“”An action to recover damages for legal malpractice must be commenced within three years after the accrual of the cause of action” (Bullfrog, LLC v Nolan, 102 AD3d 719, 719-720; see CPLR 214[6]).”  Thus starts and ends most legal malpractice case discussions of the onset of the statute of limitations.  That date might be extended by continuous representation.  However, in Golden Jubilee Realty, LLC v Castro, 2021 NY Slip Op 04541,Decided on July 28, 2021, Appellate Division, Second Department the Court applied a very rare exception.

“”In moving [*2]to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, the moving defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable” (Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d 788, 789 [citations omitted]). “An action to recover damages for legal malpractice must be commenced within three years after the accrual of the cause of action” (Bullfrog, LLC v Nolan, 102 AD3d 719, 719-720; see CPLR 214[6]). “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'” (McCoy v Feinman, 99 NY2d 295, 301, quoting Ackerman v Price Waterhouse, 84 NY2d 535, 541). Under the circumstances of this case, the statute of limitations did not begin to run until specific performance was awarded in the Karpen action, on April 2, 2015 (see Frederick v Meighan, 75 AD3d 528, 531-532). The instant action was commenced on December 29, 2017. Thus, Pacht failed to meet his initial burden of establishing that the plaintiffs’ cause of action to recover damages for legal malpractice was time-barred.”

Merely having a good legal malpractice claim is not enough.  Plaintiff must properly prosecute the claim.  Forgetting the potential irony of losing a legal malpractice case for failing to follow a court rule, Allstar Elecs., Inc. v DeLuca  2020 NY Slip Op 07018 [188 AD3d 1121]
November 25, 2020 Appellate Division, Second Department demonstrates the importance of discovery responses.

“The nature and degree of the penalty to be imposed pursuant to CPLR 3126 against a party who refuses to comply with court-ordered discovery is a matter within the discretion of the court” (Smookler v Dicerbo, 166 AD3d 838, 839 [2018]; see Pastore v Utilimaster Corp., 165 AD3d 685, 686 [2018]; Quinones v Long Is. Jewish Med. Ctr., 90 AD3d 632 [2011]). The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands or court-ordered discovery was the result of willful and contumacious conduct (see Ozeri v Ozeri, 135 AD3d 838, 839 [2016]; McArthur v New York City Hous. Auth., 48 AD3d 431 [2008]). “The willful and contumacious character of a party’s conduct can be inferred from the party’s repeated failure to respond to demands or to comply with discovery orders, and the absence of any reasonable excuse for these failures” (Tos v Jackson Hgts. Care Ctr., LLC, 91 AD3d 943, 943-944 [2012]; see Smookler v Dicerbo, 166 AD3d at 839; Commisso v Orshan, 85 AD3d 845 [2011]).

Here, contrary to the plaintiff’s contention, the willful and contumacious character of its conduct could properly be inferred from its repeated failures, without an adequate excuse, to timely respond to discovery demands and to comply with the Supreme Court’s orders to provide outstanding discovery and set a date for the plaintiff’s deposition (see Marino v Armogan, 179 AD3d 664, 666 [2020]; Broccoli v Kohl’s Dept. Stores, Inc., 171 AD3d 846, 847-848 [2019]; Smookler v Dicerbo, 166 AD3d at 839-840; Montemurro v Memorial Sloan-Kettering Cancer Ctr., 94 AD3d 1066, 1066-1067 [2012]).”

Legal malpractice is unique;  this phrase recurs he because claims against attorneys are subjected to a greater scrutiny and are granted a much higher level of latitude.  Consider whether a physician is ever granted a dismissal because the patient is “sophisticated”?

Yet, in  Scarola Malone & Zubatov LLP v Ellner    
2021 NY Slip Op 31199(U), April 8, 2021 Supreme Court, New York County
Docket Number: 651324/2017 Judge: Anthony Cannataro that is what happens.

“Where a sophisticated client imposes a strategic decision on counsel, the client’s action absolves the attorney from liability for malpractice (Town of North Hempstead v Winston & Strawn, LLP, 28 AD3d 746  [2006]; Stolmeier v Fields, 280 AD2d 342 [2001]). Additionally, with regard to strategic decisions “the selection of one among several reasonable courses of action does not constitute malpractice” (Rosner v Paley, 65 NY2d 736, 738 [1985]). “Attorneys may select among reasonable courses of action in prosecuting their clients’ cases without thereby committing malpractice … so that a purported malpractice claim that amounts only to a client’s criticism of counsel’s strategy may be dismissed” (Dweck Law Firm, LLP v Mann, 283 AD2d 292, 293 [2001 ]). Hindsight arguments concerning selection of one of several reasonable courses of action do not state a viable cause of action for malpractice (Brookwood Cos., Inc. v Alston & Bird LLP, 146 AD3d 662, 667 [2017]).

