A common inquiry in legal malpractice cases is whether a case was settled by the attorney with authority or without authority. What generally happens is that an attorney negotiates with the other side, reaches a number they like, discuss with the client and find that the client does not like the number. Sometimes the attorney has written something to the defendant that can be taken as assent to the settlement. Trouble.

Guliyev v Banilov & Assoc., P.C. 2026 NY Slip Op 05773 October 7, 2026 Appellate Division, Second Department is a case where attorney authority to settle was addressed.

“The plaintiff commenced an action to recover damages for personal injuries he alleged he sustained as a result of a motor vehicle accident (hereinafter the underlying action) (see Guliyev v Banilov & Assoc., P.C., 221 AD3d 589, 589-590). The defendants in the underlying action moved to compel enforcement of a settlement. The plaintiff opposed, asserting that he did not authorize his counsel to accept the settlement. Following a framed-issue hearing, the Supreme Court granted the motion, concluding the plaintiff’s legal counsel in the underlying action had the authority to settle the underlying action.

Thereafter, in August 2020, the plaintiff commenced an action against the defendant Harlan Wittenstein, who was of counsel to the plaintiff’s counsel in the underlying action, and the defendants Banilov & Associates, P.C., and Nick Banilov (hereinafter together the Banilov defendants) to recover damages for legal malpractice, breach of fiduciary duty, and violations of Judiciary Law § 487 (hereinafter the 2020 action). Wittenstein moved, and the Banilov defendants separately moved, pursuant to CPLR 3211(a) to dismiss the complaint in the 2020 action insofar as asserted against each of them. The plaintiff opposed. In an order dated May 17, 2021 (hereinafter the May 2021 order), the Supreme Court granted the motions and directed dismissal of the complaint in the 2020 action. In a decision and order dated November 1, 2023 (hereinafter the November 2023 decision and order), this Court affirmed the May 2021 order (see Guliyev v Banilov & Assoc., P.C., 221 AD3d 589).

Thereafter, in December 2023, the plaintiff commenced this action against Wittenstein and the Banilov defendants to recover damages for legal malpractice, breach of fiduciary duty, and violations of Judiciary Law § 487. Wittenstein moved, and the Banilov defendants separately moved, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them, contending, among other things, that the causes of action were precluded by the doctrine of res judicata. The plaintiff opposed. In an order dated May 13, 2024, the Supreme Court granted the motions. The plaintiff appeals.

Pursuant to CPLR 3211(a)(5), a party may move to dismiss a cause of action based upon the doctrine of res judicata (see Ciafone v City of New York, 227 AD3d 946, 948). The doctrine precludes a party from relitigating a claim that has been finally adjudicated on the merits (see Park Slope Auto Ctr., Inc. v Papa, 190 AD3d 754, 756; Blake v City of New York, 144 AD3d 1071, 1073). “‘Although, generally, a dismissal for failure to state a cause of action based on the insufficiency of the allegations in the pleading is not a dismissal on the merits, and does not bar the adequate repleading of the claim in a subsequent action, such a determination has preclusive effect as to a new complaint for the same cause of action which fails to correct the defect or supply the omission determined to exist in the earlier complaint'” (Duchemin v Village of E. Hampton, 222 AD3d 715, 718, quoting Park Slope Auto Ctr., Inc. v Papa, 190 AD3d at 756).

Since the allegations in the complaint in this action were virtually identical to the facts as alleged in the complaint in the 2020 action, they did not correct the defects in the complaint in the 2020 action. Thus, the May 2021 order, directing dismissal of the complaint in the 2020 action pursuant to CPLR 3211(a), and the November 2023 decision and order were properly given preclusive effect by the Supreme Court in directing dismissal of the complaint in this action (see Ciafone v City of New York, 227 AD3d at 948; Park Slope Auto Ctr., Inc. v Papa, 190 AD3d at 756).”

Katsoris v Bodnar & Milone, LLP 2026 NY Slip Op 05089 August 26, 2026 Appellate Division, Second Department is a case where the unusual happened. Plaintiff was able to reverse the dismissal of a legal malpractice claim.

