We have long observed that legal malpractice defendants, who must act according to rules devised by attorneys, and are judged by attorneys, enjoy a greater latitude in professional malpractice litigation than, say, doctors, accountants and other professionals. Though essentially anecdotal, the evidence is compelling.  That said, Bei Yang v Pagan Law Firm, P.C.
2022 NY Slip Op 22130 [75 Misc 3d 757]  April 25, 2022 Kraus, J. Supreme Court, New York Count seems to us to be compelling evidence.  There, violations of disciplinary rules were found, yet summary judgment granted against plaintiff.

“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 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 cannot 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 that a significant percentage of medical malpractice trials 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{**75 Misc 3d at 762} 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 Simser, 35 AD3d 1054, 1056 [2006]; Weintraub v Phillips, Nizer, Benjamin, Krim, & Ballon, 172 AD2d 254 [1991]). 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{**75 Misc 3d at 763} 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 e.g. 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 AD2d 536 [2d Dept 1983]; Lattimore v Bergman, 224 AD2d 497 [2d Dept 1996]; Mazzei v Pokorny, Schrenzel & Pokorny, 125 AD2d 374 [1986]), 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 their 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.”

 

Can an associate attorney be sued personally, along with the law firm?  FTF Lending, LLC v Mavrides, Moyal, Packman & Sadkin, LLP
2022 NY Slip Op 02946 [205 AD3d 414],    May 3, 2022  Appellate Division, First Department gives a short lucid answer.

“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)”

Genesis REOC Co., LLC v Poppel  2022 NY Slip Op 02947 [205 AD3d 415]  May 3, 2022  Appellate Division, First Department is the unusual case in which the Appellate Division reads the complaint in a legal malpractice case without unduly constricting the claims.  Here, it finds that the complaint and the affidavit show privity, proximity and potential damage.

“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 LLP, 46 AD3d 354, 355 [1st Dept 2007]).

We reject defendants’ argument that the settlement agreements in a separate action against Hutson negated the element of proximate cause. Plaintiffs’ claims against defendants were expressly excluded from the settlement agreements in the Hutson action (see e.g. Maxwell Partners, L.L.C. v Building Studio, LLP, 32 AD3d 321, 324 [1st Dept 2006]).”

AmTrust N. Am., Inc. v Pavloff  2022 NY Slip Op 02862 (204 AD3d 599]  April 28, 2022 Appellate Division, First Department demonstrates the high bar to a Judiciary Law §487 claim.  Deceit is not enough.  It must be “egregious.”

“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 section 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]).”

 

Markov v Barrows  2022 NY Slip Op 04780 Decided on August 02, 2022 Appellate Division, First Department  could be a law school lesson on the meaning of the “but for” causation required in legal malpractice cases.

“Order, Supreme Court, New York County (Margaret A. Chan, J.), entered April 21, 2020, which, to the extent appealed from as limited by the briefs, granted defendant Michael Barrows, Esq.’s CPLR 3211(a)(7) motion to dismiss the legal malpractice claim, unanimously affirmed, without costs. Order, same court (Frank P. Nervo, J.), entered April 29, 2021, which, to the extent appealed from, denied plaintiff’s motion for leave to amend the complaint, unanimously affirmed, without costs.

This legal malpractice action stems from defendant’s representation of plaintiff in a prior action in which plaintiff sought to recover damages he allegedly sustained after purchasing at auction a particular medal that he asserted was worth far less than his winning bid. Plaintiff alleges that defendant failed to timely sue the proper parties — namely, Stack’s LLC and its auctioneers — leading to the dismissal of the prior action and precluding any recovery by plaintiff for alleged misrepresentations by Stack’s and the auctioneers regarding the materials comprising the medal.

Supreme Court properly dismissed plaintiff’s legal malpractice cause of action in the original complaint because he failed to allege that “but for” defendant’s negligent conduct, he would have prevailed in the underlying action (Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 272 [1st Dept 2004]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). Plaintiff’s citation to a ruling in the underlying action denying dismissal of his fraud claim, among others, did not, without more, show that he would have prevailed in the underlying action had defendant timely commenced it by naming the proper parties in the original complaint (see Sonnenschine v Giacomo, 295 AD2d 287, 287 [1st Dept 2002]).”