In this case, the Lightbox defendants’ counterclaims stem from the Scarola firm’s representation of them in a business dispute and litigation related to a joint venture agreement between the Lightbox defendants and a nonparty entity named 3rd Home Limited. The counterclaims allege that the Scarola firm made several mistakes during the course of its representation of the Lightbox defendants, specifically: failing to advise the Lightbox defendants to accept a potential buyout from 3rd Home Limited; recommending that the Lightbox defendants litigate in an “uber aggressive” manner rather than advising them to settle, causing the Lightbox defendants to “waste” money on experts; failing to provide the Lightbox defendants with an estimate of future legal fees and expenses; and advising the Lightbox defendants to activate a website, which resulted in their being subject to claims for, among other things, cybersquatting and
trademark infringement.

Lightbox’ s allegations relate primarily to strategic decisions made during the course of the Scarola firm’s representation. Regarding the allegations that the Scarola firm took an overly aggressive approach, the documentary evidence shows that the Lightbox defendants consistently rejected attempts to settle, for reasons having nothing
to do with any advice received from the Scarola firm. While Mr. Ellner occasionally expressed interest in settling with 3rd Home Limited, when he did so, it was his settlement demands that could best be characterized as aggressive, and he rejected actual offers of settlement. Additionally, it is clear from the pleadings that when the
Lightbox defendants retained the Scarola firm, they wanted to “preserve and grow” the joint venture business and were not interested in a buyout.

Mr. Ellner is a sophisticated businessman, with degrees from Wharton and the University of Chicago as well as an impressive business background. The Scarola firm cannot be held liable for failing to counsel the Lightbox defendants regarding an objective that they did not support. There is also no allegation that there was a buyout
or settlement offer that would have been made and accepted but for the Scarola firm’s advice. The damages incurred by loss of a potential buyout are completely speculative (see Heritage Partners, LLC v Stroock & Stroock & Lavan LLP, 133 AD3d 428 [2015] [dismissing legal malpractice claim where damages were based on multiple layers of
speculation]; see also Zarin v Reid & Priest, 184 AD2d 385, 388 [1992] [rejecting a claim for damages which are “too speculative and incapable of being proven with any reasonable certainty”]). As for damages, most of the legal fees charged by the Scarola firm were incurred after the Lightbox defendants decided to reject the 3rd Home Limited’ s settlement offer. “

It really does not matter how many times one goes to the well;  there is either water or no water.  In Armatas v Kestenbaum 2020 NY Slip Op 07846 [189 AD3d 1319] December 23, 2020 Appellate Division, Second Department a city attorney-defendant kept at it until the case was dismissed on all grounds, actual or academic.

“In 2008, the plaintiff commenced an action in the United States District Court for the Eastern District of New York (hereinafter the District Court), alleging, inter alia, that the City of New York, the New York City Police Department, and individual police officers (hereinafter collectively the City defendants) violated his constitutional rights, violated 42 USC § 1983, and committed the state torts of false arrest, malicious prosecution, and intentional infliction of emotional distress. The District Court granted the City defendants’ motion for summary judgment dismissing the complaint. In June 2016, the District Court barred the plaintiff from filing any additional papers in that action.

Thereafter, the plaintiff commenced this action in the Supreme Court, Queens County, against, among others, the defendant Qiana Smith-Williams (hereinafter the defendant), an attorney for the New York City Law Department who represented the City defendants in the federal action. The complaint alleges that the defendant violated Judiciary Law § 487 by, inter alia, filing fraudulent papers in the District Court, making false statements in the District Court, and representing clients that she knew were defrauding the District Court.

The defendant moved, among other things, pursuant to CPLR 3211 (a) (5) to dismiss the complaint insofar as asserted against her as time-barred and as precluded by the doctrine of collateral estoppel. In an order dated February 7, 2017, the Supreme Court, inter alia, granted that branch of the defendant’s motion which was to dismiss the complaint insofar as asserted against her as time-barred to the extent that the complaint was based on events that occurred one year and 90 days prior to September 7, 2016. The court denied with leave to renew that branch of the [*2]defendant’s motion which was to dismiss the complaint insofar as asserted against her as precluded by the doctrine of collateral estoppel.

