“But for” causation is highlighted in the technical description of a commercial loan and its consequences in Salamone v Deily & Glastetter, LLP 2025 NY Slip Op 04846 [241 AD3d 1078] September 4, 2025 Appellate Division, First Department. Whether the loan was usurious and how the attorneys interacted with the loss of repayment are discussed.

“The complaint alleges the following facts. In 2019, plaintiff-appellant Kenneth Salamone retained defendant Deily & Glastetter, LLP (D&G) and its partner, defendant Leigh A. Hoffman, Esq.,[FN1] to provide legal advice and drafting assistance in connection with plaintiff’s 30-day loan of $2,000,000 jointly to nonparties EIP Global Fund, LLC and Sridhar Chityala, plaintiff’s partner in another company (the nonparties). Hoffman drafted a demand note for the loan, which plaintiff and the nonparties executed on October 11, 2019. Mr. Chityala signed the note personally and on behalf of EIP. The demand note was due and payable on November 10, 2019 and required the nonparties to pay 10% annual interest on the principal. When the nonparties failed to repay the loan, plaintiff and the nonparties agreed that plaintiff would forbear from enforcing his rights under the demand note for an additional 30 days and the nonparties would pay plaintiff an additional sum of $300,000 to compensate him for his lost opportunity damages resulting from his inability to promptly repurchase Apple stock he had liquidated to fund the original 30-day loan. D&G drafted and counseled plaintiff to sign a forbearance agreement that: (1) imposed a higher interest rate of 20% per year on the unpaid principal commencing on November 27, 2019; (2) set forth the nonparties’ agreement to pay plaintiff $300,000 as a “forbearance fee”; (3) provided that the nonparties would be liable for plaintiff’s counsel fees incurred to enforce the demand note or the forbearance agreement; and (4) granted plaintiff a security interest in certain of Mr. Chityala’s membership interests in EIP and other companies (the Membership Interests), in order to secure the nonparties’ obligations under the demand note and the forbearance agreement.

The forbearance agreement did not set a specific date for payment, but provided that if the nonparties paid the sums due under the default notice by December 4, 2019, the forbearance fee would be reduced to $250,000, and the total sums due to plaintiff would be $2,319,876.70 “plus per diem interest at 20%.” It further provided, “[u]pon payment of the Default Amounts plus all accrued interest, plus the Forbearance Fee on or before December 17, 2019,” plaintiff would deliver a release to the nonparties.

When the nonparties failed to comply with the terms of the forbearance agreement, D&G commenced an action against them on plaintiff’s behalf seeking: (1) a declaratory judgment that plaintiff is entitled to certain financial disclosure provided for in the forbearance agreement; (2) a declaratory judgment that he is entitled to the Membership Interests; (3) damages for fraud; (4) damages for breach of the demand note and forbearance agreement in the amount of $2,369,918.50[FN2] “plus interest from November 27, 2019 in the amount set forth in the forbearance agreement”; and (5) injunctive relief.

The nonparties moved to dismiss, arguing, among other things, that the claims for relief based on breach of contract should be dismissed because the rate of interest was usurious. Specifically, the nonparties argued that since plaintiff sought payment of $2,369,918.50 as of November 27, 2019, on the October 11, 2019 loan of $2,000,000, plaintiff sought interest totaling 143.6% per year.

D&G opposed the motion and cross-moved for summary judgment in plaintiff’s favor. Counsel argued that the forbearance fee was additional principal, not interest. They further asserted that neither EIP nor Mr. Chityala could assert a civil usury defense based on the value of the loan under General Obligations Law § 5-501 (6) (a) (“[n]o law regulating the maximum rate of interest . . . except [Penal Law §§ 190.40; 190.42] shall apply to any loan or forbearance” in the amount of $250,000 or more). Furthermore, since the annual interest rates charged on the face of the forbearance agreement did not reach or exceed the criminal usury rate of 25% per year (Penal Law § 190.40), D&G argued that the forbearance agreement was not usurious. D&G did not argue that the nonparties were estopped from claiming that the forbearance agreement was usurious because plaintiff and the nonparties had a “special relationship” (see Seidel v 18 E. 17th St. Owners, 79 NY2d 735, 743 [1992] [“a borrower may be estopped from interposing a usury defense when, through a special relationship with the lender, the borrower induces reliance on the legality of the transaction”]), nor did the forbearance agreement assert such a relationship.

Supreme Court’s decision noted that General Obligations Law § 5-501 (2) provides that “[t]he amount charged, taken or received as interest shall include any and all amounts paid or payable, directly or indirectly, by any person, to or for the account of the lender in consideration for making the loan or forbearance.” It held that the forbearance agreement was usurious because the “forbearance fee” constitutes interest for the purpose of the usury law. It further held that plaintiff was entitled to sums due under the demand note (see Salamone v EIP Global Fund LLC, 2020 NY Slip Op 32295[U], *5-6 [Sup Ct, NY County 2020], citing General Obligations Law §§ 5-501 [2]; 5-521, and Penal Law § 190.40). Accordingly, Supreme Court dismissed all of plaintiff’s causes of action except for so much of his breach of contract claim as alleged breach of the demand note. On November 9, 2020, Supreme Court entered a judgment in plaintiff’s favor on the demand note in the amount of $2,262,702.44, consisting of the principal amount of the loan with 10% pre-judgment interest and 9% postjudgment interest, and $45,000 representing approximately 60% of D&G’s fees billed to plaintiff at that time.

Plaintiff appealed. D&G argued on appeal that the nonparties were estopped from asserting a usury defense because of their special relationship with plaintiff.[FN3] By decision and order dated April 20, 2021, this Court modified the motion court’s order. We denied the nonparties’ motion to dismiss as to plaintiff’s causes of action for declaratory judgments that he is entitled to certain financial discovery under the forbearance agreement and to the Membership Interests, denied the motion as to the cause of action for contractual attorneys’ fees under the forbearance agreement, and otherwise affirmed.

This Court found that plaintiff had alleged sufficient facts to establish a special relationship with the nonparties that would support a claim for estoppel, and that “[i]n the absence of estoppel, the forbearance agreement is otherwise void as usurious and the forbearance fee is properly considered interest” (Salamone v EIP Global Fund LLC, 193 AD3d 558, 558 [1st Dept 2021]). In reaching that holding, we cited Seidel v 18 E. 17th St. Owners (79 NY2d 735), in which the Court of Appeals held that “a borrower may be estopped from interposing a usury defense when, through a special relationship with the lender, the borrower induces reliance on the legality of the transaction” and that even under those circumstances, the borrower is “entitled, at most, to recovery of the amount advanced, with legal interest” (id. at 743).