“Plaintiff could not have prevailed in the underlying action — and, therefore, cannot prevail in this legal malpractice action (see Warshaw Burnstein Cohen Schlesinger & Kuh, LLP v Longmire, 106 AD3d 536, 536 [1st Dept 2013]) — because plaintiff’s fraud and breach of contract claims against Stack’s and the auctioneers would have been flatly defeated by the various disclaimers and conditions in the terms of sale contained in the auction catalog.

By placing a bid in the auction, plaintiff, a numismatic dealer who buys, sells, and collects Russian coins and medals, acknowledged receipt of the auction catalog and agreed to adhere to the terms of sale (see Terms of Sale ¶¶ 5, 40). Bidders were “encouraged to carefully examine all lots prior to sale,” because the lots would not be shown at the sale (Terms of Sale ¶ 15, see Terms of Sale ¶ 26). Stack’s assumed no liability for the facts stated concerning the items in the auction, except as specified in the terms of sale (Terms of Sale ¶¶ 15, 18[k]; see Terms of Sale ¶ 31 [“Stack’s hereby disclaims all liability for damages, incidental, consequential or otherwise, arising out of or in connection with the sale of any property by Stack’s to purchaser”]). While offering a limited warranty “that any numismatic item sold is authentic (i.e., not counterfeit, that its date or mintmark has not been altered, and that the coin has not been repaired as those terms are used in the trade),” Stack’s made clear that “all other warranties of authenticity of authorship, whether express or implied, [were] disclaimed” (Terms of Sale ¶ 16). Elsewhere in the terms of sale, Stack’s warned bidders (in bold text) that, “[e]xcept as otherwise expressly stated in the Terms of Sale, Stack’s and its agents and employees make no warranties or guaranties or representations, and expressly disclaim all warranties and guaranties and representations, including, without limitation, a warranty of merchantability, in connection with any numismatic properties sold by Stack’s” (Terms of Sale ¶ 18[h]; see Terms of Sale ¶ 18[i] [“All oral and written statements made by Stack’s are statements of opinion only and are not warranties or representations of any kind, unless stated as a specific written warranty, and no employee or agent of Stack’s has authority to vary or alter these Terms of Sale . . .”]).”

Spiegel v Hawco    2022 NY Slip Op 32431(U)  July 21, 2022  Supreme Court, New York County  Docket Number: Index No. 159930/2015  Judge: Shlomo Hagler is a legal malpractice case arising from a landlord-tenant matter which went awry after plaintiff agreed to be bought out of a rent-controlled apartment lease on West Grove Street.  Plaintiff loses, basically, because there were too many hands in the settlement of the landlord-tenant.

“In the Complaint, plaintiff alleges that “plaintiff was pressured into signing said stipulation settlement without being given adequate time, and without having fully read it
through” and that Hawco “pressured [her] to settle the lawsuit rather than go to trial” and ”threatened to withdraw as plaintiff’s counsel, and leave plaintiff without representation, if
plaintiff would not agree to settle the proceeding” (Complaint ,r,r 12-15 [NYSCEF Doc. No. 1]). The Complaint alleges that the Stipulation recovered no·damages for plaintiff and would require her to separately litigate for damages, the $60,000 payment was far less than the legal fees plaintiff incurred in defending the subject lease and that the Stipulation failed to include provisions setting forth for events of default (Id. at ,r,r 18-21 ). Plaintiff further contends that Hawco failed to advise her of the tax ramifications of the Stipulation (Id. at ,r 28). At the time plaintiff’s complaint was filed on September 28, 2015, plaintiff alleges that she had never received payment of the $60,000 provided for in the Stipulation. ”

“Here, defendant has established his prima facie entitlement to judgment as a matter of law on grounds that plaintiffs claims against him for legal malpractice have no merit and his
conduct was not the cause of any actual and ascertainable damages to plaintiff. Defendant presents an Affidavit and the subject Stipulation settling the Housing Court Proceeding, which most significantly, is signed by plaintiff (NYSCEF Doc. No. 46). Furthermore, defendant’s Verified Answer, quotes in full a letter, dated October I, 2012, from defendant to plaintiff
informing plaintiff that as a result of the foregoing Settlement, the work defendant was retained to do was complete and seeking costs and expenses (the “October I Letter”). The October 1 Letter also provides that plaintiff”read the Stipulation of Settlement to [her] Supreme Court attorney during a telephone conversation [she] had with him, while [ she was] in Housing Court and before [she] signed it, and … he made some changes to it and then approved it” (Verified Answer at, 28 [NYSCEF Doc. No. 43].4 In addition, defendant proffers the Judge Wendt Order, wherein Judge Wendt directed the parties to fully comply with the Stipulation settling the Housing Court Proceeding (NYSCEF Doc. No. 47). As such, defendant met his prima facie burden establishing lack of negligence.

