Here, defendants oppose amendment, renew their opposition, and then take an appeal. The appeal fails.

“In May 2016, the plaintiffs commenced this action to recover damages for legal malpractice against the defendant, their former attorneys, who represented the plaintiffs in connection with leasing certain real property located in Manhattan. The plaintiffs amended the complaint in October 2016. In May 2021, the plaintiffs moved pursuant to CPLR 3025(b) for leave to serve a second amended complaint. In an order dated March 31, 2022, the Supreme Court granted the plaintiffs’ motion. Thereafter, the defendant moved for leave to renew its opposition to the plaintiffs’ motion. In an order dated January 26, 2023, the court denied the defendant’s motion. The defendant appeals from both orders.

“‘In the absence of prejudice or surprise resulting directly from the delay in seeking leave, applications to amend or supplement a pleading are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit'” (Toiny, LLC v Rahim, 214 AD3d 1023, 1024 [internal quotation marks omitted], quoting Myung Hwa Hang v Jang, 164 AD3d 803, 804; see CPLR 3025[b]). “The burden of demonstrating prejudice or surprise, or that a proposed amendment is palpably insufficient or patently devoid of merit, falls upon the party opposing the motion” (Ditech Fin., LLC v Khan, 189 AD3d 1360, 1362). “‘A determination whether to grant such leave is within the Supreme Court’s broad discretion, and the exercise of that discretion will not be [*2]lightly disturbed'” (1934 Bedford, LLC v Gutman Weiss, P.C., 219 AD3d 1271, 1272, quoting Gitlin v Chirinkin, 60 AD3d 901, 902).

Here, the record reflects that the proposed amendment was neither palpably insufficient nor patently devoid of merit. Moreover, while the plaintiffs’ motion pursuant to CPLR 3025(b) for leave to serve a second amended complaint was made almost five years after the complaint was first amended, “[m]ere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine” (Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [internal quotation marks omitted]; see Toiny, LLC v Rahim, 214 AD3d at 1024). Accordingly, the Supreme Court did not improvidently exercise its discretion in granting the plaintiffs’ motion (see Bisono v Mist Enters., Inc., 231 AD3d 134; Lennon v 56th & Park [NY] Owner, LLC, 199 AD3d 64, 74).”

Real Estate transactions and litigation take up a major space in the legal malpractice world. Lending Assets LLC v Gerbi 2025 NY Slip Op 31229(U) April 10, 2025 Supreme Court, New York County Docket Number: Index No. 152329/2023 Judge: Judy H. Kim is one such example.

“In this legal malpractice action, plaintiff alleges that on September 10, 2021, it loaned Gold Crescent Moon, LLC $325,000.00 to finance Gold Crescent’s purchase of property located at 5114 SW 153rd Place, Miami, Florida 33185, which loan was to be secured by a mortgage on that property (NYSCEF Doc No. 1, complaint at ,r,r5-6). Plaintiff further alleges that on September 23, 2021, it loaned $975,000.00 to Idea Holdings LLC to fund Idea Holdings’ purchase of property located at 3501 SW 132nd Avenue, Miami, Florida 33027, which loan was also to be secured by a mortgage on that property (id. at if8). Plaintiff alleges that defendants Weltz Kakos Gerbi Wolinetz Volynsky LLP and Gabriel Gerbi, Esq., a partner in that firm, acted as plaintiff’s attorney with respect to these “loan transactions” and had a “non-delegable duty” to obtain lender’s policies insuring the mortgages and “ensure the mortgages against [these properties] were recorded in first lien positions,” but failed to do so, and “obtained forged and fraudulent policies of title insurance from a non-existent ‘title insurance company’ rendering Lending Assets’ mortgages uninsured” (id. at ,r,r9-14). As a result, plaintiff claims, it sustained damages of $1,300,000.00, i.e. the total amount of the two unsecured loans (id. at ,r,r23-31 ). Defendants now move, pursuant to CPLR 321 l(a)(l) and (7), to dismiss the complaint, arguing that no negligence by defendants proximately caused plaintiff’s loss but that documentary evidence establishes that a third party, Apex Title Agency Incorporated, was responsible for insuring and recording the mortgages in question. In connection with this latter argument, defendants submit a complaint filed by plaintiff in the Circuit Court of the Tenth Judicial Circuit of Polk County, Florida against one Dora Ameneiro Martinez (“Martinez”) under case number 2023-CA-000542 (the “Martinez Complaint”)…”

“However, the branch of defendants’ motion to dismiss the complaint pursuant to CPLR 321 l(a)(l) is granted. Pursuant to CPLR 321 l(a)(l), “[d]ismissal is warranted only if the documentary evidence submitted utterly refutes plaintiffs factual allegations and conclusively establishes a defense to the asserted claims as a matter of law” (Amsterdam Hosp. Group, LLC v Marshall-Alan Assoc, Inc., 120 AD3d 431,433 [1st Dept 2014] [internal citations and quotations omitted]). The Martinez Complaint satisfies this standard and mandates the dismissal of this action. “It is well settled that admissions in a pleading may constitute documentary evidence for purposes of a motion to dismiss” (Walker, Truesdell, Roth & Assoc., Inc. v Globeop Fin. Services LLC, 43 Misc 3d 1230(A) [Sup Ct, NY County 2013], affd sub nom. New Greenwich Litig. Tr., LLC v Citco Fund Services (Europe) B. V, 145 AD3d 16 [1st Dept 2016] [internal citations omitted]) and that such a judicial admission “can be a basis for dismissal of the plaintiff’s claim” where it is “unrebutted and refute[ s] an essential element of a plaintiff’s claim” (Jack C. Hirsch, Inc. v Town ofN Hempstead, 177 AD2d 683,684 [2d Dept 1991]). Here, plaintiff’s allegations in the Martinez Complaint’s that it relied upon Apex to act as its title agent and record plaintiff’s mortgages in first position are a judicial admission refuting a central element of plaintiff’s claim in this action, namely that defendants’ representation of plaintiff included recording and insuring the subject mortgages. To the extent plaintiff asserts, in opposition, that the complaint also alleges that defendants breached their duty to plaintiff by failing to “inquire into the bona fides” of Apex, the complaint contains no such allegation or, indeed, any mention of either Martinez or Apex. In light of the foregoing, this matter is dismissed (see Epic Wholesalers and Star Diamonds & Jewelry, Inc. v JP. Morgan Chase Bank, NA., 31 Misc 3d 1237(A) [Sup Ct, Kings County 2011] [“admissions made by plaintiffs in the 2009 action and the bankruptcy court action refute an essential element of their claim in the present action, that the named and intended payee, Prestige, did not receive the funds … “]).”