The defendant then renewed that branch of her motion which was to dismiss the complaint insofar as asserted against her as precluded by the doctrine of collateral estoppel, and moved for leave to reargue that branch of her motion which was to dismiss the complaint insofar as asserted against her as time-barred. In an order dated September 12, 2017, the Supreme Court, upon renewal, granted that branch of the defendant’s motion which was to dismiss the complaint insofar as asserted against her as precluded by the doctrine of collateral estoppel. Further, the court granted leave to reargue, and, upon reargument, in effect, vacated so much of the order dated February 7, 2017, as granted that branch of the defendant’s motion which was to dismiss the complaint insofar as asserted against her as time-barred to the extent that the complaint was based on events that occurred one year and 90 days prior to September 7, 2016, and thereupon granted that branch of the defendant’s motion in its entirety.

The plaintiff appeals from so much of the order as, upon renewal, granted that branch of the defendant’s motion which was to dismiss the complaint insofar as asserted against her as precluded by the doctrine of collateral estoppel. However, the plaintiff does not challenge the Supreme Court’s determination, upon reargument, that the action was time-barred by the applicable statute of limitations. Accordingly, the plaintiff’s contention that the court should not have, upon renewal, granted that branch of the defendant’s motion which was to dismiss the complaint insofar as asserted against her as precluded by the doctrine of collateral estoppel is academic.”

Burke, Albright, Harter & Rzepka LLP v Sills  2020 NY Slip Op 05322 [187 AD3d 1507] October 2, 2020 Appellate Division, Fourth Department is an upstate slow legal fee – legal malpractice estate claim that percolated for 16 years before ending abruptly.

“In 2016, the third attorney to represent the coexecutors was granted permission to withdraw. In 2017, Robert passed away, and no further action occurred on the case until March 2018, when an attorney purporting to represent either defendant or decedent’s estate submitted a letter to plaintiffs’ counsel. That attorney ultimately filed a notice of appearance on behalf of, inter alia, defendant in May 2018. On June 11, 2018, plaintiffs served upon defendant a demand to resume prosecution (see CPLR 3216). After defendant failed to respond to the demand within the requisite 90-day period, plaintiffs moved to dismiss the counterclaims pursuant to CPLR 3216.

Rather than oppose the motion, defendant cross-moved for, inter alia, leave to serve a third amended answer with counterclaims on plaintiffs, “collectively and individually,” and for leave to serve a third-party complaint against an insurance company and plaintiffs’ defense lawyers, “individually and collectively.” Defendant sought to assert a counterclaim and cause of action under Judiciary Law § 487. The court granted the motion and denied the cross motion, and we now affirm.

Contrary to defendant’s contention, the court properly granted the motion and dismissed all of defendant’s existing counterclaims. Defendant provided no explanation for her failure to respond to the 90-day demand and, in our view, that failure established a valid basis for dismissal. Although the court retains some discretion in determining whether to dismiss a cause of action or counterclaim under CPLR 3216, that section “presupposes that [the party opposing dismissal will] tender[ ] some excuse in response to the motion in an attempt to satisfy the statutory threshold” (Baczkowski v Collins Constr. Co., 89 NY2d 499, 504 [1997] [emphasis added]; see Burridge v Gaines, 281 AD2d 967, 967 [4th Dept 2001]; see also Walker v City of New York, 87 AD3d 734, 735 [2d Dept 2011]; Grullon v Henry, 7 AD3d 342, 343 [1st Dept 2004]). “If [a party] unjustifiably fails to comply with the 90-day requirement, knowing full well that the action can be saved simply by filing a note of issue but is subject to dismissal otherwise, the culpability for the resulting dismissal is squarely placed at the door of [that party] or [its] counsel” (Baczkowski, 89 NY2d at 504-505).

Although defendant further contends that the court erred in denying the cross motion, defendant’s contentions are limited to the court’s denial of that part of the cross motion that sought leave to serve a third amended answer with further counterclaims against plaintiffs only. Defendant does not address the court’s denial of that part of the cross motion that sought leave to add the individual attorneys in plaintiffs’ firm to the instant action or that part of the cross motion that sought leave to serve a third-party complaint against an insurance company and the attorneys representing plaintiffs in this action. We thus deem those issues abandoned (see Ciesinski v Town of Aurora, 202 AD2d 984, 984 [4th Dept 1994]).

