008]).

Defendants also adequately alleged ascertainable damages in their malpractice claim by alleging that plaintiff’s conduct with respect to actions in Nassau County and the Eastern District of New York, as well as in an earlier arbitration before JAMS, exposed them to fee-shifting and rendered them unable to prove damages, forcing them to settle the matters on unfavorable terms (see generally Dweck Law Firm v Mann, 283 AD2d 292, 293 [1st Dept 2001]). Whether plaintiff sought to remedy any defects in the arbitration is a question of fact not resolvable at this pleading stage.

Furthermore, defendants sufficiently alleged damages in their Judiciary Law § 487 claims (Amalfitano v Rosenberg, 12 NY3d 8, 13 [2009]; Garanin v Hiatt, 219 AD3d 958, 958-960 [2d Dept 2023]). A claim under Judiciary Law § 487 must be supported by an allegation of damages proximately caused by an alleged false statement to the court (Saporito v Branda, 213 AD3d 588, 589 [1st Dept 2023]). Defendants specifically allege that they suffered damages in the form of legal fees incurred while defending the Article 75 summary proceeding which plaintiff initiated under false pretenses to confirm the PAM arbitration award obtained through plaintiff’s deceitful conduct (Amalfitano, 12 NY3d at 13; Garanin, 219 AD3d at 958-960).”

It’s rare to see a legal malpractice case in Civil Court rather than Supreme Court, if only for the lower jurisdictional damage numbers available. Here, the claim is potentially timely, given a broad view of “continuing representation” but is dismissed nevertheless on speculation or lack of proximate cause.

“”On a motion pursuant to CPLR 3211 (a) (5) to dismiss a complaint as barred by the applicable statute of limitations, the moving defendant must establish, prima facie, that the time in which to commence the action has expired” (Kitty Jie Yuan v 2368 W. 12th St., LLC, 119 AD3d 674 [2d Dept 2014]). The burden then shifts to the plaintiff to raise a triable issue of fact as to whether the statute of limitations is tolled or is otherwise inapplicable (see Beizer v Hirsch, 116 AD3d 725 [2d Dept 2014]). Pursuant to CPLR § 214 (6), an action to recover damages for legal malpractice must be commenced within three (3) years of when the alleged malpractice was committed.

In a legal malpractice action, the continuous representation doctrine tolls the statute of limitations only where the continuing representation pertains specifically to the matter in which the attorney committed the alleged malpractice (Shumsky v Eisenstein, 96 NY2d 164, 168 [2001]). Representation is continuous when there is “clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney” (Farage v Ehrenberg, 124 AD3d 159, 164 [2d Dept 2014], lv denied 25 NY3d 906 [2015]), or “a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” (Matter of Merker, 18 AD3d 332, 333 [1st Dept 2005]).

In the matter at bar, defendant fails to demonstrate, prima facie, that plaintiff failed to commence the action within three years of the alleged malpractice. It is uncontroverted that by the Letter, that defendant indicated that on January 6, 2021, plaintiff was informed that the case had been “closed and forfeited,” and that plaintiff agreed with defendant’s office that defendant would file a CBP Freedom of Information Act Request (FOIA) (plaintiff’s exhibit C). The Letter further indicated that on December 9, 2022, defendant even spoke to plaintiff about the results of the FOIA request. The Letter reflects an indicium of a mutual understanding of the need for further representation on the forfeiture action. Defendant’s own submissions in support of its motion raises issues of fact as to whether defendant continuously represented plaintiff, thereby tolling the statute of limitations. The FOIA request submitted by defendant clearly pertains specifically to the matter in which defendant committed the alleged malpractice. Even assuming that defendant had satisfied its initial burden, plaintiff’s submissions in opposition sufficiently establish that an issue of fact exists as to whether the defendant continuously represented him, which would toll the statute of limitations. Accordingly, this portion of defendant’s motion is denied.
[*3]Failure to State a Claim

“To establish a cause of action for legal malpractice, plaintiff must show that: (i) the attorney was negligent; (ii) the attorney’s negligence was a proximate cause of plaintiff’s loss; and (iii) plaintiff suffered actual damages” (RTW Retailwinds, Inc. v Colucci & Umans, 213 AD3d 509, 510 [1st Dept 2023]). To constitute negligence, an attorney’s conduct must be below the “ordinary and reasonable skill and knowledge commonly possessed by a member of the profession” (Bernstein v Oppenheim & Co., P.C., 160 AD2d 428, 430 [1st Dept 1990]). Plaintiff must also establish that “but for counsel’s alleged malpractice, the plaintiff would not have sustained some actual ascertainable damages” (Pellegrino v File 291 AD2d 60, 63 [1st Dept 2002], lv denied 98 NY2d 606 [2002]). Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative (Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d 714, 716 [2d Dept 2022]).