Accordingly, this Court’s order permitted plaintiff to pursue his claims under the forbearance agreement for certain financial discovery, transfer of the Membership Interests, and counsel fees. However, because the estoppel defense could only result in recovery of the amount advanced with legal interest (id.), plaintiff could not seek recovery of the $300,000 forbearance fee. Had this Court intended that plaintiff be permitted to seek recovery of the forbearance fee on an estoppel theory, it would have further modified the motion court’s order by reinstating plaintiff’s cause of action for breach of the forbearance agreement, but it did not do so. Accordingly, we reject defendants’ claim in this appeal that this Court’s prior order “paved the way for plaintiff to recover the Forbearance Fee.”

On November 26, 2022, plaintiff commenced this action against D&G and Hoffman seeking damages for legal malpractice. The complaint alleges that, had defendants not drafted a facially usurious forbearance agreement and counseled plaintiff to sign it, he would have “enforced his rights under the Demand Note, and separately documented the [prior] agreement [by discussions and communications with the nonparties] to compensate Plaintiff for his lost opportunity to immediately repurchase the Apple stock he liquidated to fund the 30-day loan. Plaintiff would also not have incurred considerable legal fees expended in exhausting all possible procedural avenues to avoid, minimize, or reduce the damage caused by the usurious Forbearance Agreement that Hoffman drafted, much of which was not reimbursed to Plaintiff.” Defendants moved to dismiss. The motion court granted dismissal for failure to state a cause of action (CPLR 3211 [a] [7]).

Defendants state two reasons why the motion court properly dismissed the complaint. First, defendants argue that defendants could not have committed malpractice given this Court’s previous finding that plaintiff adequately alleged a “special relationship” with the nonparties to support an estoppel defense in the earlier action. Second, defendants view plaintiff’s claim for damages as “speculative.” We reject both arguments.

Defendants’ inclusion in the forbearance agreement of an unenforceable provision that made the agreement facially usurious resulted in additional legal fees for plaintiff, a substantial portion of which have not been reimbursed. The fact that this Court previously found that plaintiff adequately demonstrated in the earlier appeal that he had a “special relationship” sufficient to make out an estoppel claim against the nonparties in the earlier action does not establish that D&G selected a reasonable strategy to accomplish plaintiff’s goals (see Dweck Law Firm v Mann, 283 AD2d 292, 293 [1st Dept 2001] [“Attorneys may select among reasonable courses of action in prosecuting their clients’ cases . . . a purported malpractice claim that amounts only to a client’s criticism of counsel’s strategy may be dismissed”]). Indeed, the fact that defendants failed to raise the estoppel argument until after the case was before this Court strongly suggests that this was not D&G’s strategy at all, but a belated attempt to cover up their errors. Moreover, whether it was a strategy or not, the estoppel claim could not and did not result in plaintiff recouping his lost opportunity costs. Furthermore, for the reasons discussed above, contrary to defendant’s claim, this Court’s prior order does not permit plaintiff to seek the $300,000 forbearance fee under an estoppel theory.

Plaintiff in a malpractice action must ultimately prove that the attorney “failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). “[A]n attorney is obligated to know the law relating to the matter for which he/she is representing a client and it is the attorney’s duty, if he has not knowledge of the statutes, to inform himself, for, like any artisan, by undertaking the work, he represents that he is capable of performing it in a skillful manner” (Fielding v Kupferman, 65 AD3d 437, 440 [1st Dept 2009] [internal quotation marks omitted]). On this record, we find that D&G did not meet their obligation to exercise ordinary skill in representing plaintiff in this transaction by drafting an unenforceable provision that made the forbearance agreement facially usurious.

We also reject the argument that plaintiff’s damages claim is “speculative.” “To survive a pre-answer motion to dismiss pursuant to CPLR 3211 (a) (7), a pleading need only state allegations from which damages attributable to the defendant’s conduct may reasonably be inferred” (Fielding, 65 AD3d at 442 [internal quotation marks omitted]). Here, plaintiff seeks damages to reimburse him for the counsel fees he incurred in attempting to “avoid, minimize, or reduce the damage caused” by the facially usurious forbearance agreement defendants drafted and advised him to sign (see Rudolf, 8 NY3d at 443). Accordingly, plaintiff’s damages attributable to defendants’ conduct are not speculative and can be easily inferred from the complaint.

However, plaintiff is not entitled to pursue his claim that but for defendants’ actions, he would have “separately documented the [prior] agreement [by discussions and communications with the nonparties] to compensate Plaintiff for his lost opportunity to immediately repurchase the Apple stock he liquidated to fund the 30-day loan.” As made clear in this decision, plaintiff is not entitled to recoup his lost opportunity costs beyond the amount he has already obtained a judgment for as that would result in an unenforceable usurious loan, whether or not an estoppel claim lies.”

In a very (very) unusual kind of opinion, Justice Weinmann of Supreme Court, Erie County holds in Hogan v Van Buren, 2025 NY Slip Op 25259 Decided on October 3, 2025 that a suspended attorney may not seek fees from the clients involved in the litigation which caused his suspension.

“Corey Hogan is a well-known western New York attorney who is presently suspended from the practice of law. He now wishes to represent himself in order to sue his former clients to recover legal fees, advances and disbursements for the work which was the rationale for his suspension. He now claims $1.177 million from his former clients.

The threshold issue for this Court to determine is whether Mr. Hogan —as a suspended attorney— has the legal right to represent himself, and furthermore, if he does, whether he has the legal right to sue his former clients for work which was the rationale for his suspension.

The defendants are farmers who sought representation and legal counsel in 2015 from plaintiff, the managing attorney of the Hogan Willig firm, a suburban law firm at the time with over 100 professionals including attorneys, paralegals, and administrative staff. Over the course of more than 2 years, plaintiff provided substantial legal services to defendants; assisted with refinancing efforts; defended against creditor claims; negotiated with creditors; and provided financial analysis to stabilize the business, including farm management services such as the collection of receivables from crop sales; payment of bills; marketing of farm products; coordinating digital mapping of farm fields; contact with customers regarding the sale of farm products; and bookkeeping and accounting services.