Moreover, defendant has established prima facie an absence of proximate cause between his conduct and plaintiffs alleged damages (Global Bus. Inst. v Rivkin Radler LLP, 101 AD3d
651, 651-652 [1 st Dept 2012] [internal quotation and citation omitted]); Von Duerring v Hession & Belco.ff, 71 AD3d 760, 760 [2d Dept 2010]; Carrasco v Pena & Kahn, 48 AD3d 395, 396 [2d Dept 2008]). Given that plaintiff knowingly and with legal assistance from another attorney accepted the terms of the Stipulation, plaintiff’s claims that her damages constituting the failure of the landlord to remit the $60,000 and loss of the value of the leased Apartment could be attributable to defendant’s conduct, are entirely conclusory.

In opposition, plaintiff fails to raise an issue of fact. It is uncontroverted that plaintiff signed the Stipulation. “Since plaintiff was competent to execute the settlement agreement, and
no fraud is alleged, he is responsible for his signature and is bound to read and know what he signed” (Beattie v Brown & Wood, 243 AD2d 395, 395 [1 st Dept 1997]). Plaintiff has also
failed to refute the evidence that before she signed the Stipulation, she consulted with her ‘Supreme Court attorney’ by telephone who purportedly made changes to the Stipulation before it was executed. Plaintiffs allegations that somehow Hawco abandoned her in the middle of the case is belied by the fact that there is no evidence in the record that she responded to his letter of October 1, 2012 informing her that his representation was concluded due to the settlement of the matter. Although plaintiff alleges dissatisfaction with the Stipulation, plaintiff never made a motion or otherwise sought to vacate the Stipulation. However, even had plaintiff sought such relief, she would have been unsuccessful in view of Judge Wendt’s determination on October 12,2012 (NYSCEF Doc. No. 47) with respect to Ween’s charging lien, directing the parties to
comply with the Stipulation.

Plaintiff’s allegations that defendant pressured or coerced her into settling, that she was forced to sign, that defendant induced her into forfeiting her lease and that defendant threatened· that he would withdraw as counsel if plaintiff did not settle are entirely conclusory. Plaintiff failed to particularize such allegations of duress, and it is uncontroverted that she signed the Stipulation and even consulted her ‘Supreme Court attorney’.”

In Provenzano v Cellino & Barnes, P.C. 2022 NY Slip Op 04749 Decided on July 27, 2022 Appellate Division, Second Department we see an illustration of the “no harm-no foul” spirit of legal malpractice.  Sure, an attorney may make a mistake, depart from good practice or fail to explore an avenue of recovery, but if it was doomed from the start (or in hindsight seems doomed to the Court) there will be no successful legal malpractice case.

“On April 19, 2010, the plaintiff, who was the store manager at the Banana Republic store at Woodbury Commons mall on Jericho Turnpike, sustained injuries when a vehicle struck her as she was crossing the street. The plaintiff had finished working for the day, and was walking toward her vehicle in the parking lot. The plaintiff testified that all Woodbury Commons employees were supposed to park in that parking lot, and that the parking lot was also used by customers. To access to the parking lot, the plaintiff had to descend some stairs, which were used by the public to access a bank and a store. The plaintiff was struck by the vehicle while she was in a road used by anyone entering or exiting the mall.

The plaintiff retained the defendant law firm to represent her in a personal injury action against the driver of the car. After the plaintiff became dissatisfied with its representation, she discharged the defendant law firm. Thereafter, the plaintiff applied for Workers’ Compensation benefits. Her Workers’ Compensation claim was denied as time-barred because it was filed more than two years after the accident.

On or about September 11, 2014, the plaintiff commenced this action, alleging that the defendant law firm had committed malpractice because it, among other things, failed to file for Workers’ Compensation benefits on her behalf and misadvised her regarding her right to file a Workers’ Compensation claim. The defendant moved for summary judgment dismissing the complaint and the plaintiff cross-moved for summary judgment on the complaint. The Supreme Court granted the defendant’s motion and denied the plaintiff’s cross motion. The plaintiff appeals.

