Eshaghian v Dorsey & Whitney LLP 2023 NY Slip Op 33102(U) September 6, 2023
Supreme Court, New York County Docket Number: Index No. 154087/2020
Judge: Shlomo S. Hagler is the inverse of a common legal malpractice trope, siblings who act badly to each other for financial reasons which then devolves into legal malpractice claims over how the intra-sibling issues resolve. Here, the brothers worked well together for decades, only for it to unravel on the death of one of them.

“Plaintiff David and his brother Eshagh Eshaghian (Ike), now deceased, maintained a
decades long partnership relationship, engaging in the business of selling, buying, and
developing real property. The complaint alleges that ”the relationship was based upon love, family ties and mutual respect” (NYSCEF Doc. No. 1 [Complaint], , 14)

In 2001, Ike was diagnosed with cancer and began a regime of surgery, chemotherapy,
and radiation. At the time of the diagnosis, the brothers were in the midst of developing one of their buildings into a condominium (the York Avenue Project). They agreed to sell part of said project to a third party (the Buyer). David continued to work on the York Avenue Project, including negotiating with the Buyer, while undertaking significant responsibility for his brother’s care.

Early in 2003, at a family gathering in California, Ike proposed that David prepare an
agreement memorializing certain management and financial relationships in connection with the sale of the York A venue Project. David alleges that this was the first time in more than thirty years of working together that Ike wanted to memorialize an agreement in writing.”

“On May 5, 2003, Ike passed away, three weeks before the scheduled sale of the York
Avenue Project. Immediately after Ike’s death, the executors of his will, Mahrokh and Tanaz, changed the locks on the office which David and Ike had shared since 1980, and denied David access to his office. Mahrokh and Tanaz allegedly caused huge amounts of papers and documents which were in that common office to be shredded and discarded. They claimed that the Side Agreement was invalid and refused to comply with its terms. Since then, litigation has “rage[d]” in the Surrogate’s Court of Queens County regarding every aspect of the properties previously owned by David and Ike (Id., -,i 32). The original Side Agreement has never been found.”

“The first cause of action for legal malpractice is based on the trial. It alleges that
defendants failed to adequately research the law concerning the evidentiary issues pertinent to the proceeding, namely the Dead Man’s Statute and the best evidence rule, that defendants were unprepared for trial, and that they did not adequately explain to David the risks which the evidentiary rules posed to his chances of prevailing. David contends that defendants should have called a handwriting expert as a witness who could have testified that Ike’s signature on David’s photocopy was a copy of Ike’s real signature.

The trial transcript (NYSCEF Doc. No. 54) shows that counsel for Ike’s estate objected to
any question posed by Singer to David remotely touching on the Side Agreement or David’s business relations with Ike and that the Surrogate sustained each objection. The complaint alleges that other evidence could have been introduced that might have shown the validity of the Side Agreement.

The complaint alleges further that at the trial, Singer failed to call any disinterested
witnesses (witnesses whose testimony did not run afoul of the Dead Man’s Statute) to testify about the circumstances attendant upon the making of the Side Agreement, failed to properly examine David, the one witness called by his side, and failed to offer any documents into evidence. The complaint also alleges that defendant made no attempt to offer the Side Agreement into evidence, “even though that document was the very gravamen of the proceeding” (NYSCEF Doc. No. l [Complaint], ,i 102)”

“Accepting the complaint as true and according plaintiff the benefit of every possible
favorable inference, the subject complaint sufficiently alleges a cause of action to recover damages for legal malpractice (see Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo,l 13 AD3d 587, 589 [2d Dept 2014]). The complaint alleges that Singer and his firm breached their duty towards their client David by failing to exercise the ordinary reasonable skill and knowledge commonly possessed by attorneys, causing plaintiff to lose his case and/or to incur damages (see McCoy v Feinman, 99 NY2d 295, 301-302 [2002]). The September 15, 2004 Letter
Singer submits a September 15, 2004 letter with an attached memorandum that he claims he wrote and sent to David (NYSCEF Doc. No. 26). The 23-page memorandum is a discussion of the law regarding David’s position that the Side Agreement is valid. The memorandum presents the obstacles presented by the Dead Man’s Statute and the best evidence rule, and the chances of overcoming those obstacles. The memorandum evaluates whether the copy of the Side Agreement will be admitted into evidence.
There is no evidence that David received such letter and memorandum. In his opposition affidavit, David states that he has no recollection of receiving it, and Singer’s claim that the letter was mailed does not give rise to the presumption of receipt, as he does not present evidence of defendant firm’s office practices pertinent to mailing (see Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 AD3d 790, 793 [2d Dept 2015]; Morrison Cohen Singer & Weinstein, LLP v Brophy, 19 AD3d 161, 162 [1 st Dept 2005]).