Here, even accepting the facts as alleged as true, the complaint lacks sufficient factual allegations to support plaintiff’s contention that he would have succeeded in recovering his seized assets but for defendant’s alleged negligence (see Gopstein v Bellinson Law, LLC, 227 AD3d 465 [1st Dept 2024]). Plaintiff’s assertion that had defendant timely filed the petition, his money would have been returned to him, and that he would have only been penalized 10% for failing to declare his assets are wholly unsupported, conclusory and speculative. Further, plaintiff fails to rebut defendant’s contention that his forfeiture petition would not have been successful because plaintiff failed establish the source of the funds.”

Kushakow v Law Offs. of Joseph B. Rosenberg 2026 NY Slip Op 00882 Decided on February 18, 2026 Appellate Division, Second Department is both unusual and familiar in that esate maters and legal malpractice claims almost always start with the question of “whom are you to the estate?” It was almost always the deceased who retained the attorney, and thus the person asking about legal malpractice has to be the administrator. Beneficiaries rarely have standing to sue the attorneys.

“The plaintiff commenced this action against the defendant Joseph B. Rosenberg and his firm, the defendant Law Offices of Joseph B. Rosenberg, to recover damages for legal malpractice, fraud, negligent misrepresentation, breach of fiduciary duty, unjust enrichment, and violation of Judiciary Law § 487, and for a constructive trust. The plaintiff alleged that the defendants were retained as estate planning counsel by the plaintiff’s parents, Stanley Kushakow (hereinafter Stanley) and Rita Kushakow (hereinafter Rita) in 2004. In 2005, the defendants prepared, among other things, wills and various trust documents for Stanley and Rita. The plaintiff alleged that in June 2007, Rita obtained a life insurance policy with a pay out in the sum of $10,000,000, naming Stanley as the sole beneficiary. After Stanley died in August 2014, the beneficiary of the policy was not changed, such that Stanley remained the beneficiary. On November 6, 2015, Rosenberg met with Rita to review various new estate planning documents, including, inter alia, her 2015 will, nominating Rosenberg as co-executor with the plaintiff, and a disclosure as to commissions and fees of attorney/fiduciary, which allowed for the attorney/fiduciary to receive a full commission. On September 8, 2020, Rita died. According to the plaintiff, it was the family’s intention to leave the life insurance policy proceeds to the plaintiff. The plaintiff alleged that because no amendments were made to the life insurance policy after Stanley’s death, nor were estate planning devices undertaken by the defendants, the proceeds from the life insurance policy passed through Rita’s estate, causing estate taxes to be applied and depriving the plaintiff of the full proceeds, while generating the sum of approximately $234,000 in commissions and other fees to the defendants.

The defendants moved pursuant to CPLR 3211(a) to dismiss the amended complaint. In an order entered February 14, 2024, the Supreme Court granted the motion, concluding, among other things, that the plaintiff lacked the capacity to sue. The plaintiff appeals.”

“”[S]tanding . . . concerns the absence or presence of a sufficiently cognizable stake in the outcome of the litigation” (Nicke v Schwartzapfel Partners, P.C., 148 AD3d 1168, 1171), whereas “[c]apacity to sue concerns a litigant’s power to appear and bring [his or her] grievance before the court” (id. at 1170). “Standing and capacity to sue are related, but distinguishable, legal concepts . . . [and] are both components of a party’s authority to sue” (Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242; see Matter of Hamm v Board of Elections in the City of N.Y., 194 AD3d 73, 77). Lack of standing and lack of capacity are both addressed within the scope of the same statutory subdivision, CPLR 3211(a)(3) (see Wilmington Sav. Fund Socy., FSB v Matamoro, 200 AD3d 79, 89).

A “proposed” administrator who has not obtained letters of administration lacks capacity to bring an action to recover damages on behalf of the decedent’s estate (see Gulledge v Jefferson County, 172 AD3d 1666, 1667; Muriel v New York City Health & Hosps. Corp., 52 AD3d 792, 792).”

“Accordingly, the Supreme Court properly granted the defendants’ motion pursuant to CPLR 3211(a) to dismiss the amended complaint.”