“‘A plaintiff seeking to recover damages for legal malpractice must prove that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused [*2]the plaintiff to sustain actual and ascertainable damages. A defendant seeking summary judgment dismissing a legal malpractice cause of action has the burden of establishing prima facie that he or she did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages'” (EDJ Realty, Inc. v Siegel, 202 AD3d 1059, 1060, quoting Bakcheva v Law Offs. of Stein & Assoc., 169 AD3d 624, 625). “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; Garcia v Polsky, Shouldice & Rosen, P.C., 161 AD3d 828, 830).

Here, the defendant demonstrated, prima facie, that the plaintiff would not have prevailed in her claim for Workers’ Compensation benefits (see EDJ Realty, Inc. v Siegel, 202 AD3d 1059). The evidence established, prima facie, that the underlying accident was related to a risk shared by the general public, as opposed to a special hazard connected to the plaintiff’s employment (see Matter of Husted v Seneca Steel Serv., 41 NY2d 140, 144; Matter of Johnson v New York City Tr. Auth., 182 AD3d 970, 971; Matter of Brennan v New York State Dept. of Health, 159 AD3d 1250, 1252; Matter of Trotman v New York State Cts., 117 AD3d 1164, 1165; Matter of Littles v New York State Dept. of Corrections, 61 AD3d 1266, 1268; Matter of Cushion v Brooklyn Botanic Garden, 46 AD3d 1095, 1096; cf. Matter of Cadme v FOJP Serv. Corp., 196 AD3d 983, 984). In opposition, the plaintiff failed to raise a triable issue of fact as to whether, inter alia, she was exposed to a special hazard.

Accordingly, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint and denied the plaintiff’s cross motion for summary judgment on the complaint.”

Pruss v AmTrust N. Am. Inc.  2022 NY Slip Op 02884 [204 AD3d 620] April 28, 2022 Appellate Division, First Department  seems to be the story of a settlement offer made in good faith, where the offeror only found out later that its principal lacked the authority to make the offer in the first place.  Was the attorney-offeror fraudulent and did the attorney-offeror violate Judiciary Law § 487?  No.

“The negligent misrepresentation claims should be dismissed because there was no privity or privity-like relationship between plaintiffs and these defendants. “Before a duty can be imposed to use reasonable care in imparting correct information, an allegation of negligent misrepresentation must be based on a ‘special relationship’ between the parties . . . [t]he bond so established must be the functional equivalent of contractual privity” (Delcor Labs. v Cosmair, Inc., 169 AD2d 639, 639-640 [1st Dept 1991], lv dismissed 78 NY2d 952 [1991]; see also Sykes v RFD Third Ave. 1 Assoc., LLC, 15 NY3d 370, 372 [2010]). In this case, the court’s conclusion that defendants owed a duty of care to plaintiffs was not supported by legal authority.

Moreover, an agent for a disclosed principal “will not be personally bound unless there is clear and explicit evidence of the agent’s intention to substitute or superadd his personal liability for, or to, that of his principal” (News Am. Mktg., Inc. v Lepage Bakeries, Inc., 16 AD3d 146, 147 [1st Dept 2005], quoting Savoy Record Co. v Cardinal Export Corp., 15 NY2d 1, 4 [1964]). That did not occur here, where defendants conveyed the settlement offer to plaintiffs and the court in accordance with the instructions of their principal, defendant AmTrust North America, Inc. (AmTrust). Defendants’ statements that AmTrust had conferred them with authority to settle the case for $5 million were accurate, even if the validity of AmTrust’s underlying statements was not.

Plaintiffs’ claims for violation of Judiciary Law § 487 also fail. A violation of this provision “requires a showing of ‘egregious conduct or a chronic and extreme pattern of behavior’ on the part of the defendant attorneys that caused damages” (Facebook, Inc. v DLA Piper LLP [US], 134 AD3d 610, 615 [1st Dept 2015], lv denied 28 NY3d 903 [2016]). There are no such allegations here, and Mr. Kuhn, AmTrust’s claims adjuster, has acknowledged that he made a mistake in extending settlement authority to these defendants. Defendants were entitled to rely upon the direction given to them by AmTrust and had no independent legal duty to plaintiffs to confirm that authority with the conservator. Further, a fair review of Pavloff’s statements at the August 2017 settlement hearing reveal that while evasive they were not untruthful, and in any event do not support a finding of egregious [*2]conduct that would be sufficient to uphold the claim.”