In addition, according to the Appellate Division, Fourth Department’s Decision (Matter of Corey J. Hogan et al. [2023 NY Slip Op 00612] [4th Dept 2023], Motion for Leave to Appeal [*2]denied [NY Slip Op 65344] [Court of Appeals 2023]), plaintiff provided his clients with financial assistance in the form of “advances” of funds, the majority of which were used to pay expenses associated with the operation of the farming business, including the purchase of supplies such as fuel, fertilizer, seed, equipment parts, and the payment of other expenses such as trucking costs, wages for farm employees, insurance premiums, land lease payments, and owners’ draws paid to the clients.

Moreover, added the Court, some of the advances of funds were used to pay marketing costs, delinquent balances on debt owed to vendors and creditors, and disbursements associated with lawsuits in which Hogan Willig was representing the clients. The sources of the advances were Hogan’s personal funds; Hogan Willig’s credit card accounts; Hogan Willig’s operating account; and an LLC that was created, solely owned, and funded by Hogan. Plaintiff provided no promissory notes or loan documentation; sale or purchase contracts; leases; or any other memorialization of the terms of repayment.

Furthermore, added the Court, plaintiff purchased 11 pieces of farming equipment, and filed a UCC financing statement listing the defendants as debtors to plaintiff’s LLC, and listing as collateral all crops, livestock, farming equipment and supplies. Finally, plaintiff arranged for 3 mortgages in the amount of $100,00; $150,000, and $250,000 listing Hogan Willig as the mortgagee and defendants as the mortgagor. As if all that were not enough, the Court found that plaintiff did not disclose to his clients the terms of the transactions, nor did he advise his clients of the potential of any conflict of interest, or the advisability of seeking independent legal counsel.

But the straw that broke the camel’s back was plaintiff’s advice to his clients that they file for bankruptcy, after he had steered them into $2.5 million in debt—which did not even include the $1.177 million they allegedly owed to plaintiff for all the good work that he did for them.”

“In 2022, the Appellate Division, Fourth Department issued a 7 page unanimous Opinion listing the aforementioned transactions and much more, and holding that plaintiff violated 5 specific Rules of Professional Conduct. They noted that plaintiff failed to express contrition or remorse and failed to sufficiently acknowledge “his substantial disregard of his ethical obligations . . . .” Accordingly, after due deliberation and consideration, the Court suspended Corey Hogan from the practice of law for a minimum of 2 years.

The Court issued a 2 page Order finding the plaintiff guilty of professional misconduct, and notably held:

“It is further ORDERED that Corey J. Hogan is hereby commanded during the term of [*3]

such suspension to cease and desist from the practice of law in any form either as principal or agent, clerk or employee of another, and his hereby forbidden to appear as an attorney or counselor-at-law before any court, judge, justice, board, commission or other public authority, or to give another an opinion as to the law or its application, or any advice in relation thereto . . . (emphasis added).”

In a case of first impression, it is now up to this Court to determine whether the Order of the Appellate Division prohibits Mr. Hogan from representing himself in order to sue his former clients.”

“Applying both Sassower decisions to the facts at bar, it is evident that there is a significant factual distinguishing circumstance. At bar, the Fourth Department specifically and categorically issued an Order of the Court prohibiting Mr. Hogan from “the practice of law in any form either as principal or agent” (emphasis added). The first Sassower case, from a level below State Supreme Court and in another county of the state, did not reference the specifics, particularities, or actual terms in the Order of Suspension pertaining to Ms. Sassower. Likewise, the Second Department’s Opinion 4 years later also made no mention of the details, particularities, and terms of the Order of Suspension. But notably, the Court narrowed Sassower’s ability to self-represent. There the Court held she could self-represent as an individual, but not as president of her own P.C. (professional corporation). But again, there the facts are distinguishable from those at bar. There are no terms or particularities in the Order referenced. And again, the Second Department is a Court of different, concurrent jurisdiction to the Fourth Department, thus that decision is not controlling. And finally, there the suspended attorney was defending 2 lawsuits —not seeking to proactively file a lawsuit. In sum, the 2 cases cited, while arguably distinguishable, simply do not support any argument that Mr. Hogan may self-represent, in view of the Fourth Department’s extremely limiting and qualifying language in its Order of Suspension.

Finally, Mr. Hogan cited at oral argument the 6th Amendment to the U.S. Constitution for the proposition that courts may not prohibit even non-attorneys from self-representation. Further, he argued, that because he was suspended, and now acting as a non-attorney, he had the constitutional right to represent himself. However, even the U.S. Supreme Court has held that this constitutional right applies only in the realm of criminal law, where a defendant, made to respond to a criminal charge, has the right to self-representation (Faretta v. California, 422 US 806 [1975]). At bar Mr. Hogan seeks the opposite — not to defend, but to affirmatively file a lawsuit —and in a civil— not a criminal court. Thus even the U.S. Constitution and U.S. Supreme Court cannot help Mr. Hogan here.

In view of the aforementioned, this Court now holds that Corey J. Hogan, as an attorney suspended from the practice of law, may not represent himself in filing a lawsuit, whether against his former clients or otherwise.”

“Applying the doctrine of Unclean Hands and Levy, supra and McConnell supra, and Hytco, supra, plaintiff at bar shall not be “permitted to profit by his own fraud, or to take advantage of his own wrong.” Both equity and public policy, as described by the Appellate Division First and Third Departments and the Court of Appeals, therefore would prohibit Mr. Hogan from receiving compensation for his work for the farmers. Hogan’s representation clearly harmed the farmers to the tune of a more than $2 million debt, to say nothing of the ethical morass they could never have anticipated when they sought out assistance and counsel for their foundering farm.

Finally, counsel for the farmers ask this Court to sanction Mr. Hogan by awarding costs and legal fees for his allegedly frivolous conduct in launching this litigation, (22 NYCRR 130). “Frivolous” is defined by the statute as conduct that is completely without merit in law, and cannot be supported by reasonable argument . . . or is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another. At bar, applying extreme logic to the entire saga of events, it cannot be said that Mr. Hogan’s request to be paid for his representation of his clients is “completely without merit,” however unethical the services may have been. After all, there is an old adage that no one works for free. Most would agree that lawyers should be paid for their work. Thus it might be said that while Mr. Hogan’s attempt to get paid could arguably be better characterized as: audacious; ballsy; disingenuous; nervy; [*8]brazen; shameless; or greedy, it is not entirely accurate to characterize it as “frivolous,” as defined by the statute. Really the most functional characterization for Mr. Hogan’s conduct is arguably best described by a term that is not even considered part of the English language but comes from what has been described as one of God’s gifts to humanity, Yiddish. The term most appropriate to characterize Mr. Hogan’s conduct at bar is “chutzpah.” The great author Leo Rosten has described chutzpah as the criminal defendant standing in Court after being convicted of killing his parents, begging for mercy because he is an orphan. That is chutzpah. This Court therefore holds that while Mr. Hogan’s plea in seeking payment for decidedly unethical conduct which caused his suspension from the practice of law is not frivolous, it is unarguably a stunning and breath-taking example of chutzpah. The defendants’ application for sanctions is therefore denied.