Borukhov v Roth & Khalife, LLP 2026 NY Slip Op 00575 Decided on February 05, 2026
Appellate Division, First Department is a curious case with Sullivan Papain representing appellant. That set aside, the claim is that a personal injury case was litigated in NY when it could have been litigaged in Florida. Plaintiff says that they would have done better in Florida. Is this enough?

“Plaintiff failed to state a cause of action for legal malpractice, as she failed to adequately plead that but for counsel’s alleged malpractice, she would not have sustained some actual, ascertainable damages (CPLR 3211[a][7]; see Pellegrino v File, 291 AD2d 60, 63 [1st Dept 2002], lv denied 98 NY2d 606 [2002]). Plaintiff avers in the complaint that her counsel failed to properly research personal injury verdicts obtained in Florida, and that as a result, he failed to advise her that pursuing litigation in Florida could result in a far larger monetary award than the $400,000 settlement she received after mediation in New York. These averments are not sufficiently specific to support a finding that but for counsel’s alleged negligence, plaintiff would have obtained a more favorable result (cf. Federal Ins. Co. v Lester Schwab Katz & Dwyer, LLP, 211 AD3d 527, 527 [1st Dept 2022]). Rather, they amount to purely speculative and conclusory allegations of damages, which cannot form the basis for a legal malpractice claim (see Gopstein v Bellinson Law, LLC, 227 AD3d 465, 466 [1st Dept 2024]; Pellegrino, 291 AD2d at 63).”

We previously discussed Giannone v Silvestri 2026 NY Slip Op 30171(U) February 4, 2026 Supreme Court, Tioga County Docket Number: Index No. 2024-00064107
Judge: Eugene D. Faughnan and stopped after a discussion of the fraud claims against all. The attorney defendants (really third-party defendants) have special defenses to the claims that they allowed a fraudster to claim ownership of real property and sell it fraudulently to their clients.

“In addition to the lack of particularity argument, Pasto and Pasto Law Finn also argue
that the fraud claim should be dismissed because it duplicates the negligence claim. The fraud claim against Pasto alleges that she failed to protect Defendants from misrepresentations in the sale of the premises (NYSCEF Doc. No. 6 at , 67).

The alleged negligence here was in Pasto/Pasto Law failing to protect Defendants from
the impostor. Where a cause of action for fraud arises from “the same facts as the [negligence or] legal malpractice cause of action, and [does] _not allege distinct damages”; the fraud claim is properly dismissed. Biberaj v. Acocella, 120 AD3d 1285, 1287 (2nd Dept. 2014); see, Postiglione v. Castro, 119 AD3d 920 (2nd Dept. 2014); Daniels v. Turco, 84 AD3d 858 (2nd Dept. 2011). Silvestri and Lamb allege that they retained Pasto to handle the sale and to protect their rights. Since the Court has concluded that Silvestri and Lamb are entitled to discovery to identify and describe the fraud, the Court cannot yet determine if the fraud and negligence/legal malpractice cause of actions are based the same underlying facts. Therefore, the Court cannot dismiss the fraud cause of action against Pasto and Pasto Law Finn as duplicative at this
juncture.”

“Pasto/Pasto Law represented Silvestri and Lamb, the buyers in this transaction. It is
alleged that Defendants completed the purchase as advised by Pasto, and that Pasto/Pasto Law profited due to their own negligence. Thus, the basis of the claim is that Pasto’ s negligence led to Defendant’s loss and pecuniary gain to Pasto/Pasto Law, such that Pasto/Pasto Law was unjustly enriched. The Court concludes that the facts, legal arguments and relief sought are the same, and that the unjust enrichment claim against Pasto/Pasto Law duplicates the negligence claim. See, e.g. Boesky v. Levin, l 93 AD3d 403 (1 st Dept. 2021 ); O.K. Petroleum Intl., Ltd. v. Palmieri & Castiglione, LLP, 136 AD3d_ 767 (2nd Dept. 2016); Hyman v. Burgess, 125 AD3d 1213 .”

“An unjust enrichment claim is not a “catchall” and is generally not available when other
causes of action are available. Here, the Court concludes that Defendants’ unjust enrichment claims are duplicative of their claims for negligence and breach of contract. Accordingly, the unjust enrichment claim is dismissed against all parties.”