Even if the presumption of receipt were to be established, the letter and memorandum
would not show that the causes of action for legal malpractice should be dismissed. Singer contends that he adequately informed David of the evidentiary obstacles in his case. However, under CPLR § 3211 (a) (1) “dismissal is warranted only if the documentary evidence submitted utterly refutes plaintiff’s factual allegations” (Amsterdam Hospitality Group, LLC v MarshallAlan Assoc., Inc., 120 AD3d 431, 433 [1 st Sept 2014] [internal quotation marks and citation omitted]). The letter does not conclusively establish a defense to this action. While the letter may show that plaintiff was put on notice of the difficulties of his case, plaintiff’s allegations regarding the trial, raise factual issues regarding defendants’ alleged failure to present a sufficient case at the subject trial. “At this pre-discovery stage of the present litigation, th[is] submissio[n] do[es] not meet the CPLR 3211 (a) (1) requirement of conclusively establishing [the] defense as a matter of law” (IMO Indus. v Anderson Kill & Glick, 267 AD2d 10, 11 [1 st
Dept 1999]).”

While proximate cause is always an element of torts, we believe that the additional element of “but for” causation is unique to legal malpractice claims.  “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” (AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434, 866 NE2d 1033, 834 NYS2d 705 [2007]), or would not have sustained “actual and ascertainable” damages (Dombrowski, 19 NY3d at 350; Brooks v Lewin, 21 AD3d 731, 734, 800 NYS2d 695 [1st Dept 2005], lv denied 6 NY3d 713, 849 NE2d 972, 816 NYS2d 749 [2006]).

1934 Bedford, LLC v Gutman Weiss, P.C. 2023 NY Slip Op 04558 Decided on September 13, 2023 Appellate Division, Second Department illustrates how this can derail plaintiff’s case.

“Although leave to amend a pleading should be freely given in the absence of prejudice or surprise to the opposing party (see id.), a motion for leave to amend should be denied where the proposed amendment is palpably insufficient or patently devoid of merit (see Buccigrossi v Glatman, 214 AD3d 696; Silverman v Potruch & Daab, LLC, 142 AD3d 660, 661; Pedote v Kelly, 124 AD3d 855, 856; Lucido v Mancuso, 49 AD3d 220, 229). “A determination whether to grant such leave is within the Supreme Court’s broad discretion, and the exercise of that discretion will not be lightly disturbed” (Gitlin v Chirinkin, 60 AD3d 901, 902; see U.S. Bank N.A. v Cuesta, 208 AD3d 821, 822; Johnson v Ortiz Transp., LLC, 205 AD3d 696, 697).

Here, the Supreme Court providently exercised its discretion in denying that branch of the plaintiffs’ motion which was pursuant to CPLR 3025(b) for leave to amend the complaint, as the proposed amendment was palpably insufficient or patently without merit. The proposed amendment failed to sufficiently allege that “but for” the defendants’ alleged negligence, the plaintiffs “would not have incurred any damages” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 49-50; McCoy v Feinman, 99 NY2d 295, 301-302).”

Genesis Merchant Partners, LP v Gilbride, Tusa, Last & Spellane LLC 2023 NY Slip Op 33130(U) September 6, 2023 Supreme Court, New York County Docket Number: Index No. 653145/2014 Judge: Nancy M. Bannon illustrates the general rule against multiple motions for summary judgment, even after an appellate reversal.

“In this action to recover damages, inter alia, for legal malpractice, plaintiffs, two related venture capital firms, move pursuant to CPLR 3212 for summary judgment (1) on the issue of liability on so much of the first cause of action as alleges that defendants, plaintiffs’ former counsel, committed legal malpractice in failing to perfect security interests in certain life insurance policies that were pledged as collateral for a series of loans made by plaintiffs to nonparty Progressive Capital Solutions, LLC (“Progressive”); and (2) dismissing defendants’ counterclaims seeking unpaid legal fees upon theories of quantum meruit and account stated (MOT SEQ 016). Defendants oppose the motion. By order dated October 31, 2022, defendants’ motion for summary judgment dismissing the complaint as against defendant Kenneth M. Gammill, Jr. was granted (MOT SEQ 017), and the instant motion was deemed amended to remove defendant Kenneth M. Gammill, Jr. The motion as amended is denied as barred by the principle of law of the case and the prohibition against successive summary judgment motions.

