In a very short decision, Supreme Court’s denial of dismissal was affirmed.  TF Lending, LLC v Mavrides, Moyal, Packman & Sadkin, LLP  2022 NY Slip Op 02946  Decided on May 03, 2022  Appellate Division, First Department stands for the proposition that an attorney working in a firm can be personally liable as well as the firm.

“Defendants do not dispute that the complaint, which asserts a cause of action for legal malpractice, sufficiently alleges that Weinberger, an associate attorney, acted negligently while performing legal services on behalf of defendant law firm. Thus, dismissal of the complaint as against Weinberger is not warranted under the Partnership Law (Partnership Law § 26[c][i]; see e.g. Scarborough v Napoli, Kaiser & Bern, LLP, 63 AD3d 1531, 1532 [4th Dept 2009]) or the common-law doctrine of respondeat superior (see Reliance Ins. Co. v Morris Assoc., 200 AD2d 728, 730 [2d Dept 1994]; Jones v Archibald, 45 AD2d 532, 535 [4th Dept 1974]; accord Restatement [Third] of Agency § 7.01 [2006]). “

Genesis REOC Co., LLC v Poppel  2022 NY Slip Op 02947 Decided on May 03, 2022 Appellate Division, First Department is a case in which Plaintiff’s affidavit was prominently relied upon by the Court in determining that there was  scheme in place rather than an error of judgment.  The affidavit also demonstrated negligent representation.

“Defendants’ argument that the amended complaint does not allege facts sufficient to establish an attorney/client relationship is unavailing, given the affidavits by plaintiffs’ principal, Andrew Stone, submitted in opposition to defendants’ motions, describing the parties’ relationship and defendants’ agreement to represent plaintiffs (see Rushaid v Pictet & Cie, 28 NY3d 316, 327 [2016]). Nor is it dispositive that plaintiffs and the Williams Defendants did not have a retainer agreement with respect to the engagement, given Stone’s explanation of the agreement he had with the Williams Defendants, the advice they gave him, the acts he undertook as part of the Williams Defendants’ engagement, and his reliance on their advice (see Pellegrino v Oppenheimer & Co. Inc., 49 AD3d 94, 99 [1st Dept 2008]).

The amended complaint and the affidavits sufficiently allege negligent representation. Plaintiffs allege that defendants had an undisclosed scheme to advance the interests of nonparty Karim Hutson and his wholly owned entities over plaintiffs’ interests, that they structured their investments in the relevant real estate projects so that the economic benefits of those projects were diverted to Hutson, and that they failed to disclose their conflict of interest while assuring plaintiffs that their financial interests would be protected (see e.g. Yuko Ito v Suzuki, 57 AD3d 205, 207-208 [1st Dept 2008]).

The amended complaint and the affidavits sufficiently allege proximate cause. Plaintiffs allege not simply that defendants made an error in judgment but that they actively and surreptitiously assisted Hutson in diverting funds away from plaintiffs (see Lappin v Greenberg, 34 AD3d 277, 279 [1st Dept 2006]). To the extent defendants rely upon evidence that other factors contributed to the loss, that simply raises an issue of fact not to be determined on the pleadings (Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin, LLC, 46 AD3d 354, 355 [1st Dept 2007]).”

Weis v Rheem, Bell & Freeman, LLP  2022 NY Slip Op 31203(U) April 12, 2022  Supreme Court, New York County Docket Number: Index No. 160796/2020 Judge: Barbara Jaffe is a example of how courts burrow into the “but for” portion of the legal malpractice claim.

“Plaintiffs allege that in or about April 2015, plaintiff Weis was contacted by non-parties Zoltan Kovacs and Peter Kovacs (the Kovacses) who sought investors for the development of
two Manhattan properties. The Kovacses introduced Weis to non-parties Erin Wincomb and Joseph Ferrigno, the principals and/or members of the developer Mavrix Equity Group, Inc.
(Mavrix parties). Over several weeks of negotiations, the Mavrix parties and the Kovacses (the co-investors) agreed with Weis that Weis would provide $5 million in interim financing to
acquire and develop the properties, one at 9 Minetta Street and the other at 30 Thompson Street. Plaintiffs allege that in or about April 2015 and thereafter, defendants were retained by Weis for legal advice and counsel regarding the real estate loans and transactions, and that defendants agreed to represent Weis by, inter alia, structuring the transaction and conducting due diligence concerning the potential investments, borrowers, and/or other parties to the transactions. It is thus alleged that defendants owed Weis a duty to provide reasonable care to protect his interests in connection with the contemplated transactions.