Kakushadze v Skin Cancer & Aesthetic Surgery, P.C. 2025 NY Slip Op 31149(U) April 3, 2025 Supreme Court, Kings County Docket Number: Index No. 500196/2023 Judge: Ingrid Joseph seems to be (the decision does not discuss representation of plaintiff) the kind of issues that arise in pro-se cases.

“Plaintiff Zurab Kakushadze (“Plaintiff”) commenced this action against Defendants Skin Cancer & Aesthetic Surgery, P.C. (“SCAS”), Irene Vergilis-Kalner (“Vergilis-Kalner”) and Arkady Kalyuzhny (“Kalyuzhny”) ( collectively, “Defendants”), 2 asserting causes of action for ( 1) fraud, (2) violation of New York General Business Law§ 349 (a), (3) violations of New York Judiciary Law§ 487, and (4) a declaratory judgment. 3 The crux of Plaintiff’s action concerns medical records requested from SCAS on July 18, 2022, that were allegedly not provided in electronic form and were incomplete. Defendants move for an order: (i) pursuant to CPLR 3012 (b), dismissing Plaintiffs’ Complaint on the grounds that it was not timely served within 20 days after their Demand for a Verified Complaint; or alternatively, (ii) pursuant to CPLR 3211 (a) (7), dismissing Plaintiff’s causes of action (Mot. Seq. No. 1). Plaintiff opposes the motion.4 The Court will address each prong of Defendants’ motion separately. In their motion seeking dismissal under CPLR 3102 (b ), Defendants concede that SCAS was served with the Summons with Notice through the Secretary of State on January 4, 2023. They assert that on February 3, 2023, SCAS filed a Notice of Appearance and a Demand for a Verified Complaint. While Plaintiff did file a complaint on January 20, 2023, Defendants argue that this was not filed in response to a SCAS’s Demand for a Verified Complaint or in response to the Notice of Appearance. Thus, Defendants aver that Plaintiff did not timely serve his complaint, as required by CPLR 3012 (b). In opposition, Plaintiff argues that the statute is silent as to the deadline to electronically file a complaint. Once SCAS’s counsel consented to e-filing, Plaintiff contends that she was automatically served with the complaint. In addition, Plaintiff argues that he informed counsel, via email on February 3, 2023, that the complaint was previously e-filed and provided her with the relevant NYSCEF document number. In reply, Defendants maintain that Plaintiff did not follow the procedure outlined in CPLR 3012 (b) because the complaint was not served after the written demand was made. As an initial matter, the Court notes that CPLR 3012 (b) provides that the “court upon motion may dismiss the action if service of the complaint is not made” in compliance with this subsection (CPLR 3012 [b] [emphasis added]). Pursuant to CPLR 2001, “the court may permit a mistake, omission, defect or irregularity … to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded” (CPLR 2001). The Court of Appeals advised the following: In deciding whether a defect in service is merely technical, courts must be guided by the principle of notice to the defendant–notice that must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections (Ruffin v Lion Corp., 15 NY3d 578, 582 [201 O] [internal quotation marks and citations omitted]). Here, it is undisputed that Plaintiff’s Verified Complaint was already e-filed at the time SCAS’s counsel field a Notice of Appearance and Demand for Complaint. Plaintiff’s alleged failure to serve the complaint in response to SCAS’s Demand for Complaint “assuming arguendo there was a requirement that plaintiff do so although the complaint was already e-filed, is at worst, the kind of ‘technical, nonprejudicial’ mistake that occurs during the commencement phase of an action, including some aspects of service of process that could be disregarded pursuant to CPLR §2001″ (Hobbins v Linden Ctr. for Nursing & Rehabilitation, 2023 NY Slip Op 32658[U], *4-5 [Sup Ct, Kings County 2023] [emphasis in original]). Accordingly, that branch of Defendants’ motion seeking dismissal under CPLR 3102 (b) is denied.”

“Lastly, the Court addresses that portion of Defendants’ motion seeking to vacate Plaintiff’s third cause of action asserting that Kalyuzhny violated New York Judiciary Law § 487. Under Judiciary Law § 487 (1 ), 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 … forfeits to the party injured treble damages, to be recovered in a civil action” (Judiciary Law § 487 [l]). “Relief pursuant to Judiciary Law § 487 is not lightly given … , and requires a showing of egregious conduct or a chronic and extreme pattern of behavior on the part of the defendant attorneys” (Kaufman v Moritt Hock & Hamroff, LLP, 192 AD3d 1092, 1093 [2d Dept 2021] [internal citations and quotation marks omitted]). “A cause of action alleging a. violation of Judiciary Law § 487 must be pleaded with specificity” (Betz v Blatt, 160 AD3d 696, 698 [2d Dept 2018]). In their motion, Defendants argue that Kalyuzhny is the Practice Manager at SCAS who also happens to be an attorney. Since Kalyuzhny was not acting in his capacity as an attorney, Defendants contend that § 487 does not apply. Even if it did apply, Defendants maintain that this cause of action fails because Plaintiff cannot establish that Kalyuzhny engaged in intentional deceit. In opposition, Plaintiff asserts that he is bringing this cause of action for Kalyuzhny’s acts and fraud in the medical malpractice action as an attorney. In particular, Plaintiff avers that Kalyuzhny acted as an attorney for SCAS before Hall Booth Smith, P.C. was retained by the insurance carrier. According to Plaintiff, in opposing his motion for a default in the medical malpractice action, SCAS claimed that its default was a result of law office failure. Since Hall Booth Smith, P.C. was not retained until after the default motion was filed, Plaintiff asserts that the “law office failure” is by Kalyuzhny. In reply, Defendants argue that Kalyuzhny is not acting as an attorney in the medical malpractice action. With respect to the law office failure, Defendants assert that it relates to administrative actions of the insurance carrier, not Kalyuzhny. Further, Defendants maintain that Plaintiff has not pied facts showing Kalyuzhny was engaged in intentional deceit or an extreme pattern of legal delinquency. Assuming arguendo that Kalyuzhny was acting as SCAS’s attorney during his communications with Plaintiff, the Court finds that Plaintiff failed to plead “sufficient facts to demonstrate an intent to deceive the court or any party” (Schiller v Bender, Burrows and Rosenthal, LLP, 116 AD3d 756, 759 [2d Dept 2014]; Grasso v Guarino, 227 AD3d 872, 873 [2d Dept 2024]).”