This is plaintiffs’ second motion for summary judgment. On December 31, 2015, plaintiffs filed their first summary judgment motion seeking the same relief – a determination of defendants’ liability on the first cause of action for legal malpractice, and dismissal of defendants’ counterclaims – based on substantially the same arguments as their present motion that defendants committed legal malpractice which proximately caused plaintiffs’ damages. By an order dated February 27, 2017, this court granted plaintiffs’ prior motion, holding that defendants negligently discharged their duty to perfect plaintiffs’ security interests, and that defendants’ counterclaims were subject to dismissal because they sought payment for the very work that constituted the alleged malpractice.
Upon the defendants’ appeal, the Appellate Division, First Department, by order dated
January 11, 2018, reversed, denied summary judgment to plaintiffs, and reinstated defendants’ counterclaims. Genesis Merchant Partners, L.P. v Gilbride, Tusa, Last & Spellane, LLC, 157 AD3d 479 (1st Dept. 2018). The Court held that the parties’ competing affidavits, the Collateral Assignment of Contracts (one of the loan documents drafted by defendants), and emails between the parties raised triable issues of fact as to the scope of defendants’ representation of plaintiffs. Specifically, the Court found issues of fact as to whether defendants’ role was limited, at plaintiffs’ express instruction, to exclude a duty to perfect plaintiffs’ security interests in the subject insurance policies, and if so limited, whether defendants ensured that plaintiffs, their
clients, understood that defendants were not responsible for perfecting the subject security interests. The Court further noted that discovery was not completed at the time of the first motion, that defendants had outstanding discovery requests “relating to issues of proximate cause”, and that by granting summary judgment while discovery was ongoing, this court had “foreclos[ed defendants’] attempt to obtain material and necessary discovery to [their] defenses.” As to defendants’ counterclaims, the Court held that their dismissal was improper given the reversal and denial of summary judgment on the issue of liability for legal malpractice. “

“Even were the present motion not barred by the principle of law of the case, it is barred by the prohibition against successive summary judgment motions. It is well-settled that “[s]uccessive motions for summary judgment should not be entertained without a showing of newly discovered evidence or other sufficient justification.” Jones v 636 Holding Corp., 73 AD3d 409, 409 (1st Dept. 2010); see Landis v 383 Realty Corp., 175 AD3d 1207, 1207 (1st Dept. 2019). To justify a successive summary judgment motion, purportedly “new” evidence must have been “unavailable to [the movant] before the prior motion[.]” Lorne v 50 Madison Ave LLC, 198 AD3d 483, 483 (1st Dept. 2021); see Landis v 383 Realty Corp., supra; Maggio v 24 West 57 APF, LLC, 134 AD3d 621, 625-26 (1st Dept. 2015). An intervening appellate decision in the same case may also constitute “sufficient justification” for a successive summary judgment motion if the decision clarifies or changes the controlling law. See Amill v Lawrence Ruben Co., 117 AD3d 433, 433–34 (1st Dept. 2014). It has also been held that a court may entertain a successive summary judgment motion that is ‘“substantively valid”’ and ‘“will further the ends of
justice and eliminate an unnecessary burden on the resources of the courts.”’ Wells Fargo Bank, N.A., v Osias, 205 AD3d 979, 982 (2nd Dept. 2022), quoting Aurora Loan Servs., LLC v Yogev, 194 AD3d 996, 997 (2nd Dept. 2021). That is, entertaining the motion would ‘“enhance[] judicial efficiency.”’ MTGLQ Investors, LP v Collado, 183 AD3d 414, 414 (1st Dept. 2020), quoting Landmark Capital Invs., Inc. v Li-Shan Wang, 94 AD3d 418, 419 (1st Dept. 2012). However, this is a “narrow exception to the successive summary judgment rule.” Wells Fargo Bank, N.A, v Osias, supra at 981 (internal quotation marks omitted). ‘“Successive motions for the same relief burden the courts and contribute to the delay and cost of litigation. A party seeking summary judgment should anticipate having to lay bare its proof and should not expect that it will readily be granted a second or third chance.”’ Id. at 982, quoting Deutsche Bank Natl. Trust Co. v Elshiekh, 179 AD3d 1017, 1020 (2nd Dept. 2020).”

