Olshan Frome Wolosky LLP v Kestenbaum 2025 NY Slip Op 31695(U) May 9, 2025 Supreme Court, New York County Docket Number: Index No. 656174/2023 Judge: Lyle E. Frank represents a very common situation in the NY legal malpractice world. Client is involved in expensive legal proceedings, (here, they were both defendants and plaintiffs in legal proceedings), and payments go awry. When client is sued for fees, it responds with a legal malpractice defense. Often, details are threadbare.

“This action arises out of alleged unpaid legal fees. Defendants previously moved to dismiss the complaint; the application was granted in part. Defendants then submitted an answer with counterclaims. Plaintiff (“Olshan”) now moves to dismiss defendants’ counterclaims, and defendants oppose the instant motion. Upon the foregoing documents and after oral argument, plaintiff’s motion to dismiss the counterclaims is granted.
Background
Olshan is a New York limited liability partnership engaged in the practice of law. Defendant Fortis owns and/or controls defendants FPG Maiden Holdings and FPG Maiden Lane2. Defendant Joel Kestenbaum is the president of FPG Maiden Lane, as well as the president and a member of Fortis.

Olshan’s complaint alleges that the fees owed arise from their representation of Defendants in three pending commercial actions in New York County Supreme Court: (1) Valley National Bank, as successor by merger to Bank Leumi USA v. FPG Maiden Lane, LLC et al., Index No. 657252/2020 (the “Foreclosure Action”), in which Olshan appeared on behalf of and represented Fortis, FPG Maiden Lane, Joel Kestenbaum and other related entities; (2) FPG Maiden Lane, LLC et al. v. Bank Leumi USA et al., Index No. 653584/2020 (the “Lender
Liability Action”), in which Olshan appeared on behalf of and represented Fortis, FPG Maiden Lane and Joel Kestenbaum; and (3) MREF REIT Lender 2 LLC v. FPG Maiden Holdings et al., Index No. 653189/2022 (the “Mezz Lender Action”), in which Olshan appeared on behalf of and represented Fortis, FPG Maiden Holdings, FPG Maiden Lane and Joel Kestenbaum, (collectively, the “Actions”).”

“Throughout that time, Olshan alleges that Defendants defaulted on payments multiple times under the payment procedure clause of the Engagement Agreement, but that Olshan had continued representing Defendants because they had promised to pay. The most notable of these promises asserted in the complaint occurred on July 12, 2023, when Regan, acting as Fortis’ General Counsel, informed Olshan that “Louis [Kestenbaum] has approved payment of $425k to fully resolve the open invoices from November through April,” and further set out new guidelines regarding how Defendants’ would handle payments from thereon out.”

“Defendants assert four counterclaims against plaintiff: breach of contract, breach of fiduciary duty, legal malpractice and unjust enrichment. The Court will discuss each counterclaim in turn.
Breach of Contract
To state a claim for breach of contract, a party must allege: (1) the parties entered into a valid agreement, (2) plaintiff performed, (3) defendant failed to perform, and (4) damages. VisionChina Media Inc. v Shareholder Representative Servs., LLC, 109 AD3d 49, 58 [1st Dept [2013]. In support of its breach of contract counterclaim, defendants assert that plaintiffs terminated their representation “prematurely” and unilaterally and did not allow defendants sufficient time to obtain substitute counsel, which resulted in unspecified damages and prejudice
to defendants. Notably, the counterclaim does not allege that defendants have performed pursuant to the contract.
Plaintiff submits the termination email as well as the stipulation of substitution of counsel, as documentary evidence to defeat this claim. Further, plaintiffs cite to the letter submitted by Joel Kestenbaum, in the Mezz Lender Action, to establish that defendants should be estopped from claiming that plaintiff, rather than themselves, and former counsel caused delay in the underlying matters.
Here, the defendants do not contest the use of the email, that undoubtedly terminates plaintiff, as documentary evidence, pursuant to CPLR § 3211 (a)(1), nor do they dispute the emails authenticity. Rather defendants attempt to use the email to support their counterclaims. The Court will not rely on the email as documentary evidence, rather the substitution of counsel stipulation, sufficiently defeat the allegations in defendants’ counterclaims. The stipulations conclusively establish, that contrary to the allegations in the counterclaims, defendants were not
abruptly left without counsel or prejudiced because they lacked a sufficient time to find replacement counsel. To the contrary, the stipulations establish that defendants were not left without counsel and had no need to find replacement counsel. Accordingly, the breach of contract counterclaim is dismissed.”