Whether other issues will work in the attorney’s favor is a question for summary judgment. In Golden Ins. Co. v Vogrin & Frimet, LLP 2025 NY Slip Op 31103(U) April 4, 2025 Supreme Court, New York County Docket Number: Index No. 162162/2023 Judge: Mary V. Rosado, the court held that failing to raise a controlling precedent is a problem.

“Plaintiff issued a commercial general liability insurance policy (the “Policy”) to non-party Ingrid Home LLC (“Ingrid”). Plaintiff alleges that pursuant to the terms of the Policy, damages for bodily injury were only covered if incurred at a construction project at 356 E. 8th Street, New York, NY 10009 (the “Premises”). On January 14, 2016, Ingrid was notified of an accident on the Premises involving a worker, Luis Alberto Pomboza, (“Pomboza”). On January 20, 2016, Ingrid’s counsel forwarded that letter to Plaintiff and Plaintiff’s claim administrator. On March 4, 2016, Plaintiff’s counsel, denied coverage. On December 21, 2017, Pomboza’s estate commenced a lawsuit against Ingrid and others (the “Underlying Lawsuit”). In January 2018, Ingrid notified Plaintiff of the Complaint, and Plaintiff issued a reservation of rights letter acknowledging its obligation to defend Ingrid subject to the right to disclaim coverage. Subsequently, Plaintiff retained Defendants to prosecute declaratory judgment action seeking a declaration no coverage was owed to Ingrid in the Underlying Lawsuit. The declaratory judgment action was filed on February 10, 2020 (the “Declaratory Judgment Action”). Ingrid asserted as an affirmative defense that Plaintiff failed to comply with § 3420( d)(2). In the Declaratory Judgment Action, Defendants moved for summary judgment on behalf of Plaintiff while Ingrid also moved for summary judgment. Defendants failed to raise precedent holding that risk retention groups are not bound by the requirements of § 3420( d)(2). The complaint was dismissed based on Plaintiff’s alleged failure to comply with § 3420(d)(2). A motion to reconsider was denied because Defendants raised Court of Appeals precedent for the first time on reargument. The Second Circuit affirmed the lower court’s decision. Because the Declaratory Judgment Action failed, Plaintiff settled the Underlying Action for $900,000. Plaintiff now sues Defendants alleging legal malpractice and negligence. In this motion, Vogrin & Frimet moves to dismiss Plaintiff’s Complaint pursuant to CPLR 321 l(a)(l) and (a)(7).”

“Vogrin & Frimet’s motion to dismiss Plaintiff’s legal malpractice claim is denied. The crux of Vogrin & Frimet’ s motion is that Plaintiff fails to allege adequately that Defendants’ failure to raise the operative Court of Appeals case, Nadkos, Inc. v Preferred Contrs. Ins. Co. Risk Retention Group LLC, 34 NY3d 1 (2019), proximately caused the damages. They argue even had Defendants raised Nadkos, Defendants may still have lost based on Ingrid’s other defenses, including waiver and estoppel. However, this argument is contrary to the Southern District of New York’s decision on the motion for summary judgment (NYSCEF Doc. 64). The decisions by the Southern District of New York and the Second Circuit framed the dispositive issue as one of compliance with Insurance Law § 3420( d)(2). Judge Lewis Liman explicitly stated that Plaintiff “failed to provide a timely disclaimer under the New York Insurance Law, and thus may not now issue a disclaimer. This is not a matter of waiver.” On appeal, the Second Circuit’s decision focused solely on timely disclaimer under Insurance Law§ 3420(d)(2) and made no mention of the common law doctrines of waiver and estoppel (see Golden Ins. Co. v Ingrid House LLC, 2022 WL 2165252 at *2-3 [2d Cir. 2022]). Moreover, the Second Circuit explicitly declined to address the application of Nadkos, Inc. v Preferred Contrs. Ins. Co. Risk Retention Group LLC, 34 NY3d 1 (2019) because it was raised for the first time on a motion to reconsider (Golden, supra at *4). For purposes of a pre-answer motion to dismiss, the pleadings and supporting documents show that Plaintiff’s allegations adequately allege proximate cause and do not fall into the realm of mere speculation. While Defendants are welcome to defend proximate cause pursuant to the “case within a case” doctrine (see, e.g. Carasco v Schlesinger, 222 AD3d 476, 477 [1st Dept 2023 ]), which may ultimately be successful on a subsequent motion for summary judgment, at this juncture, Defendants’ arguments are insufficient to win a pre-answer motion to dismiss.”

The words “legal malpractice” are mentioned only in passing, yet Medical Supply of NY Corp. v State Farm Mut. Auto. Ins. Co. 2025 NY Slip Op 50412(U) Decided on April 1, 2025 Civil Court Of The City Of New York, Kings County Roper, J. is a fascinating analysis of what is a signature. The notary (also an attorney) wrote “February” on the notary signature line rather than his name. Still a good notarization?