Van Ravenstein v Ponder 2023 NY Slip Op 33072(U) September 6, 2023 Supreme Court, New York County Docket Number: Index No. 161420/2019 is an interesting opinion from Judge Shlomo S. Hagler in which he rejects defenses of collateral estoppel and res judicata. Often, in similar settings, these defenses succeed.

“In the underlying action, All in the Works, LLC (AITW), a creator and producer of film
and digital content, alleged that in 2016 it entered into a contract with Cleveland, a fashion model, to produce a documentary film detailing certain aspects of Cleveland’s life. According to AITW, Cleveland breached the contract by failing to cooperate with the production of the film, instead signing on to produce a different documentary with Next Management, LLC (Next).

AITW initiated the underlying action seeking to recover damages against Cleveland for breach of contract and breach of the implied covenant of good faith and fair dealing, and to recover damages from Next for tortious interference with contract (Record in Underlying Action, NYSCEF Doc. Nos. 9 & 25). On April 19, 2018, AITW stipulated to discontinue the underlying action insofar as asserted against Next.

In the meantime, Cleveland was served with the summons and complaint in the
underlying action on or about February 13, 2017. After Cleveland failed to appear or answer, AITW moved for leave to enter a default judgment against her on the issue of liability. In an order, dated June 11, 2018, the court granted the motion without opposition and ordered an immediate trial on damages.

On June 25, 2018, Cleveland entered into a retainer agreement with Ponder, pursuant to
which Ponder agreed to represent her in the underlying action and Cleveland paid Ponder a $5,000 retainer (NYSCEF Doc. No. 3). On July 12, 2018, Ponder filed a notice of appearance and a jury demand, along with a document entitled “Notice of Rejection,” purporting to “reject” the note of issue filed by AITW. However, Ponder took no steps to vacate the default judgment against Cleveland.”

“Cleveland thereafter retained new counsel. On October 4, 2019, Cleveland’s new
counsel moved to vacate Cleveland’s default, arguing that Cleveland’s failure to appear or respond was not intentional or part of a pattern of neglect, but rather the direct result of Ponder’ s incompetence.

By order, dated May 7, 2020, the court denied the motion, reasoning as follows:
“The sole excuse offered by Cleveland in support of the motion is her
allegation that her failure to appear was due to incompetence and malpractice
on the part of her attorney. At the outset, this excuse is deficient as Cleveland
defaulted in appearing in this action prior to engaging her attorney and the
filing of his notice of appearance. Further, even if a portion of the delay is
attributable to her attorney, this excuse, substantiated by Cleveland’s
conclusory affidavit, is insufficient particularly in light of the pattern of neglect
in this case. Cleveland failed to answer despite personal delivery of the
summons and complaint. The motion to strike her jury demand was ‘granted
on default’ and neither Cleveland nor her attorney appeared at the inquest.
Only nearly a year after entry of judgment did Cleveland move to vacate her
default.
Inasmuch as movant failed to demonstrate a reasonable excuse for her default
‘ it is unnecessary to determine whether Cleveland has shown the existence of a
potentially meritorious defense. Even if the court were to assume a reasonable
excuse were proffered, Cleveland’s posited defenses to the motion and action
lack merit”

“Ponder’s contention that the amended complaint should be dismissed pursuant to CPLR 3211 (a) (5) as barred by the doctrine of res judicata is also without merit. “[U]nder res judicata, or claim preclusion, a valid final judgment bars future actions between the same parties, or those in privity with them, on any claims arising out of the same transaction or series of transactions … even if based upon different theories or if seeking a different remedy” (East Hampton Capital LLC v Fergusson, 183 AD3d 409, 409-410 [1st Dept 202.0][internal quotation marks and citations omitted]). “Since res judicata precludes relitigation of issues actually litigated and resolved in a prior proceeding, the party seeking to invoke the doctrine of res judicata must demonstrate that the critical issue in a subsequent action was decided in the prior action and that
the party against whom estoppel is sought was afforded a full and fair opportunity to contest such issue” (Gomez v Brill Sec., Inc., 95 AD3d 32, 35 [1st Dept 2012]).