“Legal Malpractice
“In order to state a cause of action for legal malpractice, the complaint must set forth three elements: the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and actual damages” (Mamoon v Dot Net Inc., 135 AD3d 656, 658 [1st Dept 2016] internal citations omitted).
The counterclaim fails to allege any specific factual negligent conduct by plaintiff. Further, the counterclaim is silent as to what, if any, loss was sustained, and further fails to allege any actual damages. Accordingly, the counterclaim alleging legal malpractice fails to state a viable cause of action.”

It is relatively rare to get a second chance at summary judgment, but in North Flats LLC v Belkin Burden Goldman, LLP 2025 NY Slip Op 31640(U) May 6, 2025 Supreme Court, New York County Docket Number: Index No. 150420/2022 Judge: Richard G. Latin that’s exactly what happened.

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

“In support of its position and in compliance with the First Department’s directive, defendant submits the expert opinion of Lanny R. Alexander, Esq., (Alexander) an attorney with over thirty years of experience, and a former Executive Director/General Counsel for the Loft Board (NYSCEF No. 87, [Alexander Affidavit]). Alexander asserts that defendant did not commit malpractice for several reasons. Of particular relevance, Alexander concludes that it was reasonable for defendant to rely on the architect’s Art 7-B certification. Alexander states it is often necessary for lawyers to rely on the expertise of professional architects. Further, Alexander states that defendant was only made aware of the tenants’ answers, filed in plenary actions, seeking unpaid rent on plaintiff’s behalf, on May 17 after the close of business.Therefore, the deadline to file an extension had passed. While these answers contained an affirmative defense alleging plaintiff was not in compliance with Art 7-B, the pleading was devoid of any factual support. Therefore, even if defendant had received these answers prior to the deadline, the pleading would not have been sufficient to cause the defendant to doubt the validity of the 7-B certification, as bare legal conclusions are insufficient to raise an affirmative defense. As such, Alexander states that defendant had no reason to doubt the validity of the 7-B certification at any point prior to the deadline to file for an extension of the 7-B compliance deadline. Additionally, Alexander states a tenant’s failure to pay rent is insufficient to cause an attorney under these circumstances to be concerned about the validity of a 7-B certification, as a loft tenant’s nonpayment of rent is commonplace and “wholly unremarkable” (Id. at ¶ 31).”

“In opposition, plaintiff offers the expert opinion of Jason M. Frosh, Esq., (Frosh) an attorney with ten years of experience representing owners in Loft Law (NYSCEF No. 111, [Frosh Affidavit]). Frosh contends that defendant was on notice that the Art 7-B certification would be subject to challenge earlier than defendant alleges, allowing defendant time to file an extension. In support of this contention, Frosh provides a copy of the Capone tenant answer filed on May 12, 2021 (NYSCEF No. 114, [Capone Answer]), from one of the plenary actions, and an email between David Frazer (Frazer), Capone’s attorney, and the defendant. The email is specifically marked in capital letters, “FOR SETTLEMENT ONLY”, in which Frazer asks defendant to, “please provide proof [of] Art. 7-B compliance” (NYSCEF No. 116, [Frazer Email]).”

“Frosh asserts, because this answer contains a nearly identical affirmative defense to the other tenant answers alleging plaintiff’s lack of Art 7-B compliance, it would have put defendant on notice and allowed defendant ample time to file an Art 7-B extension. Frosh’s assertion is unavailing, as defendant’s expert Alexander, previously addressed the context and circumstances of the affirmative defense, and that the lack of factual support and specificity of such an affirmative defense would not have caused any attorney to question the architect’s 7-B certification. CPLR 3013 requires that “[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.” Furthermore, unsworn emails that are not authenticated by an affidavit constitute inadmissible hearsay (see AQ Asset Mgt. LLC v Levine, 128 AD3d 620, 621 [1st Dept 2015]). As plaintiff has failed to produce an affidavit authenticating the Frazer email, it will not be considered. While Frosh contends that defendant’s actions were below the standard of care exercised by a reasonable attorney in similar circumstances, particularly within the Loft Law context, an attorneys’ “selection of one among several reasonable courses of action does not constitute malpractice” (Rosner v Paley, 65 NY2d 736, 738 [1985]). Further, an attorney’s error in judgment does not constitute legal malpractice (see Hand v Silberman, 15 AD3d 167, 167 [1st Dept 2005]). As plaintiff has failed to meet its burden of presenting evidence in admissible form sufficient to establish an issue of material fact requiring a trial, that part of defendant’s motion that seeks summary judgment dismissing plaintiff’s complaint is granted.”