For the above-sated reasons, it is therefore

ORDERED, that the defendants’ motion granting summary judgment in favor of the defendants and dismissing Plaintiff’s Complaint in its entirety, on the merits, and with prejudice, is GRANTED; “

As yet another real estate legal malpractice case, the decision in 538 Morgan Realty LLC v Law Off. of Aihong You, PC 2025 NY Slip Op 06639 Decided on December 02, 2025
Appellate Division, First Department distinguishes between two different (and subsequent) firms.

“Plaintiffs alleged facts permitting a reasonable inference that the liquidated damages clause would have been found unenforceable had the You defendants timely challenged it in the underlying action (see generally Bates Adv. USA, Inc. v. 498 Seventh, LLC, 7 NY3d 115, 120 [2006]; Truck Rent-A-Ctr. v Puritan Farms 2nd, 41 NY2d 420, 423-25 [1977]). Plaintiffs adequately pleaded that contract damages could have been readily ascertained by deducting the contract price from the fair market value of the property at the time of the breach (see generally White v Farrell, 20 NY3d 487, 489 [2013]), obviating the need to resort to liquidated damages, and/or that the liquidated damages amount was grossly disproportionate to any potential actual damages. Moreover, the testimony of the contracting parties’ representatives that the liquidated damages clause constituted a “punishment” or “penalty” supports plaintiffs’ claims that the clause was unenforceable, as well as plaintiffs’ allegations that the You defendants advised them that the liquidated damages clause was unenforceable.

The contract’s statements that “Purchaser’s damages in case of Seller’s default might be impossible to ascertain” and that the liquidated damages amount was “a fair and reasonable amount of damages under the circumstances” are not dispositive (see Truck Rent-A-Ctr., 41 NY2d at 425).

Plaintiffs also alleged facts permitting a reasonable inference that had the liquidated damages clause been deemed unenforceable, the damages awarded at trial (which were largely based on the liquidated damages amount) would have been significantly reduced, and given plaintiffs greater leverage in settlement negotiations (cf. Bernstein v Oppenheim & Co., 160 AD2d 428, 430 [1st Dept 1990] [claim for malpractice stated where counsel’s mistakes compelled settlement]).

Plaintiffs did not, however, adequately plead a legal malpractice claim against defendants Joseph & Smargiassi, LLC, John Smargiassi, and Mario Alexis Joseph (the JS defendants) with respect to the alleged negligent failure to challenge the liquidated damages clause. The JS defendants were not retained until four years after the motion to dismiss was decided, an amended complaint filed and answered, and approximately seven months after the note of issue was filed. Plaintiffs argue that defendants should have filed a summary judgment motion seeking dismissal of the claim for liquidated damages; however, by the time the JS defendants were retained, the time to file such a motion had already expired (see CPLR 3212[a]). Although a court may grant leave to file a late summary judgment motion “on good cause shown” (CPLR 3212[a]), the You defendants had already moved to vacate the note of issue and to file a late summary judgment motion, and those motions were denied.

Further, the legal malpractice claim was properly dismissed as against all defendants to the extent that it was premised on their alleged failure to take measures beyond the motion to dismiss to shield the individual plaintiffs from personal liability in the underlying action on the conversion claim. Plaintiffs failed to allege facts permitting a reasonable inference that any motion to establish that they lacked “complete domination and control” over their entity would have been successful (see Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d 135, 141-142 [1993]; Tap Holdings, LLC v Orix Fin. Corp., 109 AD3d 167, 174 [1st Dept 2013]). Further, that defendants may have promised to file such a motion is not sufficient. The court in the underlying action found that the allegations in the complaint supported a piercing the corporate veil theory, and the testimony at trial showed that the individual plaintiffs personally received the contract prepayment amount. The trial court’s comments at the posttrial hearing do not give any indication as to how it would have ruled had the issue of personal liability actually been before it.”

Coyle v Catterson 2025 NY Slip Op 34372(U) November 17, 2025 Supreme Court, New York County Docket Number: Index No. 157161/2025 Judge: James d’Auguste is a kind of celebrity legal malpractice case, in as much as the defendant is a former Court of Appeals Judge who transitioned to a big law position. The underlying case involves the celebrity Maidstone Gun Club in East Hampton, long a center for celebrity shooters.

“For the reasons outlined below, petitioners Kevin Coyle and Tracy Carey’s request for pre-action discovery is denied, and respondents Pillsbury Winthrop Shaw Pittman LLP and James Catterson’s (“Pillsbury”) motion to dismiss this proceeding is granted.1 Pillsbury’s motion for a change of the venue of this proceeding from New York County to Suffolk County is denied as moot. Petitioners commenced this litigation, in their individual capacities, seeking litigationrelated documents concerning respondents’ former representation of petitioners as trustees of the Kevin B. Coyle Revocable Trust and Tracy E. Carey Revocable Trust (the “Trusts”) in Pintillie v. Maidstone Gun Club and Town o_f East Hampton, Suffolk County Index Number 206837/2022 (“Maidstone Gun Club Action”). NYSCEF Doc. No. 1.2 The Maidstone Gun Club Action

1 The Court expresses its appreciation to court attorney Brian Krist, Esq. for his assistance in this matter.

2 In the Maidstone Gun Club Action, neither Kevin B. Coyle nor Tracy E. Carey is a plaintiff in their individual capacity. As stated in that action’s complaint: “Plaintiffs Kevin B. Coyle serves as trustee of the Kevin B. Coyle Revocable Trust and Tracy E. Carey as Trustee of the Tracy E. Carey Revocable Trust (hereinafter collectively referred to as the ‘Revocable Trusts’).” Maidstone Gun Club Action, NYSCEF Doc. No. 2 at~ 7.”