Here, Cleveland’s claims against Ponder in the present action do not arise out of the same transaction or series of transactions as those raised in the underlying litigation which involved the alleged breach of a contractual agreement between Cleveland and AITW regarding the production of a documentary film. In addition, Cleveland was not afforded an opportunity to contest the issue of Ponder’s inadequate representation in the underlying action. Therefore, the claims in the instant action are not barred by res judicata.

To the extent Ponder is arguing that the doctrine of collateral estoppel precludes
Cleveland’s malpractice claim against him, this contention also lacks merit. “Collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue raised in a prior action or proceeding and decided against that party or those in privity” (Buechel v Bain, 97 NY2d 295, 303 [2001], cert denied 535 US 1096 [2002]). At issue in the instant action is whether Ponder was negligent in his representation of Cleveland in the underlying action, including his failure to prepare for, or appear at, the hearing on damages. The underlying action neither addressed nor decided this question. As such, there is no identity of issues necessary to sustain application of collateral estoppel.”

In Five Towns Pediatrics, P.C. v Billet, Feit & Preis, P.C. 2023 NY Slip Op 32328(U) July 12, 2023 Supreme Court, New York County Docket Number: Index No. 157252/2018
Judge: Andrea Masley we see that plaintiff had a rocky course with its accountants. Claims of embezzlement, mistakes, hiring and firing abound. In the end claims were lost on statute of limitations grounds.

“This is an action for accounting malpractice. The BFP Defendants were engaged
by plaintiff from 2009 to May 2015 and June 2017 to January 2018 to perform
accounting services. (NYSCEF 82, Verified Complaint ,m 9, 10.) Plaintiff fired BFP and
Steier in May 2015 because plaintiff was not satisfied with Steier’s handling of certain
real estate transactions. (NYSCEF 133, Schlusselberg aff,i 10; NYSCEF 121, tr at
190:9-191 :2 [Green Depa]; NYSCEF 118, tr at 86:2-22 [Schlusselberg Depa].) Plaintiff
engaged MWE2 from March 20153 until December 2017. (NYSCEF 133, Schlusselberg
aff ,i,i19, 25.) MWE was fired in 2017 “due to [an] error that had been committed with
regard to individual tax preparation for Dr. Green.” (Id. ,i 25.) Plaintiff then rehired BFP,
but eventually hired a new accountant because plaintiff’s mortgage required bank
approval of plaintiff’s accounting firm and the bank holding plaintiff’s mortgage would not
approve BFP. (NYSCEF 118, tr at 134:22-135:6 [Schlusselberg Depa].) After hiring the
new accounting firm, it was discovered that plaintiff’s practice administrator, Peter
Singh, was embezzling money from plaintiff. (Id. at 140.) Plaintiff alleges that

defendants’ failure to discover this fraud was malpractice and that is the basis of this
action. (NYSCEF 82, Verified Complaint ,i 34; NYSCEF 133, Schlussel berg aff ,i,i 10,
24-25.)
Motion Seq. No. 002 – Summary Judgment (MWE Defendants)
This motion is granted, in part. Plaintiff and MWE entered into four engagement
letters in September 2015, January 2016, September 2016, and April 2017. (NYSCEF
102-104, Engagement Letters.) The engagement letters clearly document the scope of
the engagement: prepare tax returns and compilations. (Id.) There is no ambiguity and
plaintiff cannot create one. ( Universal Am. Corp. v National Union Fire Ins. Co. of
Pittsburgh, PA., 25 NY3d 675, 680 [2015] [citation omitted] [“[P]arties cannot create
ambiguity from whole cloth where none exists, because provisions ‘are not ambiguous
merely because the parties interpret them differently.”‘].)”