“In an action, inter alia, to recover damages for breach of fiduciary duty and legal malpractice, the plaintiff appeals from an order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated June 30, 2021. The order granted the defendant’s motion pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the defendant’s motion which were pursuant to CPLR 3211(a) to dismiss so much of the cause of action alleging breach of fiduciary duty as sought to recover compensatory damages and injunctive relief and the cause of action alleging legal malpractice, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.

In 2018, the plaintiff commenced an action (hereinafter the 2018 action) against the defendant to recover damages for legal malpractice and breach of fiduciary duty as a result of the defendant’s representation of the plaintiff in an underlying matrimonial action against his wife. According to the complaint in the 2018 action, approximately one month after the note of issue was filed in the underlying matrimonial action, the plaintiff terminated the defendant’s services, retained another law firm, and settled the underlying matrimonial action. The defendant moved pursuant to CPLR 3211(a)(7) to dismiss the complaint in the 2018 action. In an order dated December 31, 2018, the Supreme Court granted the defendant’s motion. On appeal, this Court affirmed, determining that the complaint in the 2018 action failed to state a cause of action alleging legal malpractice and that the cause of action alleging breach of fiduciary duty, as pleaded, was duplicative of the legal malpractice cause of action (see Katsoris v Bodnar & Milone, LLP, 186 AD3d 1504, 1505-1507).”

“Here, the defendant failed to establish the elements necessary for the doctrines of res judicata and collateral estoppel to apply (see Blooming Home Realty, LLC v Infinity Holdings Northeast, LLC, 228 AD3d at 817). Contrary to the defendant’s contention, the dismissal of the complaint in the 2018 action was not a final judgment on the merits (see Shahid v Legal Aid Socy., 173 AD3d 1099, 1101), and the issues raised in the complaint in this action were not necessarily decided in the 2018 action (see Blooming Home Realty, LLC v Infinity Holdings Northeast, LLC, 228 AD3d at 817). Moreover, the complaint in this action corrected the relevant omissions in the complaint in the 2018 action (see id.). Accordingly, the Supreme Court should have denied dismissal of the complaint pursuant to CPLR 3211(a)(5).

“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” (Campbell v Law Off. of Solomon Rosengarten, 241 AD3d 771, 772 [internal quotation marks omitted]; see Howlader v Aranow Law, P.C., 242 AD3d 841, 841). Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative (Floral Park Ophthalmology, P.C. v Ruskin Moscou Faltischek, LLP, 216 AD3d 1136, 1137 [internal quotation marks omitted]). “To establish causation, the plaintiff must also show that he or she would have prevailed in the underlying action or would not have incurred any damages but for the attorney’s negligence” (Stinnett v Derek Smith Law Group, PLLC, 241 AD3d 737, 738; see Floral Park Ophthalmology, P.C. v Ruskin Moscou Faltischek, LLP, 216 AD3d at 1137). Moreover, “[a] legal malpractice cause of action is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel” (Valentina v Beckerman, 241 AD3d 751, 753 [internal quotation marks omitted]; see Floral Park Ophthalmology, P.C. v Ruskin Moscou Faltischek, LLP, 216 AD3d at 1137).

Here, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, the complaint sufficiently stated a cause of action to recover damages for legal malpractice (see Postiglione v Sacks & Sacks, LLP, 233 AD3d 719, 721; Kowalski v Gold Benes, LLP, 232 AD3d 869, 871). The complaint alleged that the defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession by, inter alia, failing to provide proper financial advice regarding postcommencement spending, obtain necessary discovery, and designate a needed expert.”

Legal malpractice is always the comparison of the actual outcome of litigation and the hypothetical better outcome had the attorneys acted differently. Putting aside questions of strategy, if the attorneys departed from good practice and the financial outcome is negative for plaintiff then legal malpractice is demonstrated, no?

Often courts hold that the proofs of the hypothetical better outcome are merely speculation on future events. Kolyer v Sallah 2026 NY Slip Op 04287 [251 AD3d 670] July 8, 2026 Appellate Division, Second Department is one such case.