In April and/or May 2015, the co-investors represented to plaintiffs and defendants that they had a net worth of $18 million, including Kovacs-owned real properties in Kings County
and Suffolk County worth more than several million dollars. Plaintiffs complain that defendants failed to conduct due diligence to validate these and other representations made by the coinvestors.

In May 2015, Weis loaned the co-investors $1 million for the Minetta property and $4  million for the Thompson property, at an annual interest rate of 18 percent, in exchange for
equity in the projects, a security interest in the membership interests in the co-investors’ future limited liability companies, their personal guarantees, and affidavits of confessions of judgment signed by them.

The co-investors did not close on the Minetta property transaction and the $1 million loaned was thus forfeited to the seller. Although the Thompson property transaction closed on or
about May 20, 2015, shortly thereafter, the co-investors defaulted on the related loans and payment obligations to plaintiffs. Consequently, in January 2016, plaintiffs invested an
additional $240,000 in the Thompson property. Absent sufficient funds in the operating account that had been controlled by the co-investors, plaintiffs were unable to maintain the loan payments for the Thompson property transaction. ”

“Due allegedly to defendants’ structuring of the Minetta property investment and/or transaction and the Thompson property investment and/or transaction, and defendants’
representation relating to the two actions, Zoltan was able to transfer title of a property in Southampton that was owned by him into a corporate entity, thereby avoiding the enforcement and/or effect of any judgment entered against the co-investors. Defendants told Weis that they were arranging a sheriff’s sale of the Southampton
property which had allegedly been pledged as collateral. Plaintiffs then learned that the  Southampton property had not been pledged as collateral, that defendants had not properly
arranged for a sheriffs sale, and that it was too late to do so. To date, none of the enforcement actions undertaken by defendants have resulted in a recovery.

On or about February 12, 2018, plaintiffs discharged defendants. In January 2019, Wicomb and Ferrigno were convicted of second-degree grand larceny for embezzling plaintiffs’
loan proceeds for these transactions; the convictions were affirmed on appeal. Plaintiffs maintain that due to defendants’ failure to advise, counsel, and represent plaintiffs properly, plaintiffs lost all of the money invested in the two properties and incurred significant additional interest costs, legal fees, and other related expenses arising from enforcement proceedings, interest costs, legal fees. ”

“Here, even if plaintiffs succeed in demonstrating that defendants were negligent and that their negligence was the proximate cause of the loss sustained, defendants offer undisputed documentary evidence of the judgments they obtained for plaintiffs in New York and California (NYSCEF 25, 29), thereby utterly refuting the element pleaded by plaintiffs of actual ascertainable damages. That the judgments have not been satisfied does not render them uncollectible, nor does the present inability to locate collateral foreclose future success. (See Noel ex rel. Deegas v L. Off of Mark E. Feinberg, 43 Misc 3d 1207[A] [Sup Ct, Kings County 2014] [ as plaintiffs time to enforce judgment not yet expired and cause of action premised on alleged fraudulent transfer still viable for time within which to collect judgment plaintiff has not yet sustained ascertainable damages]). Kish v Bd. of Educ. Of the City of New York, 76 NY3d 3 79 (1990) and CPLR 4545 are inapposite.”

 

Anecdotally, we often receive calls in which the potential client tells us that the target attorneys “forced” them into settling.  It seems that the proper question to the potential client is probably whether the “force” was of a “gun to the head” variety, or merely overbearing talk.  Bei Yang v Pagan Law Firm, P.C2022 NY Slip Op 22130 Decided on April 25, 2022 Supreme Court, New York County Kraus, J. seems to be of the overbearing talk variety.