“

Rotonde v Stewart Title Ins. Co. 2025 NY Slip Op 50728(U) Decided on May 6, 2025 Supreme Court, Westchester County Jamieson, J. is interesting as it deals with real estate fraud, and legal malpractice, although not regarding this particular dependent. The case also discusses how the fraud statute of limitations and the “discovery” onset are calculated.

“In this case, the verified complaint contains five causes of action. All involve the events leading up to and culminating in the closing of a transaction regarding the Property that occurred in November 2018. Specifically, in the complaint, plaintiff asserts that he “was listed as a Member of Mamaroneck Beach Realty Group, LLC, as established by incorporation documents filed with the New York State Secretary of State on October 25th, 2018;” “Any documents executed by any third party on behalf of Mamaroneck Beach Realty Group, LLC on November 14th, 2018, were fraudulently allowed by Stewart Title and the above defendants;” “Defendant Stewart Title Insurance Company, which insured the transaction . . . failed to verify the ownership of the purchasing LLC, allowing an unauthorized individual to close the transaction, causing significant financial loss, economic harm, and emotional distress for years. . . .;” and “Ms. Dall and Mr. Jonathan Feinsilver, [sic] fraudulently transferred the ownership documents from KJA to AJK overnight through fraud between November 13 and November 14, 2018 with [sic]^[FN2] the knowledge of the Plaintiff. . . . At no point prior to the closing or the day of the closing was Mr. Joseph Rotonde notified via email, phone, or text that this LLC switch was taking place by any of the defendants or his partners including the lake house [sic].”

“In his opposition, plaintiff asserts that his claims are timely, based on several different arguments. First, he asserts that his fraud claims are “timely within six years of the actor [sic] two years from discovery,” and that he only “discovered the fraudulent acts during discovery in the related action (Index No. 53123/2021).” Next, he argues that he was “unable to pursue claims earlier due to serious medical hardship, including a recurrence of cancer in 2019-2020, cancer treatment in 2020-2021, including in 2023 and 2024 [sic] Under CPLR § 208 (Disability Tolling), the statute of limitations is tolled when a litigant suffers from a physical or mental disability that prevents them from timely pursuing legal remedies.” In support of this assertion, he cites one case that does not apply and other cases that simply do not exist.^[FN3] Finally, plaintiff argues that “the COVID-19 pandemic further extended procedural deadlines, as recognized in Executive Order No. 202.8, issued by Governor Cuomo on March 20, 2020, and subsequent orders extending statutory deadlines until November 3, 2020.”

The Court begins with plaintiff’s CPLR § 208 argument. Although plaintiff invokes it to cover a physical disability, the plain language of this section shows that it applies only to “disability because of infancy or insanity.” It is thus irrelevant here, as plaintiff is not an infant, and does not claim insanity.

Nor does the fraud discovery rule assist plaintiff, for two reasons. First, despite the fact that he states that he learned about the alleged fraud during discovery in the related action, plaintiff does not state what he learned and when he learned it. This alone is fatal to plaintiff’s argument that he learned anything. More importantly, however, in a Decision and Order that this Court issued in September 2022 in the prior action (more than two years prior to the commencement of this action) in which the Court granted plaintiff’s motion to amend the complaint to include fraud claims, the Court stated that plaintiff argued that “the parties have substantially completed discovery of all issues existing prior to the proposed amendment.” The Court allowed the amendment because according to plaintiff, it “relies upon the very same underlying facts and transactions that have been at issue from the outset of this action and have been developed in the discovery process in which all parties participated.” Any information that [*3]plaintiff allegedly first learned from the prior action would have been prior to September 2022, which is more than two years prior to the commencement of this action. Accordingly, the discovery rule does not help him.

Turning to plaintiff’s argument that the Executive Orders extended the statutes of limitations, the Court agrees that this is the case. See, e.g., Suber v. Churchill Owners Corp., 228 AD3d 414, 415, 214 N.Y.S.3d 1, 3 (1st Dept. 2024) (“Plaintiff is correct that the pandemic-related executive orders constituted a toll of the applicable statute of limitations.”). However, this only make a difference with any claims that have six-year statutes of limitation; tolling cannot extend statutes of limitations that expired long before plaintiff commenced this action. Murphy v. Harris, 210 AD3d 410, 411, 177 N.Y.S.3d 559, 561 (1st Dept. 2022) (explaining that time remaining on claim continued to run again on November 20, 2020). That is to say, the negligence claim, see Castle Oil Corp. v. Thompson Pension Emp. Plans, Inc., 299 AD2d 513, 514, 750 N.Y.S.2d 629, 631 (2d Dept. 2002), and the tortious interference claim, see Ullmannglass v. Oneida, Ltd., 86 AD3d 827, 829, 927 N.Y.S.2d 702, 705 (3d Dept. 2011), are both time-barred on their face, as these claims expired in 2021 (taking the Executive Order extensions into account).”