“involves allegations that bullets from firearm activity at a gun range are striking nearby homes. Pillsbury was remarkably successful in prosecuting the Maidstone Gun Club Action on behalf of the plaintiffs in the underlying action. Nonetheless, Pillsbury eventually withdrew as counsel to the Trusts but continued to represent other plaintiffs in the Maidstone Gun Club Action. Thereafter, the Trusts terminated being represented by Greenberg Traurig (“Greenberg”), their co-counsel in this underlying litigation. Maidstone Gun Club Action, NYSCEF Doc. No. 348. At that juncture, Greenberg provided the Trusts with almost the entirety of the firm’s litigation file. Unsurprisingly, given this co-counsel status, Greenberg’s litigation file is apparently identical to Pillsbury’s litigation file. The only document not produced to the Trusts was an “attorneys’ eyes only” confidential term sheet. Although all plaintiffs were provided with information regarding the proposed resolution, the Trusts have doggedly sought to compel the production of the actual underlying document. The Court (Modelewski, J.) denied the Trusts’ application. As the Trusts, in submissions, have asserted judicial bias directed toward Justice Modelewski, the undersigned took additional time in reviewing transcripts and filings surrounding this issue. There does not appear to be any legitimate basis for petitioners’ accusation of bias, and the transcript references cited in support of this contention are woefully inadequate to support such an inference. For instance, during a court conferenc.e conducted on March 26, 2025, Justice Modelewski ,stated to the Trusts’ new counsel, Jonathan Wallace:

Mr. Wallace, I did read your letter. So I understand that you have a number of concerns. If, in fact, the matter is settled, that doesn’t foreclose your clients from continuing the litigation.

However, I would offer you this caution. You had mentioned in the body of your letter that you were contemplating an Order to Show Cause with a request for a temporary restraining order as respects the Town and the anticipated execution by the supervisor of a lease agreement.

You should know that it has been the law in this state for many, many years~- and will harken back to a. case that I like to cite simply because I kind of like Judge Sol Wachtler when he was trial term in Nassau County in 1970, he presided over a matter. I don’t have the case citation, but it was captioned Goldin, with an I, versus Hempstead.

In the body of that decision, the Judge, who you all know went on to become the Chief Judge of the Court of Appeals in this state, he articulated accurately that you cannot enjoin a municipal official from the commission of an official act.

I’m just cautioning you that you ought not make that application in this part. Whatever it is that is additional to that that you believe is lawful and ethical and necessary in order to prosecute whatever rights you wish to prosecute on behalf of your clients, you can and should do. But I’m telling you right now, don’t do that. Maidstone Gun Club Action, NYSCEF Doc. No. 371 at Tr. 5:17-7:2.”

“As noted above, the Trusts made an application seeking the production of this document, which is likely inadmissible pursuant to CPLR 454 7 and therefore itself is of little substantive relevance, that was presented to Justice Modelewski. He declined to order its production. Any challenge to this determination should have been made to the Second Department, not by the instant (seemingly judge-shopping) application to a judge of coordinate jurisdiction sitting in another county and department. Accordingly, the petition seeking pre-action discovery is denied, and the motion seeking the petition’s dismissal is granted. This constitutes the decision and order of the Court.”

Matrimonial cases are unlike almost every other kind of case except a criminal plea. Get involved in a car accident and you will likely settle through your attorney with a release and a stipulation of discontinuance. Resolution of a breach of contract will follow the same paradigm, as will a battle over patents. However, settle a matrimonial action and you will be “allocuted” by the judge, and one of the questions will be whether you are satisfied with your attorney’s work. The answer to this question has manyfold consequences, as we see in Valentina v Beckerman 2025 NY Slip Op 04682 [241 AD3d 751] August 13, 2025 Appellate Division, Second Department.

“In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Donna-Marie E. Golia, J.), entered January 6, 2021. The judgment, upon an order of the same court entered December 21, 2020, granting the defendants’ motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint, and upon an order of the same court also entered December 21, 2020, denying, as academic, the plaintiff’s motion for leave to amend the complaint, is in favor of the defendants and against the plaintiff dismissing the complaint. The notice of appeal from the orders is deemed to be a notice of appeal from the judgment (see id. § 5512 [a]), and the appeal from the judgment will be prosecuted under Appellate Division Docket No. 2021-00617 and not under Appellate Division Docket No. 2021-00618.

Ordered that the judgment is affirmed, with costs.”

“Here, in support of their motion, the defendants submitted, inter alia, a transcript of the court proceeding in the underlying action containing the plaintiff’s allocution conducted by the court regarding the settlement agreement, which conclusively established that the plaintiff was not effectively compelled to settle the underlying action (see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 757-758 [2014]). The plaintiff’s allegations that she was coerced into settling the underlying action were utterly refuted by her admissions during that proceeding that she authorized the defendants to prepare the settlement agreement, was satisfied with the defendants’ representation, was not forced to enter into the settlement agreement, and was not under the influence of stress or duress (see Glenwayne Dev. Corp v James J. Corbett, P.C., 175 AD3d at 474). Although the plaintiff alleged, among other things, that the defendants failed to obtain temporary maintenance during the pendency of the underlying action, improperly advised her that the court was required to impute income to her, and advised her of the possible pitfalls of proceeding to trial rather than settling, those actions did not proximately cause any injuries to the plaintiff since the underlying action was settled and, in light of the plaintiff’s admissions in the underlying action, the “settlement of the [underlying] action was [not] effectively compelled by the mistakes of counsel” (id. [internal quotation marks omitted]). The fact that the plaintiff subsequently was unhappy with the settlement she obtained does not rise to the level of legal malpractice (see Floral Park Ophthalmology, P.C. v Ruskin Moscou Faltischek, LLP, 216 AD3d 1136, 1137 [2023]; Williams v Silverstone, 215 AD3d 787, 789 [2023]). Accordingly, the legal malpractice cause of action was properly dismissed.

The causes of action alleging fraud, breach of contract, breach of fiduciary duty, and intentional and negligent infliction of emotional distress were properly dismissed as duplicative of the legal malpractice cause of action insofar as they arose from the same facts and did not allege distinct damages (see Incorporated Vil. of Freeport v Albrecht, Viggiano, Zurich & Co., P.C., 226 AD3d 658, 660 [2024]; Kahlon v DeSantis, 182 AD3d 588, 590 [2020]). The remaining cause of action alleging sex discrimination was properly dismissed because such a cause of action arises only where an employer discriminates against an employee (see Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d 326, 330 [2003]; Silvers v Jamaica Hosp., 218 AD3d 817, 819 [2023]) and, in any event, the plaintiff’s allegations with respect to that cause of action were conclusory and speculative (see 126 Main St., LLC v Kriegsman, 218 AD3d 524, 525 [2023]; Tong v Target, Inc., 83 AD3d [*2]1046, 1047 [2011]).”