“The plaintiff commenced this action to recover damages for legal malpractice arising out of the defendants’ legal representation of her in a post-divorce matrimonial proceeding. The defendants moved pursuant to CPLR 3211 (a) to dismiss the complaint on the ground, inter alia, of failure to state a cause of action. The plaintiff opposed the motion. In an order dated September 20, 2024, the Supreme Court granted the defendants’ motion. The plaintiff appeals.

“Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” (GLD3, LLC v Albra, 241 AD3d 1288, 1290 [2025] [internal quotation marks omitted]).”

“”Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative” (Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1506 [internal quotation marks omitted]; see Ofman v Richland, 234 AD3d 865, 868 [2025]; Maroulis v Sari M. Friedman, P.C., 153 AD3d 1250, 1251 [2017]).

Here, the Supreme Court properly determined that dismissal of the complaint was warranted pursuant to CPLR 3211 (a) (7), on the ground of failure to state a cause of action. The plaintiff’s allegation that she would have received a larger amount of her former husband’s disability pension but for the defendants’ negligence was conclusory and speculative under the circumstances and in light of the evidentiary material submitted and considered on the defendants’ motion (see York v Frank, 209 AD3d 804, 807 [2022]; Denisco v Uysal, 195 AD3d 989, 991 [2021]; Maroulis v Sari M. Friedman, P.C., 153 AD3d at 1252).”

Benyaminpour v Lipton 2026 NY Slip Op 05072 August 26, 2026 Appellate Division, Second Department is the kind of appellate decision where the outlying claims are trimmed and the central claim is wiped out. Here, accounting malpractice was dismissed as late.

“In November 2020, the plaintiff commenced this action against the defendants, Alan Lipton, an accountant, and his accounting firm, Lipton & Associates, LLP, arising out of accounting services provided by the defendants to the plaintiff and his former business partners in two business ventures related to real property (hereinafter the business entities). In an amended complaint, the plaintiff alleged, inter alia, causes of action sounding in fraud, aiding and abetting fraud, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, breach of contract, civil conspiracy, and professional negligence. Prior to commencing this action, the plaintiff and his brother commenced a different action in 2014 against the same former business partners, among others, alleging, inter alia, that the former business partners “wrongfully induced,” “fraudulently induced,” and “directed” Lipton to incorrectly complete tax returns and issue K-1s with regard to the business entities, as part of a scheme to eliminate the plaintiff’s interests in said entities and extinguish certain liabilities owed to the plaintiff. In sum and substance, the plaintiff has repeated those allegations in this action against the defendants.

Following the commencement of this action, the defendants moved pursuant to CPLR 3211(a) to dismiss the amended complaint. The plaintiff opposed. In an order entered December 13, 2021, the Supreme Court granted the motion. The plaintiff appeals.”

“Contrary to the plaintiff’s contention, the Supreme Court properly granted, pursuant to CPLR 3211(a)(7), those branches of the defendants’ motion which were to dismiss the causes of action alleging fraud, aiding and abetting fraud, breach of fiduciary duty, and aiding and abetting breach of fiduciary duty as duplicative of the cause of action alleging professional negligence in the nature of accounting malpractice. The causes of action arose from the same set of facts and do not allege distinct damages (see Schwartz v Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP, 123 AD3d 901, 902).

“On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired” (Collins-Genova v Louros, 204 AD3d 748, 749 [internal quotation marks omitted]; see Weinberg Real Estate Affiliates, LLC v Weinberg, 231 AD3d 775, 776). “If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period” (Weinberg Real Estate Affiliates, LLC v Weinberg, 231 AD3d at 776 [internal quotation marks omitted]).

“An action to recover damages for accounting malpractice must be commenced within three years” (Getzel Schiff & Pesce, LLP v Shtayner, 233 AD3d 758, 759; see CPLR 214[6]; Schwartz v Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP, 155 AD3d at 803). “‘A cause of action alleging professional malpractice against an accountant accrues upon the client’s receipt of the accountant’s work product'” (Getzel Schiff & Pesce, LLP v Shtayner, 233 AD3d at 759, quoting Schwartz v Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP, 155 AD3d at 803). Here, the defendants established, prima facie, that the cause of action alleging professional negligence in the nature of accounting malpractice accrued more than three years before the plaintiff commenced this action. In opposition, the plaintiff failed to raise a question of fact as to whether this action was commenced within the applicable statute of limitations period, or whether the statute of limitations was tolled or otherwise inapplicable (see id.). Accordingly, the Supreme Court properly directed dismissal of the cause of action alleging professional negligence in the nature of accounting malpractice as time-barred pursuant to CPLR 3211(a)(5).”