“Beginning with the aiding and abetting fraud claim, which has a six-year statute of limitations and is timely, a review of the complaint reveals that it must be dismissed for substantive reasons. First, it is duplicative of the negligence claim. Amid v. Del Col, 223 AD3d 698, 700, 203 N.Y.S.3d 184, 187 (2d Dept. 2024) (claim alleging aiding and abetting fraud “arise[s] from the same facts as the cause of action alleging legal malpractice and are duplicative of that cause of action”); Hoffman v. RSM U.S. LLP, 169 AD3d 522, 523, 94 N.Y.S.3d 265, 267 (1st Dept. 2019) (“To the extent both the malpractice and aiding and abetting fraud claims allege that defendants ignored their professional duties, they are duplicative. To the extent both the malpractice and aiding and abetting fraud claims are based on defendants’ conflicts of interest, they are duplicative. To the extent both claims are based on nondisclosure, they are duplicative.”). For this reason, the aiding and abetting claim must be dismissed.

Second, it should be dismissed because the underlying fraud has not been sufficiently pleaded. Goldberg v. KOSL Bldg. Grp., LLC, 236 AD3d 995 (2d Dept. 2025) (“Since a cause of action alleging aiding and abetting fraud cannot lie without the underlying fraud having been sufficiently pleaded, the Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the third cause of action, alleging aiding and abetting fraud, insofar as asserted against them.”). See also Weinstein v. CohnReznick, LLP, 144 AD3d 1140, 1141, 43 N.Y.S.3d 387, 389 (2d Dept. 2016) (Aiding and abetting fraud claim properly dismissed where it “failed to satisfy the particularity requirements of CPLR 3016”). [*4]Moreover, as plaintiff alleges that he had no attorney-client or fiduciary relationship with movant, he cannot sustain a claim for aiding and abetting fraud against movant under the circumstances alleged in the complaint. See, e.g., Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 NY3d 553, 562 (2009) (“In the absence of a fiduciary relationship, we perceive no legal duty obligating S & K to make affirmative disclosures to plaintiffs under the circumstances of this case.”); King v. George Schonberg & Co., 233 AD2d 242, 243, 650 N.Y.S.2d 107, 108 (1st Dept. 1996) (“in the absence of a confidential or fiduciary relationship between plaintiff and her brother’s attorneys giving rise to a duty of disclosure, the silence of the attorneys did not amount to the substantial assistance that is a required element of aider or abettor liability.”).”

Judiciary Law 487 claims have rocketed in frequency over the past several years, which is ironic as it is a statute which first appeared in England in 1275. Here in Langton v Sussman & Watkins 2025 NY Slip Op 02765
Decided on May 7, 2025 Appellate Division, Second Department the plaintiff was removed from her position as voluntary library trustee and 11 years of litigation followed. Her claims under Judiciary Law 487 were lost.

“In 2012, the plaintiff was appointed as a voluntary library trustee of the Town of Chester Library Board of Trustees (hereinafter the Library Board). In 2014, Maureen Jagos, the director of the Town of Chester Library (hereinafter the library), raised a complaint regarding the plaintiff’s conduct, which resulted in an investigation conducted by Devora Lindeman of the defendant Greenwald Doherty, LLP (hereinafter Greenwald). Following the investigation, Lindeman issued a report containing her findings and recommendations. According to a report dated July 16, 2014 (hereinafter the Lindeman report), Lindeman found that Jagos’s complaints were credible and recommended that the plaintiff be asked to resign or be offered managerial training and that the plaintiff be removed as trustee if she declined to resign or undergo training. In August 2014, the Library Board voted to remove the plaintiff from her position as voluntary library trustee.

The plaintiff subsequently retained the defendant Michael H. Sussman of the defendant Sussman & Watkins (hereinafter together the Sussman defendants) to represent her in an action she commenced in the United States District Court for the Southern District of New York, alleging violations of 42 USC § 1983. The plaintiff commenced that action against (1) the Town of Chester and its Town Supervisor, Alex Jamieson, represented by the defendant Jonathan M. Bernstein of the defendant Goldberg Segalla (hereinafter together the Goldberg defendants), and (2) the Library Board and its President, Teresa Mallon, represented by the defendant David L. Posner of the defendant McCabe & Mack, LLP (hereinafter together the McCabe defendants).