Stinnett v Derek Smith Law Group, PLLC 2025 NY Slip Op 04677 [241 AD3d 737]
August 13, 2025 Appellate Division, Second Department is a decision which obscurely indicates what might be the underlying case, where the underlying case was against Delta Airlines and Quest Diagnostics, and the outcome was that plaintiff was fired. How might Quest and Delta be mentioned in the same breath?

“The plaintiff commenced this action, inter alia, to recover damages for legal malpractice against, among others, the defendants Derek Smith Law Group, PLLC (hereinafter DSLG), and John C. Luke, Jr., who was an attorney at DSLG (hereinafter together the defendants). The plaintiff alleged, among other things, that she retained the defendants to represent her in actions against Delta Air Lines, Inc. (hereinafter Delta), and Quest Diagnostics Clinical Laboratories, Inc. (hereinafter Quest), that were either commenced in federal court or removed from state court to federal court, asserting causes of action alleging, inter alia, employment discrimination, based on gender, sex, and disability, and common-law negligence. The plaintiff also alleged that due to the defendants’ negligent representation, the complaints in the underlying federal actions were dismissed. The defendants moved pursuant to CPLR 3211 (a) (5) and (7) to dismiss the complaint insofar as asserted against them. In an order dated August 16, 2023, the Supreme Court granted the motion. The plaintiff appeals.”

“Here, the cause of action to recover damages for legal malpractice failed to set forth facts sufficient to allege that the defendants’ alleged negligence proximately caused the plaintiff to sustain actual and ascertainable damages (see Buchanan v Law Offs. of Sheldon E. Green, P.C., 215 AD3d 793, 795 [2023]; Joseph v Fensterman, 204 AD3d 766, 769-771 [2022]). The plaintiff’s allegations that but for the defendants’ alleged negligent representation her claims would have been viable and she would have received a more favorable outcome in the underlying federal actions were conclusory and speculative (see Alexim Holdings, LLC v McAuliffe, 221 AD3d 641, 644 [2023]; Mid City Elec. Corp. v Peckar & Abramson, 214 AD3d 646, 649 [2023]). Accordingly, the Supreme Court properly determined that dismissal of the cause of action alleging legal malpractice insofar as asserted against the defendants was warranted pursuant to CPLR 3211 (a) (7).

As a general rule, where a cause of action alleging breach of contract arises from the same facts as a cause of action to recover damages for legal malpractice and does not allege distinct damages, the cause of action alleging breach of contract must be dismissed as duplicative of the cause of action to recover damages for legal malpractice (see Postiglione v Castro, 119 AD3d 920, 922 [2014]; Town of N. Hempstead v Winston & Strawn, LLP, 28 AD3d 746, 749 [2006]). Here, the cause of action alleging breach of contract was duplicative of the cause of action to recover damages for legal malpractice (see Dabiri v Porter, 227 AD3d 860, 861 [2024]; Lam v Weiss, 219 AD3d 713, 718 [2023]). The allegations supporting the cause of action alleging breach of contract were essentially identical to those supporting the cause of action to recover damages for legal malpractice and did not allege a distinct injury or distinct damages. Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss the cause of action alleging breach of contract insofar as asserted against them.”

Hsiung v Zhang Jiang Lin 2025 NY Slip Op 34306(U) November 7, 2025 Supreme Court, New York County Docket Number: Index No. 650855/2025 Judge: Mary V. Rosado is a situation where an interpleaded plaintiff attorney is holding escrowed funds and was potentially subject to a legal malpractice claim. The attorney proposed to deposit the escrowed funds into the Court, and sought immunity from any liability. The Court agreed, but put off the question of attorney fees due for her defense until later.

“Upon the foregoing documents, and after a final submission date of September 10, 2025, Interpleader Plaintiff Ann Hsiung, Esq.’ s (“Plaintiff’) motion to deposit the sum of $90,000 with the Clerk of the Court, discharging Plaintiff from any and all liability with respect to said funds to any and all Interpleader Defendants, dismissing with prejudice Plaintiff from this action following deposit of the $90,000 with the Registry of this Court, and awarding Plaintiff reasonable attorneys’ fees, costs and disbursements incurred in this action to be paid from the $90,000 is granted in part and denied in part.”

“The Court has considered Wu’s argument in opposition to releasing Plaintiff from liability m this action and finds it unavailing. To the extent Wu alleges Plaintiff committed legal malpractice, the statute of limitations on that cause of action has long since expired. Interpleader Plaintiff is incorrect that her dismissal requires immediate disbursement of her attorneys’ fees. CPLR 1006(f) provides that once the interpleader plaintiff is dismissed from the case “[t]he court shall impose such terms relating to payment of expenses, costs and disbursements as may be just and which may be charged against the subject matter of the action.” Thus, CPLR 1006(f) provides the Court with discretion to fashion the terms of the payment of the interpleader plaintiff’s expenses, costs, and disbursements (see also Fischbein, Badillo, Wagner v Tova Realty, Co., 193 AD2d 442, 445 [ 1993] [ finding expenses may be assessed against interpleader defendants in Court’s discretion]). The Court finds Plaintiff’s request to recoup $19,369.35 in attorneys’ fees, costs, and disbursements purportedly incurred since the filing of this action from the $90,000 to be deposited into the Court to be excessive and unjust. First, the sum requested constitutes a significant portion ( over 20%) of the funds to be deposited. These funds may ultimately be used to satisfy multiple judgments already obtained by certain interpleader defendants against Wu, and the Court finds it would be unjust to deprive those judgment creditors of access to those funds because of Plaintiff’s claimed legal bills. Second, depending on the outcome of parallel litigation (see People of the State of New York v. Wu, et al., Index No. 452904/2022) the Court may find it more appropriate to assess attorneys’ fees and costs against one or several of the Interpleader Defendants as opposed to assessing Plaintiff’s costs against the $90,000 to be deposited into the Court. To be clear, the Court is not denying Plaintiff’s right to costs, fees, and disbursements in this action – but it is reserving judgment on the amount of costs, fees, and disbursements to be awarded until the conclusion of this action and/or People of the State of New York v. Wu, et al., Index No. 452904/2022, because depending on certain findings and determinations in this case or the ongoing action between the Attorney General and Wu, the Court may find it more appropriate to award Plaintiff her costs, fees, and expenses against certain Interpleader Defendants as opposed to assessing it against the $90,000 in funds which may be used to satisfy judgments already held by various Interpleader Defendants against Wu. Therefore, Plaintiff’s motion is granted except with respect to her request for costs, fees and expenses to be drawn from the $90,000 in funds which are the subject of this action. That branch of the motion is denied, without prejudice, with leave to renew upon the conclusion of this action and/or People of the State of New York v. Wu, et al., Index No. 452904/2022.”