“Plaintiff proffered an affidavit, hereinafter referred to as Kuperman Affidavit, as a corroborating exhibit in opposition to Defendant’s Motion for Summary Judgment in a No-Fault case. The Kuperman Affidavit was offered to attest that all verification requests were timely responded to in rebuttal upon the shifting of the burden to Plaintiff to establish a triable issue of fact defeating Defendant’s judgment as a matter of law. Defendant did not object to the admissibility of the Kuperman Affidavit in its Reply to Plaintiff’s opposition. Rather, Defendant exhaustively and substantively argued against the contents and statements contained therein as sworn under oath truths. Defendant exhaustively availed itself of its full and fair opportunity to challenge the Kuperman Affidavit. However, it was at oral argument where Defendant first objected to the Kuperman Affidavit as being defective in form and thus inadmissible. The notarial acknowledgment contained the proper statutory stamp and statutory language dated 4th Day of February 2021 (CPLR 2106 pre — 1/1/2024 Amendment). Defendant argued however, [*2]
that the signature line above “Notary Public” written in script clearly and unequivocally failed to bear the notary’s signature and rather upon which was written the word “February” (Kuperman Affidavit, Plaintiff’s Exhibit A NYSCEF #14). Defendant therefore argued that the Kuperman Affidavit was inadmissible and could not be considered in the decision-making analysis since it was not duly signed with the name of the notary. Plaintiff counsel conducting its oral argument was the named notary public on the notarial stamp. Plaintiff did not argue that Defendant had waived its right to object to the form of the Kuperman Affidavit pursuant to CPLR 2001. Nor did Plaintiff argue that it was a Scrivener’s error to be disregarded as a mere technical defect or curable upon application for leave of Court to correct (CPLR 2001; KSP Constr., LLC v LV Prop. Two, LLC, 224 AD3d 58, 60 [1st Dept 2024]). Rather, Plaintiff’s counsel countered that the written “February” in and of itself is his written signature. Plaintiff’s counsel further stated that he is the attorney at law notary public who signed the Kuperman Affidavit as “February”, which is his signature.^[FN1] Succinctly, Plaintiff’s counsel as the notary public argues that his signature is whatever he says it is and he is stating that he handwrote in script “February” above the notary public line and it is his signature thereby rendering the Kuperman Affidavit not defective and therefore admissible. This Court therefore ordered memoranda of law, inter alia, on the Question: What is a signature?”

“The quite ordinary task of signing with a uniquely scripted flourish of an individualized signature ^[FN2] , whether for the pleasantries of a thank you note, the solemnity of a Will, or the gravitas of legally binding documents in commerce, is generally taken for granted until consequences of its unlawful reproduction. From its ancient beginnings, methods of individualized personal identification and authentication had taken many forms.^[FN3] However, archeologically the oldest first known signature in the form of a stamped name on a clay tablet [*3]by the signatory ^[FN4] was in 3000BC. Although the scripted signature had been in use for centuries, it was legally codified into English law in 1677 by the enactment of the Statute of Frauds, which was also adopted by the American colonies at the time. Thereby mandating enforceable contracts shall be in writing and bear the signature ^[FN5] of the party to be legally bound as validation of the obligations contained therein. The signature has been defined as: “1a: the act of signing one’s name to something; 1b: the name of a person written with his or her own hand;”^[FN6] “The term signature includes any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing.” (NY CLS Gen Const § 46). “A signature is made by use of any name, including any trade or assumed name, upon an instrument, or by any word or mark used in lieu of a written signature” (NY CLS UCC § 3-401[2]). Although having its origins in ancient times and still recognized for the untrained, ill, or disabled is the signature by mark, “an indication usually in the presence of witnesses by a distinctive sign or mark (such as an X) of acquiescence in or assent to the content of a document by one unable to write”^[FN7] “The most important feature of a signature is that it reflect the intent of the signatory (People v Rodriguez, 50 Misc 3d 1223[A], 2016 NY Slip Op 50248[U] [Crim Ct, Queens County 2016], citing People v Lo Pinto, 27 AD2d 63 [3d Dept 1966]). To that end, courts have routinely upheld various forms of markings as a valid signature” (id. citing In re Mack’s Will, 21 AD2d 205 [3d Dept 1964] [it is immaterial how a person signs his name or adopts his signature); Mohawk Airlines, Inc. v Peach, 81 Misc 2d 211 [Sup Ct, Oneida County 1974] [typewritten initials qualify as a signature]; Brooklyn City R.R. Co. v City of New York, 139 Misc. 691, 248 NYS 196 [1930] [printed, typewritten or lithographed signature held valid so long as adopted as such).

Although the intent of the principal signatory to the substance of the document may be an element as to whether an adopted marking is indeed the signature of the principal signatory, not [*4]so for the notary public. The probing into the intent of the notary public’s signature in authenticating the signature of the principal signatory is antithetical to the legislative purpose of the notary public laws. The Notary public laws’ legislative purpose is to provide certitude of authentication by a governmental official licensed notary public. Although New York Law states that the notary stamp as the official statement of authority is required to include the name in black ink, it does not specifically state that a notary’s signature must be the name of the notary public, nor shall it be as affixed upon its oath of office as filed in the county clerk’s office. However, the “American Association of Notaries always recommends using your official, handwritten signature, exactly as it appears on your oath of office.”^[FN8] Thus for certitude of authentication as well as for an enhanced fraud deterrent, the notary public’s signature, whatever form it may take should be consistent with the signature as affixed upon the oath of office filed with the licensing county clerk’s office as an industry standard.^[FN9]“