The plaintiff also retained the defendant Neal D. Frishberg of the defendant Fabricant, Lipman, and Frishberg, LLP (hereinafter together the Frishberg defendants), to represent her in an action she commenced in the New York Supreme Court to recover damages for defamation (hereinafter the defamation action). The plaintiff commenced the defamation action against, among others, Jamieson. The plaintiff alleged, inter alia, that Jamieson made false statements to a local newspaper and reporter regarding Lindeman’s findings and that Lindeman did not, in actuality, find that Jagos’s complaint against the plaintiff was credible. The plaintiff subsequently discharged the Frishberg defendants as her counsel in the defamation action and proceeded pro se.

Thereafter, Jamieson and other defendants separately moved, in effect, for summary judgment dismissing the complaint in the defamation action insofar as asserted against each of them. In an affidavit submitted in support of Jamieson’s motion, Lindeman averred, among other things, that the Lindeman report, which accompanied her affidavit and was initialed by her on each page, was authentic. In opposition to Jamieson’s motion, the plaintiff asserted, inter alia, that the Lindeman report was a “forgery” and that an “authentic” report issued by Lindeman existed, which made findings in the plaintiff’s favor. The plaintiff did not submit a copy of the alleged authentic report. In an order dated April 3, 2017, the Supreme Court, among other things, granted the separate motions of Jamieson and other defendants, in effect, for summary judgment dismissing the complaint in the defamation action insofar as asserted against each of them. In that order, the court determined that “[t]he defendants have conclusively established” that Jamieson’s statements regarding the Lindeman report were “an accurate account of the report of the investigation conducted regarding the plaintiff.”

In August 2020, the plaintiff commenced the instant action, inter alia, to recover damages for violation of Judiciary Law § 487 against the Sussman defendants, the Frishberg defendants, the Goldberg defendants, the McCabe defendants, and Greenwald and its partner, Kevin M. Doherty (hereinafter together the Greenwald defendants). The plaintiff alleged, among other things, that the defendants colluded with each other to conceal the alleged authentic version of the Lindeman report and to present a fraudulent report that resulted in the plaintiff’s removal as voluntary library trustee.”

“Pursuant to Judiciary Law § 487, an attorney who is “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 (see Guliyev v Banilov & Assoc., P.C., 221 AD3d 589, 591). “‘A violation of Judiciary Law § 487 requires an intent to deceive'” (id., quoting Moormann v Perini & Hoerger, 65 AD3d 1106, 1108). “‘Allegations regarding an act of deceit or intent to deceive must be stated with particularity'” (Guliyev v Banilov & Assoc., P.C., 221 AD3d at 591, quoting Bill Birds, Inc. v Stein Law Firm, P.C., 164 AD3d 635, 637, affd 25 NY3d 173). Further, “‘an injury to the plaintiff resulting from the alleged deceitful conduct of the defendant attorney is an essential element of a cause of action based on a violation’ of Judiciary Law § 487” (Maroulis v Sari M. Friedman, P.C., 153 AD3d 1250, 1252 [alteration omitted], quoting Rozen v Russ & Russ, P.C., 76 AD3d 965, 968). “Thus, to state a cause of action alleging a violation of Judiciary Law § 487, the plaintiff must ‘plead allegations from which damages attributable to the defendants’ conduct might be reasonably inferred'” (Maroulis v Sari M. Friedman, P.C., 153 AD3d at 1252, quoting Mizuno [*3]v Nunberg, 122 AD3d 594, 595). Here, the plaintiff failed to allege sufficiently specific facts from which it could be reasonably inferred either that the defendants acted with the requisite degree of scienter or that the alleged acts of deceit were the proximate cause of any injury to the plaintiff (see Pinkesz Mut. Holdings, LLC v Pinkesz, 198 AD3d 693, 697-698; Sammy v Haupel, 170 AD3d 1224, 1225).”

Barrett v Sacks & Sacks, LLP 2025 NY Slip Op 02547 Decided on April 29, 2025 Appellate Division, First Department is an example of the “but for” part of the legal malpractice formula. The legal malpractice formula holds that a successful legal malpractice claim shows, (i) departure from good practice; (ii) which proximately causes a bad outcome; (iii) “but for” which there would have been a better outcome; and (iv) ascertainable damages proximately caused.

It’s generally easy to discern and state the “departure” element. It’s harder to demonstrate that but for that departure there would have been a better outcome. In Barrett, plaintiff succeeds.

“This is a legal malpractice action arising from an underlying negligence action, in which plaintiff alleged that she was injured when she tripped and fell on a defective sidewalk. Plaintiff’s negligence action was ultimately dismissed in its entirety. Defendants represented plaintiff in the negligence action. In this legal malpractice action, plaintiff contends that defendants were negligent in incorrectly pleading the location of the accident and failing to file written oppositions to the underlying defendants’ motion for summary judgment.