“This motion [BFP Defendants Summary Judgment] is granted. The BFP Defendants argue that plaintiff’s action is barred by a three-year statute of limitations. (CPLR 214[6].) However, plaintiff asserts that the continuous representation doctrine tolls the three-year statute of limitations. “The continuous representation doctrine tolls the running of the statute of limitations on a claim arising from the rendition of professional services only so long as the defendant continues to advise the client ‘in connection with the particular transaction which is the subject of the action and not merely during the continuation of a general professional relationship.”‘ (Booth v Kriegel, 36 AD3d 312, 314 [1st Dept 2006] [citations omitted]; see also Pace v Horowitz, 190 AD3d 619, 619 [1st Dept 2021] [citations omitted] [“The continuous representation doctrine toll does not apply based merely on the existence of an ongoing professional relationship, but only where the particular course of representation giving rise to the particular problems resulting in the alleged malpractice is ongoing.”].) BFP was terminated in 2015 and ceased providing any services to plaintiff until it was rehired in 2017. (NYSCEF 121, tr at 190:9-191 :2, 201 :23-202:8 [Green Depo]; NYSCEF 118, tr at 86:2-22, 100:6-24 [Schlussel berg Depo]; NYSCEF 119, tr at 100:25-101 :9, 104:3-21 [Steier Depo].) This is not continuous representation. BFP provided no services during the limitations period that
tolled the running of the statute of limitations. (See Booth, 36 AD3d at 314.) There was
no uninterrupted course of services. (Sendar Dev. Co., LLC v CMA Design Studio P.C.,
68 AD3d 500, 503 [1st Dept 2009] [Plaintiff must show that it relied upon an
uninterrupted course of services related the duty allegedly breached.].) Further, there
was no mutual understanding that BFP would perform future services. (McCoy v
Feinman, 99 NY2d 295, 306 [2002] [“The continuous representation doctrine tolls the
statute of limitations only where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim.”].)
As plaintiff filed this action on August 3, 2018, plaintiff’s action is barred against
the BFP Defendants for services provided before August 3, 2015. As to the alleged
malpractice for the six-month period of 2017 to 2018, plaintiff fails to raise an issue of
fact as to whether BFP departed from accepted standards of practice which was the
proximate cause of plaintiff’s loss. BFP’s engagement was to prepare tax returns and
compilations; not to audit BFP’s books or perform a forensic accounting. (NYSCEF
118, tr at 141-142 [Schlusselberg Depa]; NYSCEF 98, tr. at 104-105:19 [Steier Depa];
NYSCEF 120, tr. at 141 :3-142:21 [Plaintiff’s Expert Depa].) Just like with the MWE
Defendants, plaintiff cannot expand BFP’s engagement with its “know your client” theory for which it offers no legal support. Further, BFP was terminated before it could really begin its second engagement, which was identical to MWE’s engagement -to prepare tax returns and compilations. (Id.) Indeed, the tax returns could not be prepared before the year ended. (NYSCEF 120, tr. at 168:10-169:12 [Plaintiff’s Expert Depo].)”

NFGTV, Inc. v Lutz & Carr Certified Pub. Accountants, LLP 2023 NY Slip Op 50849(U) [79 Misc 3d 1241(A)] Decided on August 9, 2023 Supreme Court, New York County
Borrok, J. is the rare summary judgment win by a plaintiff. In this case, defendants’ own application to the IRS doomed the defense.

“NFGTV’s motion (Mtn. Seq. No. 001) for summary judgment is granted because it is undisputed that L&C advised both Two Franks and NFGTV that it was necessary to file an IRS Form 3115 and then filed it for Two Franks but failed to file it for NFGTV. Subsequently, when L&C acknowledged their mistake, they themselves told the IRS that the individual plaintiffs would be entitled to a refund and the amount of such proposed refund (i.e., that there was sufficient basis for such refund). Lastly, to the extent that L&C argues that this should have been picked up by the accountants doing the taxes for tax years following the 2016 tax year, it was L&C who completed the tax returns for the 2017 tax year and they did not in fact pick up the 2016 error that they had made. As such, L&C does not raise an issue of fact warranting denial of the motion or a trial on the issue of their liability (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Damages are referred to a JHO/Special Referee to hear and determine.”

“In their opposition papers, L&C argues that there are material issues of fact as to whether (i) whether their failure to prepare and file the IRS Form 3115 for NFGTV was a departure from the accepted standards of accounting practice such that it can constitute malpractice, (ii) whether Messrs. Barraud and Springman would have been able to deduct flow-through losses from NFGTV to their individual tax returns to offset their taxable income, such that they were damaged, and (iii) whether the accountants that were hired by the plaintiffs after L&C was terminated failed to correct the 2016 tax returns before the statute of limitations closed, such that their actions constitute an intervening cause. The arguments fail.