“Nevertheless, such a defect in form is not fatal and may be rehabilitated within the discretion of the court. It has been held that where the notarial signature was omitted from a document it is considered a technical defect, where the defect is not jurisdictional in nature and where there is no undue nor substantial prejudice to a substantial right, then said defect may be disregarded or curable by subsequent affidavit: “Contrary to the defendants’ contention, the Supreme Court properly considered the expert affidavit submitted by the plaintiffs on that issue, since the notary’s failure to sign the jurat was a technical defect which could be disregarded in the absence of substantial prejudice to the defendants” (see CPLR 2001; Carter v Grenadier Realty, 83 AD3d 640, 642 [2d Dept 2011]) citing Baluchinsky v General Motors Corp., 248 AD2d 574, 575, 670 NYS2d 536 [1998]; Supreme Automotive Mfg. Corp. v Continental Cas. Co., 97 AD2d 700, 700, 468 NYS2d 125 [1983]). “[T]he court disregarded Ms. Kim’s affidavit because of two technical defects: (1) the notary’s signature on the affidavit was illegible; and (2) there is no indication what date in April 1998 the document was notarized” (Seoulbank, NY Agency v D&J Export & Import Corp., 270 AD2d 193, 194 [1st Dept 2000]) citing Baluchinsky v GMC, 248 AD2d 574, 575 [2d Dept 1998]; Supreme Auto. Mfg. Corp. v Cont. Cas. Co., 97 AD2d 700 [1st Dept 1983]; see also, Pasqualini v Tedesco, 248 AD2d 604 [2d Dept 1998]; Lane Crawford Jewelry Ctr. v Han, 222 AD2d 214 [1st Dept 1995]). “Given the lack of prejudice to a substantial right of the defendant, the Supreme Court should have disregarded the defect in the affidavit of the plaintiff’s expert and should have considered the affidavit in opposition to the defendant’s motion (see, CPLR 2001; Baluchinsky at 575, citing Supreme Automotive; see also, [*6]Lauer v Rapp, 190 AD2d 778 [2d Dept 1993]). “[T]he single defect in the search warrant application is that the jurat was not signed. The jurat is, however, ‘simply evidence of the fact that the oath was properly taken before a duly authorized officer. It is no part of the oath’, and its absence is a defect curable by subsequent affidavits or testimony” (People v Zimmer, 112 AD2d 500, 501 [3d Dept 1985], citing People ex rel. Fifth Ave. & 37th St. Corp. v Miller, 261 AD 550 [1st Dept 1941]; see, Supreme Automotive Mfg. Corp. v Continental Cas. Co., 97 AD2d 700). “We reject plaintiff’s contention that Supreme Court erred in permitting defendant owners to correct, in reply, the defects in Kellam’s original affidavit neither signed nor notarized; however, defendant owners submitted a signed and notarized affidavit from Kellam in reply” (KSP Constr., LLC v LV Prop. Two, LLC, 224 AD3d 58, 66-67 [1st Dept 2024]). “The notary’s failure to sign the investigator’s affidavit is the type of defect which a court may permit to be corrected upon such terms as are just or, if a substantial right of a party is not prejudiced, disregard” (CPLR 2001; Supreme Automotive at 700 citing People ex rel. Fifth Ave. & 37th St. Corp. at 553-554). Herein, Defendant duly availed itself of the opportunity to full and fair exhaustive challenge to the Kuperman Affidavit in its Reply yet failed to object as to its inadmissibility in its form of notarization and therefore it cannot be found that Defendant is unduly prejudiced by its consideration. Moreover, it is found that Defendant has not been deprived of a substantial right and therefore further not prejudiced, such that this defect in the notarial signature is held as disregarded. Further, Defendant waived its right to object to the defect in form pursuant to CPLR § 2001. The Kuperman Affidavit is hereby ruled admissible and is being considered. Defendants have satisfied its burden for judgment as a matter of law. However, upon the shifting of the burden, Plaintiff has satisfied its burden in rebuttal establishing a scintilla of a triable issue of fact as to the Outstanding Verification Requests.

For the foregoing reasons, the answer to the Question as to what is a signature? A signature is whatever the signatory says it is. However, a notarial signature must be consistent with the signature affixed upon the oath of office filed with the licensing county clerk’s office.”

Link Motion Inc. v DLA Piper LLP (US) 2025 NY Slip Op 30568(U) February 14, 2025 Supreme Court, New York County Docket Number: Index No. 653322/2022 Judge: Andrew Borrok has an unusual opening line stating that the only question really before the court is whether to sanction plaintiff or not.

“Upon the foregoing documents as discussed on the record (trs. 2.6.25, 2.14.25) and for the reasons set forth below, the question is not whether DLA Piper LLP (US) and Caryn G. Schechtman (collectively, DLA)’s motion (Mtn. Seq. No. 003) to dismiss the Amended
Complaint (the AC; NYSCEF Doc. No. 29) should be GRANTED. There is no question that
under New York law, it must be. The crucial issue is only whether the branch of DLA’s motion (Mtn. Seq. No. 004) seeking sanctions against Link Motion Inc. (Link Motion) under Rule 130-1.1 should be granted. Two federal jurists have answered this question affirmatively under Rule 11. Upon further review after oral argument and following the additional questions asked of Link Motion (tr. 2.14.25), this Court is compelled to grant the branch of the motion seeking reasonable attorney’s fees and costs in having to defend this litigation. Simply put, it would be an improvident exercise of discretion not to award sanctions under the circumstances (see Ray v Ray, 232 AD3d 497, 499 [1st Dept 2024]).”