“In this action and in her pleadings, Plaintiff originally alleged many aspects of Defendants’ representation in the prosecution of the personal injury case constituted malpractice. In opposition to Defendants’ motion, Plaintiff has essentially narrowed her allegations to a single claim, that defendants forced her to settle the case by pressuring her, threatening to withdraw as her attorneys if the case did not settle and demanding that she front $30,000.00 in trial costs in [*4]order to move ahead with the trial. Plaintiff asserts these actions essentially forced her to accept the settlement, because she was unable to find new counsel so late in the litigation, and she felt it was clear Defendants did not want to proceed to trial.

Defendants have failed to submit affidavits on the motion denying these claims of coercion. Defendants submit an expert affirmation from Michael Zuller Esq., that incorrectly alleges that there is no claim or allegation that Plaintiff was coerced into accepting the settlement offer. Mr. Zuller opines that Defendants did not depart from the applicable standard of care in prosecuting the underlying action, and that Plaintiff can not show the “but for” proximate causation element in establishing actual non-speculative damages. Mr. Zuller further opines that the underlying action would have been risky to try and cites a significant percentage of medical malpractice trial result in a defense verdict.

Plaintiff’s unopposed allegations regarding the coerced settlement, including the threat by defendants to withdraw from representation and the demand that plaintiff front trial costs in contravention of the parties’ retainer agreement do indeed suggest ethical breaches on the part of defendants.

However, the violation of a disciplinary rule or ethical obligations does not, without more, generate a cause of action for legal malpractice (Guiles v Sismer 35 AD3d 1054, 1056; Weintraub v Phillips, Nizer, Benjamin, Krim & Ballon 172 AD2d 254). To succeed on her legal malpractice claim, Plaintiff would be required to prove that Defendants were negligent in their legal representation, that their negligence was a proximate cause of her loss and that she sustained actual and ascertainable damages (see Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d 925, 926 [2003]).

Plaintiff’s own expert does not dispute Mr. Zuller’s opinion that the action would be risky to try and that a trial may have resulted in a defense verdict or a verdict lower than the settlement amount. In his affirmation, Mr. Bower states:

As such, the issue is not whether the settlement was adequate or reasonable, a fair amount or not, but simply whether the client’s assent was properly obtained. Whether accepting the offer was wise or foolish, and whether the settlement amount is fair or not, is entirely besides the point. In this case, the client’s consent was not voluntarily or freely given. Her assent was only obtained “under the gun.”

… 

Predictably, the defense contends that the settlement amount herein was very favorable to the plaintiff, perhaps more than would be recovered at trial, and certainly more than if the trial went badly. All of that may be true, but all of that is totally irrelevant, nonetheless. The wisdom of the client’s choice is not the legal test that matters herein. All that matters is whether the consent to settle was freely given. If freely given, the settlement is valid and binding, regardless of the amount. If not freely given, the settlement was improperly obtained, regardless of the amount. (Emphasis added). 

While the issue of whether plaintiff would have received a greater amount of money if she went to trial may be “irrelevant” to ethical considerations, it is not irrelevant to the pending malpractice claim. The concession of Plaintiff’s own expert that it is possible that Plaintiff would not have recovered more money or even that Plaintiff may have recovered less money if she proceeded to trial, underscores that Plaintiff will be unable at trial to establish that but for the settlement a trial would have resulted in a verdict in excess of 1.3 million dollars. [See eg Gallet, Dreyer & Berkey, LLP v. Basile, 141 AD3d 405 (2016)(holding summary judgment dismissing [*5]the legal malpractice claim appropriately granted where the asserted damages are vague, unclear, or speculative); Bellinson Law, LLC v Iannucci, 102 AD3d 563 (1st Dept 2013)].

While plaintiff cites to cases where a legal malpractice claim was held viable despite a settlement in the underlying action [Cohen v. Lipsig, 92 A.D.2nd 536 (Second Dept., 1983); Lattimore v. Bergman, 224 A.D.2nd 497 (Second Dept., 1996); Mazzei v. Pokorny, Schrenzel & Pokorny, 125 AD2d 374], these cases are distinguishable as none relate to a claim where the attorneys pressured a client to enter into a settlement, rather the cases cited involve circumstances where the settlement was required due to an error committed by counsel in representation in the underlying action.