Supreme Court erred in concluding that plaintiff would have been unable to prove one of the essential elements of the underlying negligence claim, because the defect which allegedly caused her accident was trivial as a matter of law. A defendant moving for summary judgment on the basis that the alleged defect is trivial must “make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses” (Camara v Costco Wholesale Corp., 199 AD3d 509, 509-510 [1st Dept 2021]). There is no “per se rule that a defect must be of a certain minimum height or depth in order to be actionable” (id. at 510). A “holding of triviality must be based on all the specific facts and circumstances of the case, not size alone” (id.). Thus, the “issue is generally a jury question because it is a fact-intensive inquiry” (McCabe v Avalon Bay Communities, Inc., 177 AD3d 487, 489 [1st Dept 2019]).

Even assuming defendants met their initial burden of proof in showing that plaintiff could not prevail on her negligence claim, plaintiff raised an issue of fact in opposition. Plaintiff estimated that the elevation differential of the defect was an inch and a half or “a couple of inches” at the time of her accident, and the adjacent building’s superintendent testified that the elevation was about half an inch to one inch on the day of the accident. Administrative Code of the City of New York requires remediation for sidewalk flags with a height differential of one-half inch or more (see Administrative Code § 19-152[a][4]). Violation of that code is “not per se non-trivial . . . [but] is one factor to consider when deciding the issue of triviality” (Trinidad v Catsimatidis, 190 AD3d 444, 445 [1st Dept 2021]).

Plaintiff’s evidence thus raised an issue of fact as to whether the elevated sidewalk flag was a trivial defect (see id.).”

Xiuwen Qi v Hang & Assoc., PLLC 2025 NY Slip Op 31308(U) April 16, 2025 Supreme Court, New York County Docket Number: Index No. 151821/2023 Judge: Mary V. Rosado is a discussion of “ripeness” and when a legal malpractice case can or cannot be proven.

“Upon the foregoing documents, and after a final submission date of February 14, 2025,
Defendants/Third-Party Plaintiffs Hang & Associates, PLLC, Jian Hang, Jiajing Fan, Shan Zhu,
and Zhangyuxi Wang (collectively “Third-Party Plaintiffs”) motion for seeking leave to renew
partially this Court’s Decision and Order dated September 3, 2024 is denied, without prejudice.”

“Third-Party Plaintiffs seek leave to renew the portion of this Court’s Decision and Order
dismissing their contribution claim asserted against Third-Party Defendants Troy Law PLLC, John
Troy, Tiffany Troy, and Aaron Schweitzer (“Third-Party Defendants”). Third-Party Plaintiffs are being sued by Plaintiff for legal malpractice for allowing his wage and hour dispute to be dismissed
based on their multiple administrative defaults of Court orders (Qi v Famous Sichuan New York
Inc., Index No. 656826/2019 [the “2019 Action”]). Third Party Plaintiffs filed a contribution claim
against Third-Party Defendants, who are representing Plaintiff in a new wage and hour case, which
attempted to restore some of the claims administratively dismissed in the 2019 Action (Qi v
Famous Sichuan New York Inc., et al., 650984/2022 [the “2022 Action”]). In the 2022 Action,
some of Plaintiff’s claims were dismissed based on the statute of limitations after Third-Party
Defendants failed to raise Governor Cuomo’s Executive Orders tolling the statute of limitations
(“Covid-19 toll”) as a defense. Third-Party Plaintiffs theory of contribution is that some of the
damages Plaintiff is seeking from them could have been avoided had Third-Party Defendants
raised the Covid-19 toll.”

“The Court found the contribution claim as it relates to Third-Party Defendants alleged
failure to raise the Covid-19 toll premature and speculative because remedies which could
eliminate the alleged damages remained sub Judice or had not yet been exhausted. A review of the
2022 Action’s docket shows that remains the case: Third-Party Defendants have filed a notice of
appeal regarding the denial of their motion to renew, and there is now sub Judice a motion to
reargue. 1 Just as when the Court originally dismissed the Third-Party Complaint, there are still
unresolved remedies which may eliminate the alleged damages sought in the third-party
contribution claim. Therefore, leave to renew is denied (see Grace v Law, 24 NY3d 203, 210
[2014] [legal malpractice actions premature prior to appellate court or underlying trial court being
given opportunity to rectify unfavorable result]). The denial is without prejudice, as the contribution claim may be reasserted depending on the outcome of the motion to reargue and/or notice of appeal”

This question can have large real world consequences as we see in Park W. Exec. Servs., Inc. v Gallo Vitucci & Klar, LLP 2025 NY Slip Op 31462(U) April 25, 2025 Supreme Court, New York County Docket Number: Index No. 157052/2024 Judge: Paul A. Goetz. In a legal malpractice setting, whether the attorneys “admitted” that a driver was an employee or not is determined not to have matted.