“Plaintiff filed this legal-malpractice, shareholder-derivative complaint, on behalf
of Link Motion Inc. (“Link Motion”), on December 20, 2021. See ECF No. 1
(“Compl.”) ¶¶ 1-2. The legal-malpractice allegations in the Complaint relate to
conduct by Defendants that occurred in a separate lawsuit filed by Wayne Baliga
against Link Motion and several of its officers and directors, including Dr.
Vincent Wenyong Shi (“Shi”). See ECF No. 1 ¶¶ 1-2, No. 18-CV-11642.
Baliga commenced his suit on December 13, 2018, alleging that Shi and others
were looting the company of its most valuable assets and seeking the appointment of an independent receiver to prevent further dissipation of the company’s
assets. Id. ¶¶ 15-22, 31, 37. That same day, Baliga notified Schechtman and DLA
Piper via e-mail of the filing of the complaint and of Baliga’s intent to file an
Order to Show Cause (“OSC”) the next day, seeking a Temporary Restraining
Order (“TRO”). See ECF No. 37-1; Compl. ¶ 50. On December 13, Schechtman
forwarded the e-mail from Baliga’s counsel to Shi and another Link Motion
director, asking them to “[p]lease instruct DLA if you would like us to respond.”
ECF No. 37-1 at 2. Schechtman also stated that they “should have a call
immediately to discuss—as action will be taking place tomorrow,” and she added
that “DLA has still not received a retainer so we would need to receive that as
well.” Id. Later that same day, Schechtman followed up, asking Shi, “[d]id you
see the lawsuit that was filed. They are going into court in 12 hours to get a
restraining order against the company.” ECF No. 37-2 at 5. The next day,
December 14, Schechtman asked Dr. Shi, “Do you want me to send an
associate?” Id. at 4. Shi responded, “OK, thanks.” Id. Schechtman subsequently
told Shi in an e-mail that DLA Piper would “send an associate to Court in 12
hours to advise the Court that we have received no instruction from the Company
due to the time difference and language barriers. It is possible that the Court will
grant the application anyway.” See ECF No. 37-3 at 2. Schechtman added, “How
would you like us to handle?” Id.
On December 14, Baliga filed an OSC, seeking a TRO. See ECF No. 7, No. 18-
CV-11642; see also Compl. ¶ 48. Defendants appeared on behalf of Link Motion
at the hearing before the Court. Compl. ¶¶ 52, 58. On December 14, the Court
entered a TRO, restraining and enjoining Link Motion, Dr. Shi, and the other
defendants, from liquidating, transferring, or dissipating any assets of the
company. ECF No. 7, No. 18-CV-11642.”

[Many additional facts and events are omitted here for lack of space, but can be reviewed in the linked case]

“Defendants are correct that sanctions under Rule 11 are appropriate here. In
commencing the instant action, neither Plaintiff nor its counsel could have
reasonably believed that the allegations in the Complaint—concerning Link
Motion’s purported inability to transfer the FL Mobile shares because of the
appointment of the Receiver—had evidentiary support. Likewise, Plaintiff’s
legal-malpractice claims suffers from multiple deficiencies that viewed
collectively should have led counsel to conclude that the claim had no chance of
success. Finally, Defendants raised all of these grounds in a letter to Plaintiff’s
counsel on March 7, 2022. See ECF No. 16. Plaintiff nevertheless declined to voluntarily withdraw the action until six months later, in September
2022, see ECF No. 22, but only after Plaintiff’s counsel filed a similar lawsuit,
this time on behalf of Link Motion, against Defendants in state court. See ECF
No. 1, No. 22-CV-8313. Then, after the direct legal-malpractice claim by Link
Motion was dismissed with prejudice by Judge Marrero, Plaintiff baselessly
argued that it should be permitted to withdraw its voluntary dismissal of this
action and amend the Complaint. Simply put, Plaintiff’s decision to continue
pursuing this legal-malpractice claim against Defendants is objectively
unreasonable and can only be viewed as an attempt to harass Defendants and
cause reputational harm.”

In Stumacher v Medical Liab. Mut. Ins. Co. 2025 NY Slip Op 31014(U) March 31, 2025 Supreme Court, New York County Docket Number: Index No. 157477/2024 Judge: Judith N. McMahon, one of three physicians sues for bad faith by his insurance carrier and legal malpractice by his defense attorney.

Three physicians are represented by one law firm in a medical malpractice case, with MLMIC as the sole insurer. The case could have been settled within the policy limits, but the law firm and MLMIC refused to settle. Instead of settling within the policy limits, a verdict for 105 Million ensued. Is there a bad faith or legal malpractice claim here?

“Upon the foregoing documents, the defendants’ pre-answer CPLR 3211 (a) motions to dismiss portions’ of plaintiff’s complaint, as made by the defendant MLMIC Insurance Company, formerly known and sued herein as Medical Liability Mutual Insurance Company (hereinafter “MLMIC”) (Motion Seq. No. 001) and the defendants, Marshall Dennehey Warner Coleman & Goggin a/k/a Marshall Dennehey, P.C. (hereinafter “Marshall Dennehey”) and Kevin Ryan (hereinafter “Attorney Ryan”), are denied.”

“In his 29-page four count Complaint (see NYSCEF Doc. No. 6) Dr. Richard Stumacher, (one of several defendant physicians in an underlying medical malpractice case entitleKeimoneia Redish v. Darryl Adler, et., al., Supreme Court, Bronx County, Index No: 310294/2011 ), sets forth causes of action against his medical malpractice liability carrier, MLMIC, for: (1) acting in bad faith by, inter alia, assigning a single law firm to represent Dr. Stumacher and two other physicians–with competing interests–and failing to settle the underlying Redish case within Dr. Stumacher’s policy limits (“First” Cause of Action); (2) breaching its contractual covenant of good faith and fair dealing (“Second” Cause of Action); (3) punitive damages in the amount of$20,000,000.00 (TWENTY MILLION DOLLARS) for “placing its own business and financial interests in conducting bad faith insurance claims practices over and above the financial and business interests of millions of claimants injured by MLMIC insureds nationwide … “(“Third” Cause of Action; see NYSCEF Doc. No. 6 para 103) and, as against the remaining defendants Marshall Dennehy and Attorney Ryan, for (4) legal malpractice in their representation of Dr. Stumacher during the Redish trial (“Fourth” Cause of Action). It is undisputed that the plaintiff, Keimonieia Redish, was hospitalized at St. Barnabas Hospital from December 4, 2010, through January 25, 2011, for treatment of severe asthma. During her stay, where she received care from several physicians including MLMIC insureds Darryl Adler, M.D., Ronald Ciubotaru, M.D., and Dr. Stumacher2, Mrs. Redish suffered a neurological insult resulting in brain damage, confinement to a wheelchair, and difficulty speaking and communicating. On April 12, 2019, a jury returned a verdict in Redish’s favor for $60 MILLION dollars for past pain and suffering, $30 MILLION dollars for future pain and suffering, and $15,100,000.00 in economic damages. The pain and suffering award was reduced to $10 MILLION on appeal, and the present value of the judgment, as of the date of entry, is $22,926,519.82 with statutory interest running from January 23, 2020. The jury held Dr. Stumacher 25% at fault for Mrs. Redish’s injuries.”