Thus even if the ethical breach alleged constituted malpractice, the inability of plaintiff to establish actual and ascertainable damages requires dismissal of the action.”

How deceitful must deceit be to qualify for Judiciary Law § 487 application?  AmTrust N. Am., Inc. v Pavloff  2022 NY Slip Op 02862 Decided on April 28, 2022 Appellate Division, First Department gives us some idea.

“The amended complaint states a cause of action for legal malpractice and the documents submitted do not utterly refute the factual allegations underlying that cause of action (see generally Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; CPLR 3211[a][1], [7]). Dismissal of the cause of action for violation of Judiciary Law § 487(1) is, however, warranted. The amended complaint does not allege, and the documents submitted do not indicate, that defendant Sherri Pavloff’s statement at the August 2017 proceeding in the underlying motor vehicle accident action was untrue. Even assuming Pavloff’s statement was deceitful, it is not sufficiently egregious to support a § 487(1) cause of action (e.g. Mazzocchi v Gilbert, 185 AD3d 438, 438 [1st Dept 2020], lv denied 37 NY3d 908 [2021]; Shawe v Elting, 161 AD3d 585, 588 [1st Dept 2018], lv denied 32 NY3d 907 [2018]).”

The vast number of sibling v. sibling cases involving parental estates should not be surprising, but Altman v DiPreta  2022 NY Slip Op 02774 Decided on April 27, 2022 Appellate Division, Second Department is a prime example of how basic the manipulations can get.

“In 2010, Jeanne Altman (hereinafter Jeanne) executed a durable power of attorney in favor of her two sons, Charles Altman (hereinafter Charles) and Edwin Altman (hereinafter Edwin). Following the deterioration of Jeanne’s mental faculties, Charles and Edwin had disagreements about her care. Charles retained the defendant Richard Slagle, a Connecticut attorney, to represent Jeanne. Charles then commenced a conservatorship proceeding in Connecticut, where Jeanne was then residing. By decree dated December 4, 2012, the Probate Court of Greenwich, Connecticut (hereinafter the Probate Court), appointed the defendant Richard S. DiPreta, a Connecticut attorney, as conservator of Jeanne’s estate, and appointed Charles as conservator of her person.

DiPreta subsequently petitioned the Probate Court for the removal of Charles as conservator of Jeanne’s person. By decree dated August 2, 2013, the Probate Court removed Charles as conservator, finding, inter alia, that Charles had improperly brought Jeanne from Connecticut to New York without court approval, and that Charles failed to act in Jeanne’s best interests.

In February 2014, Charles and Jeanne (hereinafter together the plaintiffs) commenced this action in New York against, among others, DiPreta and DiPreta Law Firm LLC (hereinafter together the DiPreta defendants), and Slagle, inter alia, to recover damages for legal malpractice, tortious interference with contractual relations, and violation of Judiciary Law § 487. In an amended complaint, the plaintiffs alleged, among other things, that the DiPreta defendants and Slagle engaged in “deceit and collusion” as part of a plan to retain control over Jeanne’s assets and withhold payments to Charles. The DiPreta defendants moved, among other things, pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging tortious interference with contractual relations and violation of Judiciary Law § 487 insofar as asserted against them. Slagle separately moved, inter alia, pursuant to CPLR 3211(a)(8) to dismiss the amended complaint insofar as asserted against him for lack of personal jurisdiction, and pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging violation of Judiciary Law § 487 insofar as asserted against him. In an order dated March 24, 2015, the Supreme Court, among other things, granted those branches of the separate motions. Charles appeals.”