In this odd case, Feng Li v Shih  2022 NY Slip Op 04293  Decided on July 6, 2022  Appellate Division, Second Department  Plaintiff is an attorney who was disbarred in New Jersey and suspended in New York.  He turns around and sues another attorney claiming that the proceedings in New Jersey were malicious, an abuse of process  and intentional infliction of emotional distress.  All the claims fail.

“The plaintiff represented a number of clients in a lawsuit that resulted in a substantial judgment. The proceeds of the judgment were received by the plaintiff and deposited into his trust account. The plaintiff and the clients disagreed as to whether the plaintiff’s legal fees should be calculated pursuant to the terms of the retainer agreement they had signed or pursuant to New York’s contingency fee rules, and as to whether funds collected prior to the plaintiff’s representation of the clients should be included in that calculation as well (see Matter of Feng Li v Knight, 201 AD3d 1048, 1048-1049). Before the fee dispute had been resolved, the plaintiff unilaterally disbursed approximately $1.2 million of the amount collected on behalf of the clients to himself and thereafter used the disputed funds to pay off foreign debts (see Feng Li v Peng, 161 AD3d 823, 824; Feng Li v Peng, 516 BR 26, 32 [Bankr D NJ], affd 610 Fed Appx 126 [3d Cir]). The plaintiff “was subsequently disbarred in New Jersey and suspended from the practice of law in New York for misappropriating the disputed portion of his legal fee” (Feng Li v Peng, 161 AD3d at 824; see Matter of Feng Li, 149 AD3d 238; In re Feng Li, 201 NJ 523, 65 A3d 254). The fee dispute concluded in 2015 when a New Jersey court entered a judgment in favor of the clients and against the plaintiff in the total sum of approximately $1 million.

The plaintiff subsequently commenced this action against the defendant, an attorney who represented the plaintiff’s former clients in a number of actions and proceedings arising out of the fee dispute. The complaint asserted eight causes of action, sounding in malicious prosecution, abuse of process, prima facie tort, and intentional infliction of emotional distress, among other things. The complaint alleged that the plaintiff justifiably disbursed the disputed portion of the fee to himself, and that the defendant, despite knowing this to be true, pursued relief on the clients’ behalf in the New Jersey action that resulted in the money judgment and in two attorney discipline proceedings that resulted in the plaintiff’s disbarment in New Jersey and suspension in New York. The defendant moved, inter alia, pursuant to CPLR 3211(a) to dismiss the complaint. The plaintiff opposed the motion, and separately moved pursuant to CPLR 3025(b) for leave to supplement the complaint by adding a cause of action to recover treble damages under Judiciary Law § 487 and allegations that the defendant falsely accused the plaintiff of misappropriating client funds and misrepresenting the terms of the retainer agreement in communications with a number of courts and other bodies.

In an order dated December 10, 2019, the Supreme Court, inter alia, granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint on the ground that the defendant’s filing of ethics complaints was absolutely privileged (see Wiener v Weintraub, 22 NY2d 330, 331-332). In an order dated December 11, 2019, the court denied the plaintiff’s motion pursuant to CPLR 3025(b) for leave to supplement the complaint. The defendant appeals from both orders. We affirm, albeit for different reasons than those relied upon by the Supreme Court.”

“Nevertheless, the defendant was entitled to dismissal of the entire complaint. “The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v New York Tel. Co., 62 NY2d 494, 500). “‘Collateral estoppel comes into play when four conditions are fulfilled: (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits'” (Wilson v City of New York, 161 AD3d 1212, 1216, quoting Conason v Megan [*2]Holding, LLC, 25 NY3d 1, 17). Here, numerous courts, including this Court, have determined that the plaintiff may not relitigate the merits of the fee dispute with his former clients and the question of whether he misappropriated their funds (see e.g. Matter of Feng Li v Knight, 201 AD3d at 1048-1051; Feng Li v Peng, 161 AD3d at 825-826; Feng Li v Lorenzo, 2016 WL 10679578, *2 [SD NY, No. 16-CV-4092 (CM)], affd on other grounds, 712 Fed Appx 21 [2d Cir]; Feng Li v Peng, 516 BR at 42-48; Peng v Law Off. of Feng Li, 2017 WL 1166454, *6, 2017 NJ Super Unpub LEXIS 800, *15-16 [NJ Super, Docket No. A-3280-14T2]). The plaintiff’s first through fourth causes of action are all renewed attempts to relitigate these issues. Consequently, these causes of action are barred under the doctrine of collateral estoppel.