“Dr. Stumacher alleges that, unbeknownst to him, on or about April 3, 2019, Redish’s counsel submitted a written demand to MLMIC and Marshall Dennehy offering to settle all claims against Dr. Stumacher for his $2.3 million dollar policy limits, that MLMIC failed to offer its $1 .3 million primary policy limits (and accordingly, did not trigger the excess carrier’s obligation), and that as a result, Dr. Stumacher was exposed to a judgment far in excess of his policy limits, for which he remains jointly and severally liable.”

“In support of the CPLR 321 l(a)(l) branch of its motion, movants [Attorneys] argue that “undisputed documentary evidence” demonstrates that Marshall Dem1ehey repeatedly provided Dr. Stumacher with timely and comprehensive reporting on exposure risks, settlement developments, and analysis of the strategic decision to proceed with joint representation. These unauthenticated documents, entitled “Memo to File,” are attached as exhibits F through H to the motion. Movants further maintain, in support of dismissal under CPLR 3211 (a)(7), that plaintiffs theory of proximate causation is impermissibly speculative and fails as a matter of law, since a potential for settlement within policy limits depended on the uncontrolled conduct of the codefendant physicians and St. Barnabas Hospital. In opposition, plaintiff is emphatic that he has set forth a cognizable cause of action sounding in legal malpractice against Marshall and Dennehey and Attorney Ryan by alleging, inter alia, (1) that Marshall and Dennehey improperly represented Dr. Stumacher and the other MLMIC insured physicians, who were not united in interest, for the firm’s own financial gain; (2) that Marshall and Dennehey failed to inform Dr. Stumacher that he had the right to retain independent counsel at MLMIC’s expense, and (3) that the firm failed to inform Dr. Stumacher of and failed to respond to the bad faith statement tendered by Mrs. Redish’s counsel toward the end of the underlying trial. Motion Seq. No. 002 is likewise denied. Here, there is no documentary evidence such as a general release or an agreement to arbitrate that would be evidence to dismiss the complaint under CPLR 3211 (a) (1). Evidence recognized under the law. must be in admissible form and properly authenticated (Doe v. Intercontinental Hotels Group, P LLC 193 AD3d 410 [1 st Dept. 2021 ]). Plaintiffs may amplify these allegations in a bill of paiticulars (see JG v. Goldfinger, 161 AD3d 640, 641 [1st Dept. 2018]). Plaintiff argues that defendants are attempting to improperly and prematurely move for summary judgment before issue has joined and before discovery has ensued, when all that is necessary at this pre-discovery stage to defeat a 3211 a motion is for the plaintiff to state a cognizable cause of action Movants’ attempt to have the complaint dismissed at this stage for failure to prove proximate cause is not ripe for discussion at this juncture.”

In 99th Ave. Holdings, LLC v Schatz 2025 NY Slip Op 30979(U) March 13, 2025 Supreme Court, New York County Docket Number: Index No. 151688/2024 Judge: Emily Morales-Minerva defendant attorney argued that he was the transactional attorney for negotiations by a business owner with the landlord, and that once trial counsel was hired, he was no longer subject to “continuing representation. On this motion, he lost the argument. That may eventually change on summary judgment.

“On or about April 20, 2015, plaintiff, 99TH AVENUE HOLDINGS, LLC (plaintiff), entered into a Lease Agreement (the Lease) with non-party New York Communications Center Associates, LP, (Landlord) for the premises located at 350 West 50th Street, New York, NY, ground-floor, operated as TMPL Gym (the Gym) (see New York State Court Electronic Filing System [NYSCEF] Doc. No. 26, Lease) . Pursuant to Paragraph 78 of the Lease, entitled “Landlord’s Contribution”, Landlord agreed to reimburse plaintiff up to $3,750,000.00 for renovation costs — tenant improvement funds” — incurred by plaintiff within the first year of the lease term (see id. at 1 78 [A]). The Lease further provided as follows:

{C) [Landlord] shall pay t o [plaintiff] the remaining 10% [$375,000.00] of the [$3, 750,000.00] promptly following the later to occur of the date ( i) [plaint iff] opens for business to the general public in the demised premises and ( ii) [plaintiff] shall deliver to Landlord all Building Department Filing document s, permit s, and approvals, or such other evidence reasonably satisfactory to Landlord that the work is i n compliance with the Law [] ” (D) Notwithstanding the foregoing, [plaintiff’ s ] right t o collect Landlord’s Contribution shall exist only with respect to costs actually incurred by Tenant within the first year of the Term [], and to t he extent not utilized within such period, Landlord’ s Contribution shall be deemed waived by Tenant and Landlord shall be under no further obligation to make any further payments to Tenant [] . ” (id.). In October of 2016, plaintiff and non-party TSI Hell ‘s Kitchen, LLC (TSI) entered into discussions to sell the Gym to TSI (see NYSCEF Doc. No . 002, Complaint). Plaintiff retained defendant LARRY H SCHATZ (defendant) to represent plaintiff for t he purposes of this sale (see i d. ) . In accordance with t he sal e, defendant drafted and negotiated an Asset Purchase Agreement (APA) and Assignment and Assumption of Lease {Assignment) on behalf of plaintiff. On or about November 22, 2017, plaintiff, represented by defendant, and TSI entered into t he APA and Assignment (see NYSCEF Doc. No. 003 , APA, dated November 22, 2017; see also NYSCEF Doc. No. 004, Assignment, dated December 11, 2017). Defendant a l so drafted and negotiated a Consent Agreement, entered into between plaintiff and Landlord on December 12, 2017 (see NYSCEF Doc. No. 004, Consent Agreement, dated December 12,2017}. The Consent Agreement required plaintiff to “obtain a temporary certificate of occupancy (TCO} in connection with certain alterations performed by tenant [plaintiff] in the premises in respect of the permitted use” (id. at~ 3[a]}. It also provided that, “failure of [plaintiff] to have obtained the TCO as of the date of this Consent . . shall not be deemed to be a default under the Lease, provided and on the condition, that [plaintiff] shall promptly undertake and proceed with diligence to obtain such TCO” (id.). Pursuant to the same, plaintiff was required to give $250,000.00 to Landlord to hold in escrow until plaintiff obtained the TCO (see id. at~ 3 [b)} 2 Thereafter, in accordance with the Consent Agreement, plaintiff deposited $250,000.00 with Landlord, who had also held the $375,000.00, representing ten percent of the $3,750,00.00 owed to plaintiff for renovation expenses (the TI Funds) (see NYSCEF Doc. No. 002, Complaint). In total, Landlord retained $625,000.00. On or about September 22, 2020, the City of New York issued the TCO with an effective date of September 29, 2020 (see NYSCEF Doc. No. 005, TCO, dated September 29, 2020). However, Landlord refused to release the $625,000.00 to plaintiff because TSI had failed to make rent payments pursuant to the Lease, which plaintiff had assigned to TSI (see NYSCEF Doc. No. 002, Complaint) . On October 8, 2020, defendant demanded that Landlord release the TI Funds “of $375,000.00 as a final payment of [the] Tenant Improvement Allowance due to [plaintiff] plus the sum of $250,000.00 as security for the issuance of a TCO [] which has been issued” (NYSCEF Doc. No. 006, Demand Letter, dated October 08 , 2020) . Landl ord refused to release the funds. Consequent ly, on October 26, 2020, plaintiff commenced an action against TSI and Landlord to recover, among other things, the $625,000 .00 in funds all egedly belonging to plaintiff (see 99th Avenue Holdings , LLC v TSI Hell’s Kitchen LLC, New York Communications Center Associates, LP, SL Green Management, LLC a nd RXR Realty LLC, Index No . 655667/ 2020 [A. Engoron, J .S.C.] [Sup Ct, NY Cnty] [TSI Litigation] ) . Plaintiff retained non-party Thomas Shanahan, Esq. (TSI Litigation counsel), to represent it in the TSI Litigation. Throughout the TSI Litigation, TSI Litigation counsel and plaintiff continued to confer with defendant (see NYSCEF Doc. No . 18, Email Exchanges between plaintiff, defendant, and TSI litigation counsel, dated November 5, 2020, through October 5, 2021). Though plaintiff successfully recovered the $250, 000. 00, the court (A . Engoron, J.S.C.) declined to award plaintiff the remaining $375,000.00 (see NYSCEF Doc. No. 12, TSI Litigation Decision and Order, dated September 05, 2023).”

“Here, on October 8, 2020, defendant demanded that Landlord release the $625,000.00 to plaintiff, which Landlord refused to do (see NYSCEF Doc. No. 006, Demand Letter, dated October 8, 2020). Thereafter, on October 26, 2020, plaintiff commenced the TSI Litigation against Landlord to recover the $625,000.00, and retained new counsel to represent it in that proceeding. As a general rule, the retention of the TSI Litigati on counsel ended the attorney-client relationship between plainti ff and defendant (see Steinberg v Schnapp, 73 AD3d 171, 176 [1st Dept 2010]; see also Cohen v Grainer, Tesoriero & Bell , 81 NY2d 655, 658 [1993] Cerio v Koldin, 289 AD2d 1080 [4th Dept 2001) [finding that attorney-client relationship ceased to exist when plaintiff retained new counsel). Therefore, defendant avers that the l egal malpractice cause of action accrued on or before October 26, 2020, and this action, commenced on February 25, 2024, is barred as untimely. However, plaintiff alleges that defendant conti nued to confer with plaintiff and TSI Litigation counsel, as well as provide legal advice and defense strategies, throughout the entirety of the TSI Litigation, thereby tolling the statute of limitations pursuant to the continuous representation doctrine. “The continuous representation doctrine tolls the statute of limitations . where there is a mutual understanding of the need for further representation on the specific subject underlying the malpractice claim” (Zorn v Gilbert, 8 NY3d 933, 934 [2007] quoting McCoy , 99 NY2d at 306). “For the continuous representation doctrine t o apply t o an action sounding in legal malpractice, there must be clear indicia of an ongoing, continuous, developing and dependent relationship between the client and the attorney, which often includes an attempt by the attorney to rectify the alleged act of malpractice” (LavelleTomko v Aswad & Ingraham, 191 AD3d 1142, 1145 [3d Dept 2021] quoting Intl. Electron Devices (USA) LLC v Menter, Rudin & Trivelpiece, P.C., 71 AD3d 1512, 1513 [4th Dept 2010]).”

“At this juncture, particularly because plaintiff retained new counsel in the TSI Litigation, the court can not determine whether the continuous representation doctrine tolled the statute of limitations. There are issues of fact as to whether defendant’s conferral with plaintiff and TSI Litigation counsel from October 22, 2020, through October 5, 2021, constitutes an attempt to rectify the alleged malpractice; whether there was a clear delineation of an ongoing and continuous relationship between plaintiff and defendant, and mutual understanding of the same; and whether the sale of the Gym and the TSI litigation were part of a continuing, interconnected representation (see Red Zone LLC v Cadwalader, Wickersham & Taft LLP, 27 NY3d 1048, 1050 [2016] [finding that questions of fact exist regarding whether the statute of limitations was tolled by the continuous representation doctrine in light of “the absence of any clear delineation of the period of such representation and “the changed nature of the alleged legal representation”]; see also Berger & Assoc. Attorneys, P.C. v Reich, Reich, & Reich, P.C., 144 AD3d 543 [1st Dept 2016]; Davis, 160 AD3d at 486).”