“Under Judiciary Law § 487(1), an attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” is liable to the injured party for treble damages. “Judiciary Law § 487 ‘applies to an attorney acting in his or her capacity as an attorney, not to a party who is represented by counsel and who, incidentally, is an attorney'” (Pinkesz Mut. Holdings, LLC v Pinkesz, 198 AD3d 693, 698, quoting Oakes v Muka, 56 AD3d 1057, 1058). Here, the parties’ evidentiary submissions demonstrated that the DiPreta defendants did not act in their capacities as attorneys when they allegedly made deceitful statements. Accordingly, the Supreme Court properly granted that branch of the DiPreta defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging violation of Judiciary Law § 487 insofar as asserted against them by Charles (see Smallwood v Lupoli, 107 AD3d 782, 784; Crown Assoc., Inc. v Zot, LLC, 83 AD3d 765, 768; Oakes v Muka, 56 AD3d at 1058).”

 

Dial Car Inc. v Kordonsky  2022 NY Slip Op 31067(U) March 31, 2022 Supreme Court, Kings County Docket Number: Index No. 521900/2021 Judge: Leon Ruchelsman is a case which has been brought previously and is now in its second amended complaint.  Supreme Court dismissed the claims against the attorneys as too old.

“The Tuch and Cohen defendants have moved pursuant to CPLR §3211 seeking to dismiss the plaintiff’s complaint on the grounds essentially that it does allege any cause of •action and that many of the claims are barred by the applicable statute of limitations.

The plaintiff is a black car livery service catering to high end clients in Brooklyn. The amended complaint alleges that the four members of the board of directors, Michael Kordortsky,
Jeffrey Goldberg, Alex Sulava and Michael Levin as well as their counsel defendant Tuch and Cohen essentially defrauded Dial and its shareholders and committed corporate waste. Specifically, the amended omplaint alleges the defendants looted a voucher savings program design eel as a retirement funds for shareholders. The amended complaint alleges nine causes of action, for fraud, waste and mismanagement; aiding and abetting fraud, conversion, unjust enrichment, compensation recovery, malpractice, disgorgement, breach of fiduciary duty and aiding and abetting a breach of fiduciary duty. A similar lawsuit was filed in 2015 seeking similar reliefs. These motions have now been filed.”

“Concerning the Tuch and Cohen defendants, the amended complaint does not allege any improper conduct engaged in by them at all. Paragraph 73 of the amended complaint states that “on July 6, 2010, GOLDBERG with the assistance of KORDONSKY, ATTORNEYS and specifically, defendant, Roberta Pike, LEVIN and SULAVA, was granted an amendment to his March 31, 2003, employment contract which, included a salary increase, retirement benefits and other various additional pecuniary benefit’ (id) and that such amemdment was done without majority shareholder approval pursuant to the by-laws (see, Amended Complaint, I74). The amended complaint argues that the Tuch and Cohen defendants drafted the by-laws in 2010 and were surely aware of the shareholder approval requirement. However, even if the allegations are true and constitute wrongdoing such wrongs occurred in 2010. It is well settled that legal malpractice causes of actions have a three year statute of limitations (CPLR §214 (6), Schrull v. Weis, 166 AD3d 829, 87 NYS3d 228 [2d Dept., 2018}). The events which give rise to any malpractice claims accrued more than three years before the filing of this action. Further, the remaining causes of action are only directed toward
corporate .officers and directors. There are no allegations the Tuch and Cohen defendants were corporate officers at all.”

 

The facts in Hellman v Jacob  2022 NY Slip Op 31018(U)  March 29, 2022  Supreme Court, New York County  Docket Number: Index No. 156860/2021 Judge: Barbara Jaffe are just too astounding to try to encapsulate.

“Plaintiff alleges that from January of 2008 to December of 2010, a group of investors placed approximately $112 million with a nonparty fraudster and with legal entities owned and
controlled by him. From January 2008 to March 2013, the fraudster ran Ponzi scheme, thereby stealing more than $100 million from various people and entities. A committee of creditors (committee) was thus formed from the group of investors with the goal of recovering the assets from the fraudster and his entities. Defendant Belsky was nominated as the sole member of the committee.

On or about December 21, 2010, the committee engaged lawyer-movants as legal counsel in connection with the Ponzi scheme and recovery of the stolen funds, and a “committee
agreement” was entered into between plaintiff and the other committee members on the one hand, and defendant Shalom Jacob on the other. The December 2010 agreement also provides as follows:
You agree that our sole client will be the Committee and that our representation of the
Committee shall not constitute or include the representation of any member of the
Committee with respect to his, her or its individual interests.