Pires v Daniella Levi & Assoc., P.C. 2026 NY Slip Op 05330 September 16, 2026

Appellate Division, Second Department illustrates a very common legal malpractice issue that comes up in the personal injury area. Plaintiff is injured at work and hires a workers’ compensation attorney. That attorney either explicitly or implicitly tells the client that it does WC work only and will not bring a 3d party action against the landowner, or the building owner, or, in this case, other construction parties. The 3d party personal injury action is not brought and a legal malpractice case ensues. The cases are often lost when only the WC lawfirm is in the caption, and as here, also lost when there is a PI lawyer who is in/not in the case.

“In an action to recover damages for legal malpractice, the plaintiff appeals, and the defendants Daniella Levi & Associates, P.C., and Daniella Levi cross-appeal, from an order of the Supreme Court, Kings County (Joy F. Campanelli, J.), dated October 2, 2024. The order, insofar as appealed from, granted the motion of the defendants Ugalde & Rzonca, LLP, Francisco A. Ugalde, and Tadeusz Rzonca pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them. The order, insofar as cross-appealed from, denied the motion of the defendants Daniella Levi & Associates, P.C., and Daniella Levi pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from; and it is further,

ORDERED that the order is reversed insofar as cross-appealed from, on the law, and the motion of the defendants Daniella Levi & Associates, P.C., and Daniella Levi pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them is granted;”

“On May 25, 2021, the plaintiff retained the defendant Ugalde & Rzonca, LLP (hereinafter Ugalde), to represent him in workers’ compensation proceedings before the Workers’ Compensation Board. A letter of engagement signed by the plaintiff stated that Ugalde “does not handle Personal Injury claims, which may be related to the Workers’ Compensation claim,” and that Ugalde would “not represent [the plaintiff] in any [o]f those types of claims at this time.” Ugalde referred the plaintiff to the defendant Daniella Levi & Associates, P.C. (hereinafter Levi & Associates), to consult with regarding a possible personal injury claim. On or around the same day, the defendant Daniella Levi allegedly called the plaintiff and asked him about his accident. Levi advised the plaintiff that, in her opinion, he “had no case” except for a workers’ compensation claim.

In February 2024, the plaintiff commenced this action to recover damages for legal malpractice based on the defendants’ alleged failure, inter alia, to serve a timely notice of claim. Ugalde and the defendants Francisco A. Ugalde and Tadeusz Rzonca (hereinafter collectively the Ugalde defendants) moved, and Levi & Associates and Levi (hereinafter together the Levi defendants) separately moved, pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against each of them. In an order dated October 2, 2024, the Supreme Court granted the Ugalde defendants’ motion and denied the Levi defendants’ motion. The plaintiff appeals, and the Levi defendants cross-appeal.”

“Contrary to the plaintiff’s contention, the Supreme Court properly granted the Ugalde defendants’ motion pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them. “Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence utterly refutes [the] plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Bernstein v Jacobson, 238 AD3d at 1103 [internal quotation marks omitted]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326). “To constitute documentary evidence, the evidence must be unambiguous, authentic, and undeniable, such as judicial records and documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable” (Yan Ping Xu v Van Zwienen, 212 AD3d 872, 874 [citations and internal quotation marks omitted]). Here, the engagement letter signed by the plaintiff, the authenticity of which is not controverted, utterly refuted the plaintiff’s allegations that the Ugalde defendants’ representation of him was not limited to his workers’ compensation claim (see Getzel Schiff & Pesce, LLP v Shtayner, 233 AD3d 758, 759; Turner v Irving Finkelstein & Meirowitz, LLP, 61 AD3d 849, 850).”