A court can find malpractice absent expert testimony where the ordinary experience of the fact finder provides a sufficient basis for judging the adequacy of the professional service (Estate of Nevelson v Carro, Spanbock, Kaster & Cuiffo, 259 AD2d 282, 283 [1st Dept 1999]; cf. Gertler v Sol Masch & Co., 40 AD2d 282, 282 [1st Dept 2007]).

As discussed above, it is undisputed that L&C both advised that filing the IRS Form 3115 was required and they did in fact file it for one of the plaintiffs’ companies (Two Franks) but not for the other (NFGTV) for the 2016 tax year. Stated differently, L&C established the standard of [*3]care required and their own breach by advising that the Form 3115 was required and by admitting that they had made a mistake in not filing it (NYSCEF Doc. No. 71, at 2-3). Additionally, L&C themselves submitted papers to the IRS indicating that as a result of their mistake, the plaintiffs were damaged and that the plaintiffs substantially overpaid their taxes and the individual plaintiffs were entitled to take these deductions on their individual tax returns (NYSCEF Doc. Nos. 71-73). This isn’t a question of the plaintiffs’ word against the defendant’s, it is a question of the defendant’s word against the defendant. As such, there are no material issues of fact for trial that the defendant committed professional malpractice.^[FN1] Finally the Court notes that the work done by other accounting firms for subsequent years does not constitute an intervening superseding cause to the work done by L&C for the 2016 tax year because it was L&C that completed the tax returns for the 2017 tax year (Bachmann, Schwartz & Abramson v Advance Intl., 251 AD2d 252, 253 [1st Dept 1998]; cf. Pyne v Block & Assoc., 305 AD2d 213 [1st Dept 2003] and Golden v Cascione, Chechanover & Purcigliotti, 286 AD2d 281 [1st Dept 2001]).”

Silverman v Greenberg 2023 NY Slip Op 32993(U) August 28, 2023
Supreme Court, New York County Docket Number: Index No. 450304/2021
Judge: Louis L. Nock is a case in which Plaintiff strikes out. Three pitches, three strikes.

“In this legal malpractice action, Secured Worldwide, LLC (“Secured”), predecessor in
interest to American Diamond Mint LLC, and its principal, plaintiff Arthur Joseph Lipton, were represented by defendants in a federal action captioned Secured Worldwide, LLC v Kinney (No. 15 Civ. 1761, U.S. Dist. Ct., S.D.N.Y.) (the “Federal Action”). Plaintiffs herein claim that defendants committed the following acts of malpractice: failing to object to the consideration of evidence and testimony that was assertedly precluded under an earlier order of the court in the Federal Action; failing to question a witness regarding potential impeachment information; and failing to take an appeal of the adverse decision rendered in the Federal Action against Secured. Plaintiffs assert that the adverse decision was then used as the basis for a collateral estoppel finding in other action involving plaintiffs, the end-result of which led to Secured and Lipton declaring bankruptcy.”

“Plaintiffs’ argument that defendants failed to adequately object to the consideration of certain evidence and testimony regarding Secured’s relationship with nonparty GemShares is undermined by the federal District Court’s supplemental order
(NYSCEF Doc. No. 15) clarifying a prior in limine order (NYSCEF Doc. No. 4), which clarified that: “the in limine ruling does not bar either party from introducing evidence about (1) the relationship between GemShares and Secured Worldwide; (2) how Kinney became involved with Secured Worldwide . . . . Kinney’s time at GemShares provides necessary background for the claims in suit.” (NYSCEF Doc. No. 15 at 1 [emphasis added].) Thus, the court in the Federal Action had expressly held that the evidence and testimony to which plaintiffs assert defendants should have objected, was admissible”

“Additionally, and as a general matter, disagreement with an attorney’s reasonable
strategic and tactical choices is not grounds for malpractice (Iocovello v Weingrad & Weingrad, LLP, 4 AD3d 208 [1st Dept 2004]), and “hindsight . . . is an unreliable test for determining the past existence of legal malpractice” (Sklover & Donath, LLC v Eber-Schmid, 71 AD3d 497, 498 [1st Dept 2010] [internal quotation marks and citations omitted]). Further, and specifically with regard to defendants’ asserted failure to elicit impeachment evidence from a witness, the trial testimony shows that the witness had no recollection of a conversation with Kinney regarding the patent involved in the underlying dispute in the Federal Action (see, NYSCEF Doc. No. 19 at 4-5). It is unreasonable to expect that defendants should have then attempted to get the witness to impeach his own testimony after claiming that he had no recollection.