In addition to representing the committee and plaintiff, all three movants represented defendant Cortland Realty Investments, LLC, the investor with the largest stake in the invested funds. Plaintiffs claim is reflected therein as $1,375,000. Approximately $61,458,853 was recovered by lawyer-movants from the entities controlled by the fraudster. Plaintiff alleges that defendants were aware of his claim, that the amount due him included funds invested by others, and that the committee represented by movants “may have also included liabilities of other third-parties as part of the amount associated with each member’s respective liability.” Over the course of almost ten years, plaintiff claims, defendants took many actions on his behalf and on behalf of those who had invested with him, referencing in a footnote eight lawsuits commenced in various jurisdictions by the committee, using his
position to recover funds. Once the funds were recovered, defendants refused to distribute to him the share that he was and is entitled to, which has caused and continues to cause him significant and irreparable harm.

According to plaintiff, the committee has “purportedly” collected and recovered approximately $22,893,674.10, plus non-monetary assets, and on March 25, 2013, “purportedly” entered a judgment against the fraudster and some of his entities in the amount of $66,609,424.74, plus post-judgment interest.

On or about August 31, 2017, defendants notified plaintiff that due to certain adverse proceedings brought against the committee in bankruptcy court, they sought to make interim
distributions or, as an alternative, they proposed a buy-out by Cortland, a committee member and their client. In the buy-out agreement prepared by defendants on Cortland’s behalf, plaintiffs share of the recovery is listed as $697,801.62 with interest at 1.384 percent, whereas the buy-out amount is listed as $290,561. Defendants also indicated in the letter that the committee “had possible exposure” in the bankruptcy proceeding “because of monies it may have received from [the fraudster] as part of an allegedly unlawful and/or fraudulent transfer, which may require [the committee] to reimburse such monies.”

Plaintiff alleges that defendants counseled him to accept the buy-out proposal even though it would bring him a fraction of his share, and informed him that they were unable to
represent him, the committee, and/or Cortland in connection with the proposed buy-out. They thus arranged for another law firm to act as plaintiffs counsel in connection with the buy-out. Unaware that defendants had developed “this furtive scheme” to secure plaintiffs position for pennies on the dollar and in reliance on their advice given their role as trusted counsel, plaintiff agreed to the proposed buy-out.”

“Plaintiff’s characterization of the buy-out agreement as a “farce” that was knowingly designed to conceal the reason for Cortland’s proposal to purchase plaintiff’s claims, which was
to induce plaintiff fraudulently to convey his ownership interest in the recovery to the committee, is bereft of facts supporting such assertions. Thus, the allegations in support of the cause of action for fraud/fraudulent inducement as against lawyer-movants are too conclusory to satisfy the statutory requirement that the circumstances constituting the wrong be stated in detail (CPLR 3016[b ]).

Moreover, plaintiff acknowledges in his complaint that on December 21, 2010, lawyer movants specifically advised him that neither he nor his investors were represented by them, and
that the actions commenced by lawyer-movants were brought on behalf of the committee and not plaintiff. He also fails to dispute that the August 2017 letter and buy-out agreement clearly reflect that by signing the option for the buy-out, plaintiff conveyed his interest in any recovery to Cortland.

Plaintiff nonetheless claims to have justifiably relied on defendants’ alleged deception based on the buy-out agreement, asserting that the agreement was conveyed to him through
lawyer-movants who served as his counsel. Thus, he claims to have reasonably relied on them to his detriment which resulted in injury. Again, having acknowledged that he was informed by movants on December 21, 2010 that they did not represent him, and on August 31, 2017 that they would not represent him individually with respect to the buy-out agreement and that the other law firm would represent him, plaintiff demonstrates that he was not justified in relying on their alleged advice to enter into the buy-out agreement. “

Adams v Pulvers, Pulvers & Thompson, L.L.P.    2022 NY Slip Op 30160(U)
January 19, 2022 Supreme Court, New York County Docket Number: Index No. 154594/2021 holds that while the case was timely filed, it does not adequately say that if the underlying personal injury case had gone forward, plaintiff would have won.