“Pasto and Pasto Law argue that Defendants have failed to allege sufficient facts to
support a claim for legal malpractice. In particular, Pasto and Pasto Law_point out that
Defendants signed the purchase contract prior to retaining Pasto and Pasto Law, so they had already been defrauded by the impostor. They further claim that Defendants have failed to allege any facts that Pasto knew, or should have known, of the fact that someone else was posing as Giannone, or that Pasto deviated from the standard of care to provide competent legal services.

Although it appears that Defendants signed the contract prior to retaining Pasto, the Court is unpersuaded th_at such a fact shields a buyers’ attorney from any and al~ duties or liability pertaining to a forged seller’s signature. In a real estate transaction, it is not uncommon for the buyer to sign the contract ·first and then retain an attorney to handle to transaction and closing. The fact that the contract was signed does not mean that the buyer’s attorney is insulated from the effects of the execution of the contract, or the terms contained therein. In fact, review of the contract is the starting point of the representation, as it contains many items crucial to the buyer’s attorney’s representation. Those could include things such as inspection deadlines, any contingencies, property description, price, earnest money deposit, closing date, items included or excluded, as well as the parties. to the contract. Although the contract may have already been signed, the buyer’s attorney needs to ensure that all the criteria are met, and that may include considering if the seller has authority to sell the property. The Court cannot identify all the responsibilities that a buyer’s attorney may have, and Defendants have not provided details about what other actions ought to have been taken, but as noted above, the fraud and concealment surrounding the impostor make facts and details scarce to the buyers. Such facts may come to light during discovery, and the Court finds that it would be premature to dismiss Defendants’ claim for negligence/legal malpractice at this point.”

“Pasto seeks to dismiss claims directed at her individually. She claims, and Defendants do not dispute, that all the actions she to~k were through her law firm. For example, the Third-Party _ Complaint notes that Defendants “utilized Rhonda Pasto, Esq. of Pasto Law Firm, P.C. as their Attorney for this process.” There are no allegations that Ms. Pasto acted in her individual capacity or in any manner other than through her law firm or professional corporation.

Despite the fact that Pasto performed services through her professional corporation, that does not mean she is not exposed to any personal liability. Where a legal malpractice claim is brought against a law firm organized as a professional corporation, a member “can be personally liable for the negligent performance of those services if [ s ]he participated in the negligent acts or supervised and controlled the members of the corporation who committed the negligent acts” Beltrone v. General Schuyler & Co., 223 AD2d 938, 939 (3rd Dept. 1996), citing We ‘re Assocs.Co. v. Cohen, Stracher & Bloom, 103 AD2d 130 (2nd Dept. 1984), aff’d65 NY2d 148 (1985); Business Corporation Law§ 1505(a); see, Ruggiero v. Miles, 125 AD3d 1216 (3rd Dept. 2015).

Therefore, the motion to dismiss Pasto individually is denied.”

Giannone v Silvestri 2026 NY Slip Op 30171(U) February 4, 2026 Supreme Court, Tioga County Docket Number: Index No. 2024-00064107 Judge: Eugene D. Faughnan is a classic fraudster story. Property owner acquires title to property in 2014 through a bankruptcy sale. People are brought to the property, told it is for sale, and sign a contract. Problem is that the “seller” is not the actual owner. Chaos ensues after a closing.

“his case involves ownership of real property located at 211 Weiss Road in the Town of
Tioga. Plaintiff, Robert Giannone commenced an action to quiet title to the property pursuant to Article 15 of the Real Property and Proceedings Law. Plaintiff claims that, despite Silvestri and Lamb filing a deed to the property on September 30, 2024, Plaintiff is the rightful owner, having obtained title to the property via a bankruptcy sale on January 27, 2014 for $81,500, and that he has not transferred his ownership.
The Silvestri and Lamb deed was filed by Pasto Law Firm, P.C., which had been retained
by Defendants to handle the closing. The purchase price was listed as $80,000, and the closing statement shows the total cost of purchase as $81,336.81 when including filing fees and tax payments. Notwithstanding that deed, Plaintiff claims that the 2024 deed is a forgery and that he never sold his property to the Defendants. He points out that the notarization of his signature was made by a Texas notary on September 13, 2024, but that Plaintiff lives in New Jersey, further supporting a conclusion that the signature on the deed was not his.
According to Defendants, they were looking to buy land in the Tioga County area to be
used for hunting and other recreational purposes. Defendants worked with Tom Bronk, from Howard Hanna Real Estate Services (“Howard Hanna”), to help locate a suitable property. The property was listed in a posting by Howard Hanna. Believing the property to be for sale, Silvestri and Lamb walked the property with Bronk on July 21, 2024 and made an offer to purchase the property. The following day, they signed a purchase offer, which was apparently accepted by an impostor purporting to be the owner. The person posing as the owner/seller has never been identified.
Defendants retained Rhonda Pasto, with Pasto Law Firm, to handle the purchase and
closing. The purported owner/seller was represented by Thomas Collison and Meagher
Attorneys at Law (“TCM”), and TCM provided an Abstract of Title Continuation. The closing took place at the Law offices ofTCM on September 27, 2024. The deed transfer was pre-signed, supposedly by Giannone, and contains a notarization from Minerva Hollingsworth, who is employed by Great American Title Company of Baytown, Texas (“Great American Title”). Subsequent to the closing, information was obtained that Ms. Hollingsworth’s notary stamp was compromised. Defendants assert that Great American has dealt with multiple fraudulent transfers because of that notary breach.