NYC is strongly real estate centric, and there is a wide swath of legal malpractice law based upon real estate transactions. Tesniere v Cinotti LLP 2025 NY Slip Op 34269(U) November 10, 2025 Supreme Court, New York County Docket Number: Index No. 160760/2024 Judge: Mary V. Rosado is a recent addition.

“On April 28, 2022, Plaintiff retained Defendants to negotiate and to perform due diligence on the purchase of Unit 2B (the “Apartment”) in the condominium at 42 Tiffany Place, Brooklyn, New York. Defendants were allegedly advised of a fa9ade project presentation and were provided various board meeting minutes. On May 3, 2022, Defendants allegedly advised Plaintiff of an additional assessment of $35,000 related to the fa9ade project. Plaintiff alleges based on this information he entered a contract of sale for the Apartment for $1,615,000. However, on October 1, 2022, Plaintiff was informed that the estimated cost to complete the fa9ade project was $894,000 and he would be obliged to contribute $81,622.20 towards that assessment. Plaintiff alleges board meeting minutes which Defendants allegedly had in their possession reflect that the second phase of the facade project would cost $835,000, far greater than the assessment amount Defendants advised Plaintiff of. The assessment for the second phase of the facade project allegedly increased to $1,044,705. Plaintiff now sues Defendants for legal malpractice based on their alleged failure to conduct proper due diligence. Defendants move, preanswer, to dismiss the Complaint pursuant to CPLR 321 l(a)(l) and (a)(7). Accepting the facts as true and giving Plaintiff the benefit of all favorable inferences which may be drawn from the Complaint, the Court is constrained to deny Defendants’ motion. “In order to survive a motion to dismiss, a plaintiff’s complaint in an action for legal malpractice must show that ‘but for counsel’s alleged malpractice, the plaintiff would not have sustained some actual ascertainable damages”‘ (Gopstein v Beilinson Law, LLC, 227 AD3d 465, 466 [1st Dept 2024] quoting Pellegrino v File, 291 AD2d 60, 63 [1st Dept 2002], lv denied 98 NY2d 606 [2002]). For purposes of a pre-answer motion to dismiss, Plaintiff has adequately alleged a legal malpractice claim, and Defendants have failed to come forth with documentary evidence definitively contradicting Plaintiff’s allegations.”

“Although Defendants rely on factual arguments made by Youbi in an affirmation (NYSCEF Doc. 12), this does not qualify as documentary evidence and simply highlights issues of fact which cannot be resolved on a motion to dismiss (Bou v Llamoza, 173 AD3d 575, 575 [1st Dept 2019]). While Defendants claim they did not have the April 13, 2022 board minutes in their possession at the time of advising Plaintiff on the results of their due diligence, this is an issue which must be flushed out in discovery. Moreover, the e-mail correspondence submitted by Defendants shows that Defendants attempted to access the board minutes on May 2, 2022, but there is no evidence of what board minutes were available for review between the May 2, 2022, e-mail to the condominium and the May 3, 2022 e-mail from Defendants to Plaintiff (see NYSCEF Docs. 15-16). There is also a question of fact as to whether it was reasonable for Defendants to rely on the condominium’s answer to the questionnaire given evidence that Defendants should have been in possession of a facade project presentation that indicated facade restoration would take place in several phases over the span of years (see NYSCEF Docs. 17-18). The questionnaire also put Defendants on notice that there was an impending assessment which would be voted on at a May 8, 2022 board meeting, but there is no evidence that was communicated to Plaintiff nor is there any evidence that due diligence into the pending assessment was conducted. Finally, since Defendants knew the facade repair had only completed phase one, it remains an issue of fact as to whether Defendants should have inquired into assessments and costs of the other phases of the facade repair, and the additional costs that Plaintiff would incur if he purchased the Apartment. Although Defendants claim Plaintiff suffered no actual damages, it cannot be determined on a motion to dismiss whether Plaintiff would have entered a contract to purchase the Apartment had he known about the other assessments, or if he would have succeeded in negotiating more favorable terms prior to entering a purchase agreement using the future assessment costs as leverage. The arguments Defendants are making are more suited for a motion for summary judgment, supported by expert opinions and after written and oral discovery is complete, as opposed to a motion to dismiss based on the pleadings. Therefore, Defendants’ motion is denied (see also Kram Knarf, LLC v Djonovic, 74 AD3d 628, 628 [1st Dept 2010]).”

In Campbell v Law Off. of Solomon Rosengarten 2025 NY Slip Op 04700 [241 AD3d 771]
August 20, 2025 Appellate Division, Second Department it starts to run when plaintiff is no longer able to prosecute a dismissed case.

“In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Richard J. Montelione, J.), dated May 25, 2023. The order, insofar as appealed from, granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) to dismiss the cause of action alleging legal malpractice as time-barred.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) to dismiss the cause of action alleging legal malpractice as time-barred is denied.

The defendants, Solomon Rosengarten and his law firm, represented the plaintiff, Patrick A. Campbell, in a personal injury action that was commenced in December 1994 in the Supreme Court, Kings County (hereinafter the personal injury action). In September 1995, the personal injury action was transferred to the Civil Court, Kings County, but there were no further proceedings in that court on the action until after 2017. In December 1995, Rosengarten appeared at two depositions on behalf of Campbell in the personal injury action.

In 2016, Campbell executed a consent to change attorneys form and filed it in the Supreme Court, Kings County. Campbell then moved in the Supreme Court to restore the action to the active calendar, for summary judgment on the issue of liability, and for leave to file a note of issue. In an order dated November 22, 2017, the motion was denied without prejudice to refile in the Civil Court, Kings County. Campbell then moved in the Civil Court to restore the action to the active calendar and for summary judgment on the issue of liability. In an order dated December 10, 2019, the Civil Court denied the motion (hereinafter the Civil Court order).

In January 2020, Campbell commenced this action, inter alia, to recover damages for legal malpractice. The defendants moved, among other things, pursuant to CPLR 3211 (a) to dismiss the cause of action alleging legal malpractice as time-barred. In an order dated May 25, 2023, the Supreme Court, inter alia, granted that branch of the motion. Campbell appeals.”