The plaintiff does not otherwise have a cause of action to recover damages from the defendant. New York does not recognize independent causes of action for punitive damages (see Gershman v Ahmad, 156 AD3d 868, 868) or civil conspiracy (see Palmieri v Perry, Van Etten, Rozanski & Primavera, LLP, 200 AD3d 785, 788), and the plaintiff does not identify an actionable, underlying tort that might otherwise warrant recovery under these causes of action or his aiding and abetting cause of action. Moreover, “‘there is no private right of action against an attorney or law firm for violations of the Code of Professional Responsibility or disciplinary rules'” (Karimian v Karlin, 173 AD3d 614, 616, quoting Weinberg v Sultan, 142 AD3d 767, 769; see DeStaso v Condon Resnick, LLP, 90 AD3d 809, 814).

As for the plaintiff’s motion pursuant to CPLR 3025(b) for leave to supplement the complaint, “[m]otions for leave to amend the pleadings and motions for leave to supplement the pleadings are generally governed by the same standard[ ]” (Maulella v Maulella, 90 AD2d 535, 537; see CPLR 3025[b]). “A party may amend his or her pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just” (CPLR 3025[b]). Leave “‘should be granted where the amendment [or supplement] is neither palpably insufficient nor patently devoid of merit, and any claimed delay in seeking the amendment [or supplement] does not prejudice or surprise the opposing party'” (Ridgewood Sav. Bank v Glickman, 197 AD3d 1189, 1191, quoting American Bldrs. & Contrs. Supply Co., Inc. v US Allegro, Inc., 177 AD3d 836, 838). Here, the proposed supplement to the complaint seeking to add a cause of action under Judiciary Law § 487 was “patently devoid of merit” (McIntosh v Ronit Realty, LLC, 181 AD3d 579, 580; see Kaufman v Moritt Hock & Hamroff, LLP, 192 AD3d 1092, 1092-1093).”

Frydco Capital Group, LLC v Carlton Fields, P.A.  2022 NY Slip Op 02619 [204 AD3d 532] April 21, 2022 Appellate Division, First Department  is a picture of two wholly different stories.  Plaintiff’s story survived a motion to dismiss, only to be vanquished by Defendants’ story on appeal.

“The legal malpractice claims should have been dismissed pursuant to CPLR 3211 (a) (7) on the ground that plaintiffs failed to plead how defendants’ alleged acts or omissions proximately caused plaintiffs to sustain any loss in connection with a Florida real estate transaction (see Pellegrino v File, 291 AD2d 60, 63-64 [1st Dept 2002]).

In addition, the legal malpractice claims should have been dismissed pursuant to CPLR 3211 (a) (1). Defendants submitted documentary evidence, including the purchase agreement for the property and the seller’s partial assignment of its interests in that agreement, that refutes plaintiffs’ allegations that the seller’s alleged breach of the purchase agreement prevented the closing from occurring, resulting in plaintiffs’ loss of the increased value of the property (see Ladera Partners, LLC v Goldberg, Scudieri & Lindenberg, P.C., 157 AD3d 467, 467 [1st Dept 2018]). The purchase agreement between plaintiff Southside and the seller explicitly permitted the seller to engage in a section 1031 transfer, required Southside to cooperate and did not prohibit the seller from assigning its interest as long as it did not allow another party to acquire the property. The assignment agreement between the seller and the assignee clearly bound the assignee to all of the seller’s obligations to plaintiffs. Moreover, the assignment agreement and correspondence from seller’s counsel made clear that it was not the seller who delayed and prevented the closing, but rather, plaintiff Frydco, Southside’s managing member, which did so unilaterally.

Plaintiffs’ new theory of causation, that plaintiffs’ position in prior litigation with the seller was weakened by an unauthorized consent to the assignment signed by Southside’s former manager with defendants’ knowledge, is unpreserved for appellate review as it is raised for the first time on appeal. In any event, this new theory of causation is equally speculative concerning how defendants proximately caused any loss to plaintiffs, who now acknowledge that they elected not to close and to instead seek return of their down payments and other damages from the seller. It is thus insufficient to state a claim for legal malpractice.”