To summarize, it appears that some unknown person pretended to own the vacant
premises, enticed Silvestri and Lamb to make a purchase offer, then forged Giannone’s signature on the deed utilizing a fake notarization. By pre-signing the deed, the impostor did not have to appear at the clos~g, which proceeded, and resulted in Silvestri and Lamb obtaininged filing a deed to the property. Sometime later, Giannone discovered that someone else was claiming to be the owner of this property, and signed a deed without his knowledge.”

“CPLR § 3016(b) also states that “[ w ]here a cause of action or defense is based upon
misrepresentation, fraud, mistake, wilful default, breach of trust or undue influence, the
circumstances constituting the wrong shall be stated in detail.” Accordingly, it has been
recognized that an action based on fraud is subject to a heightened pleading standard. See, Garza v. Nunz Realty LLC, 187 AD3d 467 (1 st Dept. 2020); Orchard Hotel LLC v. D.A.B. Group LLC, 172 AD3d 530 (1st Dept. 2019). The purpose of the heightened pleading standard is to inform the defendant of the acts giving rise to the claim of fraud. Vague allegations will not be sufficient to sustain a claim for fraud.

However, “section 3016 (b) should not be so strictly interpreted as to prevent an
otherwise valid cause.of action in situations where it may be impossible to state in detail the circumstances constituting a fraud … Thus, where concrete facts are peculiarly within the knowledge of the party charged with the fraud, it would work a potentially unnecessary injustice to dismiss a case at an early stage where any pleading deficiency might be cured later in the proceedings” Pludeman v. Northern Leasing Sys., Inc., 10 NY3d 486, 491-492 (2008) (internal quotation marks, citations and end citations omitted); see, Neptune Issue Inc. Profit Sharing Plan v. Eliopoulos, 242 AD3d 1474 (3rd Dept. 2025).

In the instant matter, while all three motions are correct that Silvestri and Lamb have not provided much detail as to the alleged fraud committed by any of the Third-Party Defendants, the Court concludes that the flaw does not require dismissal. The underlying premise of the Defendants’ claims is that they were duped into signing a contract to purchase property from a fraudster, who ultimately did not actually own the property. Defendants were misled into believing they were dealing with a person who had a legal right to convey the property. Plaintiff claims to be unaware of who falsely posed as owner of the property; Silvestri and Lamb did not ever meet the person who signed the deed to them, nor do they have any information concerning that person or how they came to be involved in this transaction. Since the identity of the impostor was concealed from Silvestri and Lamb, and they were unaware that the person from
whom they were purchasing the land did not really own it, it is understandable, and unavoidable, that Defendants would not be able to provide particularity. They do not have details of how this occurred; if they knew, they might have been able to avoid the scam in the first place. On the other hand, other parties, including the proposed Third-Party Defendants would more likely be in possession of the facts concerning the alleged fraud, or how it occurred. Ultimately, it may be that the unidentified fraudster is the only culpable party and concealed all pertinent facts from everyone, but Silvestri and Lamb should at least be able to conduct discovery to determine the role, if any, of other parties in the transaction, or any details that could shed light on how the fraud occurred. If appropriate, Silvestri and Lamb may need to amend their Third- Party
Complaint and/or file a Bill of Particulars to reflect any information that comes to light during discovery. Furthermore, a motion, or motions, for summary judgment can be made in the future depending on what facts are revealed during discovery. Therefore, the Court will not dismiss the fraud claim on the basis that it has not been set forth with particularity.· That determination only addresses the heightened pleading aspect, but the Third-Party Defendants have also raised other grounds for dismissal of the fraud claim.”