“”‘Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery'” (Oak Beverages, Inc. v D.G. Yuengling & Son, Inc., 245 AD3d 93, 101, quoting Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142). Here, viewing the amended complaint in the light most favorable to the plaintiff, the allegations were insufficient to state a cause of action against the Levi defendants. The plaintiff failed to plead specific factual allegations supporting a claim that, but for the Levi defendants’ alleged negligence, the plaintiff would have prevailed in an action against the City of New York (see Coniglio v Dansker & Aspromonte Assoc., 243 AD3d 628, 631-632; Mid City Elec. Corp. v Peckar & Abramson, 214 AD3d 646, 649).”

Santostefano v Zabell 2026 NY Slip Op 05202 September 2, 2026 Appellate Division, Second Department had claims for both legal malpractice and violation of judiciary law 487. We reviewed the “speculative” nature of the legal malpractice claims previously. The Judiciary Law claims got but a short analysis with no real illuminating detail.

“In April 2018, the plaintiff commenced this action against the defendants, Zabell & Associates, P.C., and Saul Zabell, a partner at the firm (hereinafter together the defendants), inter alia, to recover damages for legal malpractice arising out of the defendants’ representation of him at a hearing on charges brought against him by his employer, The Middle Country Central School District (hereinafter the underlying proceeding). The plaintiff alleged, among other things, that the defendants negligently advised the plaintiff to settle the underlying proceeding. The defendants moved for summary judgment dismissing the complaint. The plaintiff opposed. In an order dated April 27, 2022, the Supreme Court granted the defendants’ motion. The plaintiff appeals.”

“In addition, the Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging violation of Judiciary Law § 487. Judiciary Law § 487 imposes civil liability on any attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive . . . any party.” Here, the defendants established, prima facie, that they did not engage in any deceit or collusion with the intent to deceive the plaintiff (see Bill Birds, Inc. v Stein Law Firm, P.C., 35 NY3d 173, 179; Garanin v Hiatt, 239 AD3d 710, 711-712). In opposition, the plaintiff failed to raise a triable issue of fact.”

Often, a legal malpractice case hinges on what a court would have done if there were no settlement, or if a certain witness were called, or if a certain document had been offered for admission. Courts routinely refuse to “speculate” what would have happened if. This is not always true in other types of litigation. Example: If there had been no breach of contract in a commercial setting, what would next years’ profits have been? Example, after being struck by an auto, what will the plaintiff’s future medical treatments require and how much will they cost?

In any event, Santostefano v Zabell 2026 NY Slip Op 05202 September 2, 2026 Appellate Division, Second Department was dismisssed for speculation.

“In April 2018, the plaintiff commenced this action against the defendants, Zabell & Associates, P.C., and Saul Zabell, a partner at the firm (hereinafter together the defendants), inter alia, to recover damages for legal malpractice arising out of the defendants’ representation of him at a hearing on charges brought against him by his employer, The Middle Country Central School District (hereinafter the underlying proceeding). The plaintiff alleged, among other things, that the defendants negligently advised the plaintiff to settle the underlying proceeding. The defendants moved for summary judgment dismissing the complaint. The plaintiff opposed. In an order dated April 27, 2022, the Supreme Court granted the defendants’ motion. The plaintiff appeals.

A plaintiff in an action alleging legal malpractice must prove that the defendant attorney’s failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession proximately caused the plaintiff to suffer damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; Sang Seok Na v Schietroma, 163 AD3d 597, 598). “A defendant seeking summary judgment dismissing a legal malpractice cause of action has the burden of establishing prima facie that he or she did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages” (Provenzano v Cellino & Barnes, P.C., 207 AD3d 763, 764 [internal quotation marks omitted]; see Bakcheva v Law Offs. of Stein & Assoc., 169 AD3d 624, 625). If the defendant meets that burden, the burden shifts to the plaintiff to raise a triable issue of fact. To establish proximate causation, the plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the defendant attorney’s negligence (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 757). “‘Mere speculation about a loss resulting from an attorney’s alleged omission is insufficient to sustain a prima facie case of legal malpractice'” (Alaimo v Mongelli, 93 AD3d 742, 743, quoting Humbert v Allen, 89 AD3d 804, 806).