“To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages” (Katsoris v Bodnar & Milone, [*2]LLP, 186 AD3d 1504, 1505 [2020] [internal quotation marks omitted]). A cause of action to recover damages for legal malpractice must be commenced within three years from the time of accrual (see CPLR 203 [a]; 214 [6]). “A cause of action to recover damages for legal malpractice accrues when the malpractice is committed, not when it is discovered” (Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 735 [2015]; see McCoy v Feinman, 99 NY2d 295, 301 [2002]). “ ’A legal malpractice claim accrues when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court’ ” (Lee v Leeds, Morelli & Brown, P.C., 233 AD3d 1072, 1077 [2024], quoting McCoy v Feinman, 99 NY2d at 301; see Farage v Ehrenberg, 124 AD3d 159, 163 [2014]).

Here, the cause of action alleging legal malpractice was premised on the defendants’ neglect of the personal injury action. As pre-note of issue delay of a pending action is not necessarily injurious (see generally Lopez v Imperial Delivery Serv., 282 AD2d 190, 191 [2001]), the actionable injury in this case did not occur until the issuance of the Civil Court order, which prevented the plaintiff from further prosecuting the personal injury action (see Golden Jubilee Realty, LLC v Castro, 196 AD3d 680, 683 [2021]; Frederick v Meighan, 75 AD3d 528, 532 [2010]; see also Flintlock Constr. Servs., LLC v Rubin, Fiorella & Friedman, LLP, 188 AD3d 530, 531 [2020]). Therefore, the cause of action alleging legal malpractice was timely, since it was asserted within three years of the issuance of the Civil Court order.

Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) to dismiss the cause of action alleging legal malpractice as time-barred. Brathwaite Nelson, J.P., Miller, Wooten and Warhit, JJ., concur.”

An analogous question reviewed in Coniglio v Dansker & Aspromonte Assoc. 2025 NY Slip Op 06154 Decided on November 12, 2025 Appellate Division, Second Department is when does the new representation start?

“In 2015, the plaintiff commenced an action to recover damages for podiatric malpractice (hereinafter the underlying action). The underlying action was commenced on the plaintiff’s behalf by the defendants Dansker & Aspromonte Associates, Salvatore Aspromonte, Paul D. Dansker, Douglas Hoffer, and Raymond Maceira (hereinafter collectively the Dansker defendants). In an order dated September 23, 2016, the plaintiff was directed to file a note of issue no later than January 31, 2017. The plaintiff failed to file the note of issue by the January 31, 2017 deadline, and the underlying action was marked disposed. The plaintiff’s motion to restore the underlying action to the active calendar was granted in an order dated April 24, 2017, and the plaintiff was directed to file a note of issue by September 20, 2017. The plaintiff failed to file a note of issue by that deadline and the underlying action was marked disposed as of October 6, 2017.

On June 20, 2018, a consent to change attorney was executed by the plaintiff, the Dansker defendants, and the defendants William Schwitzer & Associates, P.C., and William Schwitzer (hereinafter together the Schwitzer defendants), whereby the Schwitzer defendants were substituted as attorneys of record for the plaintiff in place of the Dansker defendants. In October 2019, the plaintiff moved, inter alia, to have the underlying action restored to the active calendar. This motion was denied, with leave to renew, based on the plaintiff’s failure to include an affidavit of merit. In June 2020, the plaintiff again moved to restore the underlying action to the active calendar. In an order dated October 27, 2021, the Supreme Court denied the plaintiff’s motion and directed dismissal of the underlying action with prejudice. A judgment was subsequently entered on November 17, 2021. On December 9, 2021, the Schwitzer defendants filed a notice of appeal from the order dated October 27, 2021, on the plaintiff’s behalf. Thereafter, the Schwitzer defendants moved, among other things, for leave to withdraw as counsel for the plaintiff in the underlying action.”

“In November 2022, the plaintiff commenced the instant action to recover damages for legal malpractice, fraud, breach of fiduciary duty, and violations of Judiciary Law § 487 against the Dansker defendants, the Schwitzer defendants, and the defendants Demidchik Law Firm, PLLC, and Anna Demidchik (hereinafter together the Demidchik defendants), which the plaintiff alleged had represented him “at a point in time which remains unknown.” The Demidchik defendants moved pursuant to CPLR 2004 to extend their time to appear and answer the complaint and the Demidchik defendants, the Schwitzer defendants, and the Dansker defendants separately moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them. In an order dated October 4, 2023, the Supreme Court granted the separate motions. The plaintiff appeals.”

“Here, the Supreme Court properly directed dismissal of the plaintiff’s legal malpractice cause of action insofar as asserted against the Demidchik defendants (see AG Capital [*2]Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 595; Mid City Elec. Corp. v Peckar & Abramson, 214 AD3d at 648; Siemsen v Mevorach, 160 AD3d at 1005). The plaintiff’s unilateral belief that he was represented by the Demidchik defendants despite his admission that it was impossible to determine whether they had ever represented him was insufficient to establish an attorney-client relationship (see Volpe v Canfield, 237 AD2d at 283; cf. Shan Yun Lin v Lau, 210 AD3d 817, 818; Willoughby Rehabilitation & Health Care Ctr., LLC v Webster, 190 AD3d 887, 889). Further, with respect to the Demidchik defendants, the allegations of the complaint failed to allege actual, ascertainable damages that resulted from the Demidchik defendants’ alleged negligence (see Guliyev v Banilov & Assoc., P.C., 221 AD3d at 590-591; Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d 714, 716).

The Supreme Court also properly directed dismissal of the plaintiff’s legal malpractice cause of action insofar as asserted against the Schwitzer defendants. Viewing the complaint in the light most favorable to the plaintiff (see Leon v Martinez, 84 NY2d at 87-88), it fails to plead specific factual allegations demonstrating that but for the Schwitzer defendants’ alleged negligence, the plaintiff would have prevailed in the underlying action (see Mid City Elec. Corp. v Peckar & Abramson, 214 AD3d at 649; Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1505).

The Supreme Court properly directed dismissal of the plaintiff’s legal malpractice cause of action insofar as asserted against the Dansker defendants pursuant to CPLR 3211(a)(5) (see id. § 214[6]; Farage v Ehrenberg, 124 AD3d 159, 165). The Dansker defendants established that the statute of limitations expired on June 20, 2021, three years after the consent to change attorney was executed, and that they did not act on behalf of the plaintiff in the underlying action after the consent was signed (see CPLR 321[b]; Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d 1085, 1086). The plaintiff failed to raise a question of fact in opposition “as to whether the statute of limitations has been tolled, an exception to the limitations period is applicable, or the plaintiff actually commenced the action within the applicable limitations period” (Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d at 1086 [internal quotation marks omitted]).”