Judicial estoppel is an equitable doctrine which prevents a litigant from taking a position which is inconsistent with the position it previously took in earlier litigation. Another phrase might be “flip-flopping.”

In Lending Assets, LLC v Gerbi 2026 NY Slip Op 00472 Decided on February 03, 2026
Appellate Division, First Department defendants were able to invoke this principle.

“Supreme Court properly dismissed this action, as the documentary evidence submitted by defendants in support of their motion to dismiss utterly refutes an essential element of plaintiff’s legal malpractice claims — specifically, that defendants had a nondelegable duty to obtain valid title policies and ensure that certain mortgages were recorded in first lien positions (see Mill Fin., LLC v Gillett, 122 AD3d 98, 103 [1st Dept 2014]). Indeed, plaintiff admitted in a complaint in another action that it believed a third party had the duties that plaintiff ascribes to defendants in this complaint, that it relied on this belief to its detriment, and that this reliance led to damages. Thus, negligence, an essential element of a legal malpractice claim, has been “utterly refute[d]” because the allegations in the other complaint amount to a concession that the duties underlying plaintiff’s legal malpractice cause of action are not, in fact, attributable to defendants (CPLR 3211[a][1]; see Excelsior Capital LLC v K&L Gates LLP, 138 AD3d 492, 492 [1st Dept 2016], lv denied 28 NY3d 906 [2016]; see also Yassky v Meltzer, Lippe, Goldstein & Schlissel, P.C., 36 AD3d 420, 421 [1st Dept 2007]). Furthermore, these judicial admissions constitute admissible documentary evidence for purposes of defendants’ motion to dismiss (see New Greenwich Litig. Trustee, LLC v Citco Fund Servs. [Europe] B.V., 145 AD3d 16, 25 [1st Dept 2016], lv denied 29 NY3d 917 [2017]).”

It is our anecdotal experience that legal malpractice cases suffer a higher percentage of dismissals at the CPLR 3211 stage than do other types of claims, including medical malpractice. Park W. Exec. Servs., Inc. v Gallo Vitucci & Klar, LLP 2026 NY Slip Op 00428
Decided on January 29, 2026 Appellate Division, First Department is a case lost on a CPLR 3211 motion and reversed on appeal.

This legal malpractice action arises from an underlying personal injury action in which defendants represented Park West Executive Services, a company that furnishes taxi and limousine drivers to customers in need of transportation. The underlying action involved a motor vehicle accident in which the driver of one of the vehicles, nonparty Margaret Rivera, had an independent contractor contract with Park West to offer driving services to customers secured by Park West. The driver of the second vehicle involved in the accident commenced the underlying personal injury action against Park West, Rivera, and the owner of the vehicle that was leased to Rivera. In that underlying action, defendants conceded that Rivera was Park West’s employee. A settlement was reached in the underlying action and, shortly thereafter, plaintiffs commenced this action for legal malpractice.

The motion court improperly held that plaintiffs failed to state a cause of action for legal malpractice against defendants. To state a claim for legal malpractice, a “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]). Moreover, 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” (83 Willow LLC v Apollo, 187 AD3d 563, 563 [1st Dept 2020] [internal citation omitted]).

Here, plaintiffs argue that but for defendants’ negligence in waiving Park West’s independent contractor defense in the underlying action, without their consent and without disclosing conflicts in their representation of several defendants in the action, they would not have been compelled to settle the action, and they would not have been held vicariously liable for Rivera’s negligence. To prevail on its malpractice claim, plaintiffs will ultimately have to prove proximate cause. The discovery in the underlying personal injury action raised factual issues as to whether Park West controlled the means and methods of Rivera’s work (see Goodwin v Comcast Corp., 42 AD3d 322, 322 [1st Dept 2007]), regardless of the existence of the independent contractor agreement between Rivera and Park West (see Edwards v Rosario, 166 AD3d 453 [1st Dept 2018]; Cross v Supersonic Motor Messenger Courier, Inc., 140 AD3d 503, 504 [1st Dept 2016]), and the motion court or a jury will need to resolve this issue post-discovery. However, at this pre-answer motion to dismiss stage of the litigation, plaintiffs have sufficiently plead a claim for legal malpractice.

Defendants’ argument concerning litigation strategy/professional judgment was raised for the first time on appeal and is therefore unpreserved (see Diarrassouba v Consolidated Edison Co. of N.Y. Inc., 123 AD3d 525, 525 [1st Dept 2014]).”