Finally, plaintiffs do not dispute that Lipton instructed defendants not to appeal the
verdict against Secured (email exchange, NYSCEF Doc. No. 20). Whether to take an appeal after an adverse judgment, is committed to the client rather than the attorney (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.2[a] [“a lawyer shall abide by a client’s decisions concerning the objectives of representation”]). Moreover, on appeal of the verdict of the court after a bench trial, the court’s findings of fact are subject to a “clear error” standard of review (Atlantic Specialty Ins. Co. v Coastal Envtl. Group Inc., 945 F3d 53, 63 [2d Cir 2019]). Plaintiffs fail to allege that an appeal would have been successful, as they do not allege facts showing that they could have reached the “clear error” standard. Accordingly, they have also failed to demonstrate that the failure to appeal was a proximate cause of any of their damages.”

Kadah v Kadah 2023 NY Slip Op 32889(U) August 18, 2023 Supreme Court, New York County Docket Number: Index No. 152026/2022 Judge: Richard Latin concerns a legal malpractice claim brought in New York concerning legal work performed in a Florida estate. Where should the claim be brought and if brought in NY is it materially inconvenient?

“This action stems from alleged malpractice in the handling of a legal matter relating to
plaintiff’s ownership of International Controls and Measurements Corp. (“ICM”), specifically the alleged failure to file a claim that plaintiff owned 3,160 shares of ICM stock prior to the November 1, 2016 deadline to make such a claim. It is uncontested that no timely claim was filed. However, H&K argue that they were not retained to represent Kadah individually, but rather in his role as Administrator ad litem over the company. Defendant H&K further asserts that ownership of shares in ICM could not be established despite best efforts, due to significant issues with corporate records.”

“Defendant H&K alternatively moves to dismiss plaintiff’s amended complaint pursuant to CPLR 327 by arguing that Florida is the appropriate venue for this action. It is uncontested that the probate proceeding was administered in Florida pursuant to Florida law and that H&K utilized Florida attorneys and maintained their files relating to the case in Florida.”

“Plaintiff argues that Defendant H&K is a multinational law firm with numerous offices,
including the New York office that plaintiff interacted with when he first retained the firm and that the inconvenience of Florida for plaintiff, a New York resident, would render Florida the forum non conveniens. Plaintiff acknowledges that the probate court proceeding was in Florida and under Florida law but argues that the legal work performed during the period in which the malpractice was alleged to have occurred – between July 2016 and November 2016 – took place mostly in New York and submits billing documentation in support. Lastly, plaintiff argues that numerous ICM attorneys, accountant and board members who would be potential witnesses are based in New
York.

After carefully weighing the relevant factors, the critical difference between this case and Rosenberg is that the plaintiff is not a resident or domiciled in Florida which sufficiently adjusts the calculus so as to necessitate a different result (id.). While the probate proceeding was in Florida, the legal work performed during the relevant period largely occurred in New York. Furthermore, it is uncontested that the relevant Florida filing deadline was missed and instead the dispute relates to the nature of the relationship between the parties created by the contractual relationship formed
in New York and the performance of the obligations stemming therefrom – issues which do not require a New York court to apply or interpret Florida law to such an extent that a Florida court would be significantly better positioned to appropriately handle the matter.

Meanwhile the burden on requiring an individual plaintiff who does not have a residence or domicile in Florida to pursue this action in Florida is prejudicial and creates significant practical difficulties. Defendant H&K argues that plaintiff has already demonstrated that he can pursue litigation in Florida due to his conduct in the probate court proceeding and that plaintiff is currently pursuing litigation relating to the probate court pending in Florida, but plaintiff has no alternative than to pursue those actions in Florida. However, this action – unlike those actions – has a considerable and sufficient nexus to New York to pursue the action here and Plaintiff need not be prejudiced by an inconvenient forum where he did not elect to pursue this action simply because he had no choice but to litigate a separate action in that forum. “[U]nless the balance is strongly in favor of the [moving party], the plaintiff’s choice of forum should rarely be disturbed.” (Swaney, 158 AD3d at 438). Here, the balance is not strongly in defendant H&K’s favor and plaintiff’s choice of forum should not be disturbed – particularly where litigating this action in Florida would present a clear and prejudicial burden on plaintiff.”