“Plaintiff, Park West Executive Services, (“Park West”) facilitates taxi and limousine drivers to customers in need of transportation (NYSCEF Doc No 1 at ¶ 32). Plaintiffs, United Specialty Insurance Company (“USIC”) and First Mercury Casualty Company (“First Mercury”), are insurance companies who issued policies to First West (id. at 34 – 35). On October 31, 2014, non-party Margaret Rivera, a driver who had a contract with Park West, was involved in a motor vehicle accident (id. at ¶ 42 – 43). As a result of the accident, non-party Ennigier Rivera, suffered injuries and commenced an action for personal injuries in New York State Supreme Court, Bronx County, entitled Ennigier Rivera v. MD. LR. Bhuiyan and Margaret Rivera, under index number 306435/2014 (the “Underlying Action”) (id. at ¶ 44 – 45). Defendants represented Margaret Rivera, Mohammed Bhuiyan (the owner of the car operated by Margaret Rivera), and Park West in the Underlying Action (id. at 46 – 50).

Plaintiffs allege that defendants were negligent in their representation because they the First Department ruled that they admitted that Margaret Rivera was an employee of Park West, thus making them vicariously liable for Margaret Rivera’s negligence. Plaintiffs contend that Margaret Rivera was an independent contractor, and if that argument had successfully been made in the underlying action, then they would not have had to settle that action.”

“Here, plaintiffs’ legal malpractice claim must fail because the damages alleged are purely speculative. Plaintiffs argue that defendants were negligent by, in their motion for summary judgment in the underlying action and the appeal of that decision, admitting that Margaret Rivera was an employee of Park West. In the reply brief submitted by defendants in the Appeal to the Underlying Action, they argue for dismissal of a negligent hiring claim as against Park West, because a negligent hiring claim cannot be maintained against an employer, when the employer
is already liable under the theory of respondeat superior (Ennigier RIVERA, Plaintiff-Respondent, v. Md. Lr. BHUIYAN, Margaret Rivera and Park West Executive Services, Inc., Defendants-Appellants., 2016 WL 11543386, at *12). The First Department ruled that this argument was an admission that Margaret Rivera was an employee of Park West (Rivera v Bhuiyan, 149 AD3d 493, 494 [1st Dept 2017] [“Although Bhuiyan and Park West initially denied in the answer that defendant Rivera was operating the vehicle within the scope of her employment when the accident happened, in their reply affirmation, they concede the issue”]).

However, plaintiffs’ allegations that had defendants not allegedly conceded that Maragaret Rivera [sic] was an employee of Park West, they would not have suffered damages, rely on a conclusory assumption that the courts would have ruled that she was an independent contractor. Defendants note that in subsequent cases, courts have rejected Park West’s argument that its drivers were in fact independent contractors and found them vicariously liable (NYSCEF
Doc No 17)2. Furthermore, while plaintiffs argue that Margaret Rivera signed a contract which labeling her as an independent contractor, such a contract is not dispositive of the issue (Carlson v Am. Intern. Group, Inc., 30 NY3d 288, 301 [2017]). Therefore, plaintiffs’ allegations of proximate cause are too speculative to maintain a legal malpractice action, and the complaint must be dismissed.”

Goldstein v Scott Seidler Family Trust 2025 NY Slip Op 31422(U) April 22, 2025 Supreme Court, New York County Docket Number: Index No. 156268/2021 Judge: Judy H. Kim is a very unusual attorney fee/legal malpractice defense case. It is unusual for the initial highly aggressive procedure, as well as the assuredness with which the Court applies the “intertwined” legal malpractice defense principle.

“On July 1, 2021, plaintiff Doron Zanani commenced a special proceeding, by notice of petition and petition alleging that defendants retained him to represent them in three lawsuits filed in New York State Supreme Court, Kings County, in 2014, 2018, and 2019 (the “Kings County Actions”), but discharged him on June 8, 2021, without cause (NYSCEF Doc No. 1, complaint at ¶¶6, 19, 22, 39, 58). Plaintiff further alleged that he contemporaneously emailed invoices for his services to defendants at various times between December 1, 2015, and June 3, 2021, which defendants received without objection and failed to pay (id. at ¶¶99, 102, 104). The petition asserted claims for breach of contract, unjust enrichment, and quantum meruit and sought a declaratory judgment directing that the first $521,455.03 of any recovery in the Kings County Actions be paid to him (id. at ¶¶89-134).