“Here, Plaintiffs malpractice claim is insufficiently pleaded against Defendants because the Complaint fails to set forth any specific facts or submit any proof to establish the “but for”
causation element, i.e., that “but for” Defendants’ alleged negligence, Plaintiff would have prevailed in an action arising from the underlying claim against the City and State of New York, the Metropolitan Transit Authority, and/or Consolidated Edison. There was a notice of claim filed against the City of New York, which held a 50-h hearing, before Defendants were even retained and Plaintiff does not allege whether or how he would have prevailed against the City but for Defendants’ negligence. Further, Plaintiff could have brought an action against Consolidated Edison until March 15, 2020 (see CPLR 214), which is a year after Defendants allegedly told Plaintiff that they failed to bring an action on his behalf.”

In a brisk and unequivocal grant of a CPLR 3211 motion, Justice Borrok makes some sweeping findings of fact in Walk v Kasowitz Benson Torres LLP, 2022 NY Slip Op 50031(U) [74 Misc 3d 1203(A)], Decided on January 20, 2022, Supreme Court, New York.

“Upon the foregoing documents and for the reasons set forth on the record (1.18.22), the motion to dismiss pursuant to CPLR 3211(a)(1) and (7) must be granted. The gravamen of the complaint against Kasowitz Benson Torres LLP and Marc E. Kasowitz (collectively, hereinafter, the Defendants) is that Charlie Walk alleges that he entered into a certain Settlement Agreement (hereinafter defined) without being fully informed by counsel as to the meaning of the Settlement Agreement and his alternatives for not settling such that if he had been fully informed he would have restored his reputation and would have gone on to earn approximately $60 million over the course of the next few years. At its core, Mr. Walk complains that the Defendants did not make certain arguments to Universal Music Group (UMG), his former employer, when they were investigating serious public sexual harassment and assault claims made against him and otherwise advised him to accept the Settlement Agreement which he now thinks was inadequate. The arguments fail. Dismissal is required because the entire premise of this lawsuit is based on a false narrative. The substantial documentary evidence in the record consisting of emails sent by Mr. Walk or letters sent by the Defendants on his behalf is such that the facts are simply not as Mr. Walk alleges.

To wit, the documentary evidence (CPLR 3211[a][1]) unequivocally establishes (i) that [*2]the Defendants did in fact make the very arguments that Mr. Walk asserts were not made to UMG, (ii) that the Defendants were not the only lawyers providing advice to him when he entered the Settlement Agreement, and (iii) that he has failed to state a claim (CPLR 3211[a][7]) because, among other things, his interpretation of his rights under his Employment Agreement (hereinafter defined) is wrong. He was not entitled to his 2017 bonus in the event of a for cause firing by UMG. Additionally, the emails and letters in the record firmly establishes that Mr. Walk was well aware of the very issues that he now feigns a lack of knowledge of and that these very issues were discussed with the Defendants and his other lawyers. Mr. Walk also fails to allege facts which would suggest that he could prove his case within a case and achieve a better result than the Settlement Agreement (Katz v Essner, 136 AD3d 575, 576 [1st Dept 2016]).

Although Mr. Walk may allege today that he wishes that he pursued a different legal strategy, and further contested the many detailed sexual harassment and assault claims made against him, this is not actionable (Brook Plaza Ophthalmology Assoc., P. C. v Fink, Weinberger, Fredman, Berman & Lowell, P. C., 173 AD2d 170, 171 [1st Dept 1991]). His decision can not be said to have been uninformed or based on faulty advice. The fact that he resigned from his employment from the television program The Four: Battle for Stardom prior to hiring the Defendants and in the wake of these detailed allegations against him highlights the speculative failure of his claim against these Defendants. Finally, Mr. Walk’s envious allegation that others accused of misconduct have received more money in their settlements with their employers is simply not a fact leveled against these Defendants that they gave him bad advice to settle based on the specific allegations made against him and the shroud of predatory conduct with which he was cloaked.”