Here, the defendants established, prima facie, that the plaintiff did not sustain any actual and ascertainable damages (see Richmond Holdings, LLC v David S. Frankel, P.C., 150 AD3d 1168, 1168). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s claims that he could have obtained a more favorable outcome at a hearing had he declined to enter into the settlement are conclusory and speculative (see Casey v Exum, 219 AD3d 456, 457; Katsoris v Bodnar & Milone, LLP, 186 AD3d 1504, 1506).”

Blank v. Petrosyants. 2026 NY Slip Op 05074 August 26, 2026 Appellate Division, Second Department is mostly about the business fight between cater co-venturers, but also involved an attorney. As often happens, there is only one attorney in the business negotiations, and Plaintiff would like to sue, but lacks privity.

“In an action, inter alia, to recover damages for breach of contract and legal malpractice, the plaintiffs appeal, and the defendants Zhan Petrosyants and Robert Petrosyants cross-appeal, from an order of the Supreme Court, Kings County (Leon Ruchelsman, J.), dated November 1, 2023. The order, insofar as appealed from, granted that branch of the motion of the defendant Akiva Ofshtein which was for summary judgment dismissing the cause of action alleging legal malpractice insofar as asserted against him by the plaintiff Vadim Shubaderov. The order, insofar as cross-appealed from, denied those branches of the motion of the defendants Zhan Petrosyants and Robert Petrosyants which were for summary judgment dismissing the cause of action alleging fraud insofar as asserted by the plaintiffs Emil Blank and Vadim Shubaderov, the cause of action alleging promissory estoppel insofar as asserted by the plaintiff Vadim Shubaderov, and the cause of action alleging breach of contract insofar as asserted against the defendant Zhan Petrosyants by the plaintiffs Emilya Blank and Vadim Shubaderov.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion of the defendants Zhan Petrosyants and Robert Petrosyants which was for summary judgment dismissing the cause of action alleging breach of contract insofar as asserted against the defendant Zhan Petrosyants by the plaintiff Emilya Blank, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

In August 2019, the plaintiffs Emil Blank, Vadim Shubaderov, and Oleg Egorov commenced this action against, among others, the defendants Zhan Petrosyants, Robert Petrosyants, and Akiva Ofshtein. The complaint alleged that beginning in late 2013, at the behest of Zhan Petrosyants and Robert Petrosyants (hereinafter together the Petrosyants defendants), Emil Blank, Shubaderov, and Egorov invested monies in a catering venture known as Prime One Catering, Inc., but the monies were improperly diverted by the Petrosyants defendants to other sources in which Emil Blank, Shubaderov, and Egorov had no interest. The complaint asserted, inter alia, causes of action alleging breach of contract, fraud, legal malpractice, and promissory estoppel.”

“”The elements of a cause of action sounding in legal malpractice include the existence of an attorney-client relationship between the plaintiff and the defendant” (Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP, 129 AD3d 790, 792). “An attorney-client relationship may exist in the absence of a retainer or fee” (Willoughby Rehabilitation & Health Care Ctr., LLC v Webster, 190 AD3d 887, 889). “In determining the existence of an attorney-client relationship, a court must look to the actions of the parties to ascertain the existence of such a relationship” (Wei Cheng Chang v Pi, 288 AD2d 378, 380). “[A] party’s unilateral belief does not confer upon him or her the status of client. Rather, to establish an attorney-client relationship, there must be an explicit undertaking to perform a specific task” (Willoughby Rehabilitation & Health Care Ctr., LLC v Webster, 190 AD3d at 889; see Volpe v Canfield, 237 AD2d 282, 283).

Here, Ofshtein established, prima facie, that no attorney-client relationship existed between him and Shubaderov by submitting deposition testimony demonstrating that Shubaderov had only a unilateral belief that Ofshtein was his attorney (see Willoughby Rehabilitation & Health Care Ctr., LLC v Webster, 190 AD3d at 889; Volpe v Canfield, 237 AD2d at 283) and a retainer agreement demonstrating that Ofshtein was the attorney for Prime One Catering, Inc., and not Shubaderov (see Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 562; Mann v Sasson, 186 AD3d 823, 824). In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of Ofshtein’s motion which was for summary judgment dismissing the cause of action alleging legal malpractice insofar as asserted against him by Shubaderov.”