Defendants interposed an Answer asserting various affirmative defenses and, as pertinent here, counterclaims for legal malpractice and breach of fiduciary duty based upon allegations that defendants informed plaintiff they wanted to settle the Kings County Actions for approximately $2,000,000.00 but plaintiff refused to convey an offer of $1,850,000.00 to them (because he “refused” to settle for less than $4,000,000.00) and, as a result, defendants eventually agreed to a settlement offer of $1,425,000.00 (NYSCEF Doc No. 34, Amended Answer at ¶¶74-78).
In decision and order dated November 4, 2021, the Court (Hon. Frank P. Nervo) denied the petition and dismissed the special proceeding without prejudice on the grounds that, inter alia, plaintiff had an adequate remedy of law in a plenary breach of contract action (NYSCEF Doc No. 77, decision and order). Justice Nervo noted, in passing, that “[t]he petition and answer present issues of fact as to whether petitioner committed malpractice or otherwise failed to render proper services” (id.).
That order was subsequently reversed by the Appellate Division, First Department, which converted the special proceeding to a plenary action, deemed the petition a complaint with respect to plaintiff’s breach of contract and account stated claims, and remanded the matter for further proceedings (NYSCEF Doc No. 82, remittitur).”

“Approximately three week after the Appellate Division issued this decision, and prior to the commencement of discovery, plaintiff filed the instant motion for summary judgment.1 In this motion, plaintiff argues that he has established his prima facie case for account stated and that defendants’ counterclaims should be dismissed because defendants’ Answer does not allege that defendants would have accepted a settlement offer if it had been conveyed to them, a necessary element of a malpractice claim, citing Drasche v Edelman & Edelman, 201 AD3d 434, 435 (1st Dept 2022). Plaintiff also argues that defendants’ assertion that he refused to convey settlement offers between defendants and the other litigants in the Kings County Actions is refuted by emails exchanged between Seidler and Zanani in 2020 and 2021 which, plaintiff asserts, establish that he conveyed a settlement offer of $2,500,000.00 to opposing counsel and relayed a settlement offer of $1,850,000.00 to defendants (see NYSCEF Doc No. 56, 58, 59).”

“The Court first addresses the branch of plaintiff’s motion to dismiss defendants’ second, third, and fourth counterclaims. While the motion is denominated as seeking summary judgment pursuant to CPLR 3212, plaintiff offers arguments pursuant to both CPLR 3211 and 3212, neither of which succeed. Plaintiff’s argument that defendants’ counterclaims are insufficiently pled relies on Drasche v Edelman & Edelman but in that case, the Appellate Division concluded that the complaint was properly dismissed because plaintiff failed to allege that “but for defendants’ alleged negligence, she would have accepted the settlement offer and would not have sustained any damages” (Drasche v Edelman & Edelman, 201 AD3d 434, 435 [1st Dept 2022] [internal citations omitted]) whereas defendants here have alleged that they were prevented from accepting an offer of $1,850,000.00 and eventually settled for $425,000.00 less than that amount.

Neither has plaintiff establishes his entitlement to summary judgment dismissing these counterclaims. As an initial matter, this motion is premature, as it was filed “prior to the preliminary conference or the opportunity of the parties to conduct discovery” (Downey v Local 46 2nd Holding Co., 34 AD3d 318 [1st Dept 2006] citing Bradley v Ibex Constr. LLC, 22 AD3d 380 [1st Dept 2005]; see also Sanchez v City of New York, 43 Misc 3d 1211(A) [Sup Ct, Bronx County 2014]).

Even setting this aside, however, plaintiff has “failed to make a prima facie showing that his representation of defendant met the applicable standard of professional care and/or did not proximately cause any damages” (Glassman v Weinberg, 154 AD3d 407, 409 [1st Dept 2017] [internal citations omitted]).”

“The foregoing mandates the denial of the branch of plaintiff’s motion seeking summary judgment on his account stated claim. It is well-settled that “[i]f a defendant client’s legal malpractice claim is intertwined with a plaintiff law firm’s claim for legal fees, the plaintiff will not be entitled to summary judgment on its account stated claim” (Emery Celli Brinckerhoff & Abady, LLP v Rose, 111 AD3d 453, 454 [1st Dept 2013]) and since the “alleged conduct which forms the basis for the malpractice [counterclaims] occurred during the billing period at issue,” the
account stated claim and malpractice counterclaims here are sufficiently “intertwined” such that summary judgment is inappropriate2 (Reem Contr. v Altschul & Altschul, 2022 NY Slip Op 34430[U], 15 [Sup Ct, NY County 2022] [internal citations omitted]).”