It is well settled that “[l]eave to amend the pleadings ‘shall be freely given’ absent prejudice or surprise resulting directly from the delay” (McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983], quoting CPLR 3025 [b]). Here, there was a 14-year delay between the time the complaint was filed and the time defendant sought leave to amend the answer to add the new counterclaim. Nevertheless, “ '[m]ere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine’ ” (Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]). “Prejudice may be found where a party has incurred some change in position or hindrance in the preparation of its case which could have been avoided had the original pleading contained the proposed amendment” (Whalen v Kawasaki Motors Corp., U.S.A., 92 NY2d 288, 293 [1998]).

We conclude that plaintiffs established significant prejudice resulting from the delay inasmuch as their primary witness died in 2017 and another significant witness suffers from dementia and is unable to recall the events underlying the proposed amendment (see e.g. Slavet v Horton Mem. Hosp., 227 AD2d 465, 466 [2d Dept 1996]; Chemicraft Corp. v Honeywell Protection Servs., 161 AD2d 250, 250 [1st Dept 1990]). Moreover, defendant has failed to offer any excuse for the delay in attempting to assert the new counterclaim. “Where[, as here,] there has been an extended delay in moving to amend, the party seeking leave to amend must establish a reasonable excuse for the delay” (Jablonski v County of Erie, 286 AD2d 927, 928 [4th Dept 2001] [emphasis added]; see Raymond v Ryken, 98 AD3d 1265, 1266 [4th Dept 2012]; J.B. Stauffer Constr. Co., Inc. v Mailloux, 35 AD3d 1207, 1207 [4th Dept 2006]). “Given [defendant’s] extensive and unexplained delay in seeking to amend [the second amended answer] based on facts that were known to [defendant] since the onset of the litigation” and the substantial prejudice to plaintiffs resulting from the delay, we see no basis to disturb the court’s discretionary determination to deny the cross motion (Schelchere v Halls, 120 AD3d 788, 788 [2d Dept 2014]; see Raymond, 98 AD3d at 1266; Gross, Shuman, Brizdle & Gilfillan v Bayger, 256 AD2d 1187, 1187 [4th Dept 1998]).”

United States Life Ins. Co. in the City of N.Y. v Horowitz  2021 NY Slip Op 01877 [192 AD3d 613] March 25, 2021 Appellate Division, First Department os the rare case in which the Appellate Division soundingly finds that a Judiciary Law § 487 claim is stated.

“Judiciary Law § 487 (1) provides that an attorney who is “guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party . . . [i]s guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action.” Judiciary Law § 487 does not require a showing of detrimental reliance (see Bill Birds, Inc. v Stein Law Firm, P.C., 35 NY3d 173, 178 [2020]). Contrary to the holding in Blum v Perlstein (47 AD3d 741 [2d Dept 2008]) which cited to this Court’s decisions in Berkowitz v Fischbein, Badillo, Wagner & Harding (7 AD3d 385 [1st Dept 2004]) and Argyle Capital Mgt. Corp. v Lowenthal, Landau, Fischer & Bring (261 AD2d 282 [1st Dept 1999]), none of which dealt with a violation of Judiciary Law § 487, a decision we decline to follow because Judiciary Law § 487 is a statute that has its origins in the penal law and its “intent [is] to enforce an attorney’s special obligation to protect the integrity of the courts and foster their truth-seeking function” (Amalfitano v Rosenberg, 12 NY3d 8, 14 [2009]), here, the release did not bar plaintiff’s claim under Judiciary Law § 487 (see Schindler v Issler & Schrage, 262 AD2d 226, 228-229 [1st Dept 1999] [allowing claim based on violation of Judiciary Law § 487 to proceed despite settlement of the underlying action]). Here, the deceit and collusion were in obtaining the settlement and release. Plaintiff’s [*2]claim alleges deceitful conduct in the Kings County action where the attorney-defendants purportedly bribed a nonparty witness (by giving him cash and a Rolex watch) to make false statements that they later presented to plaintiff to exact a favorable settlement and obtain a release. Furthermore, the release covers only claims that could have been asserted in connection with the policy and those claims that were known to it at the time. Since it is alleged that the attorney defendants violated Judiciary Law § 487, and engaged in a separate fraud from the subject of the release (Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 NY3d 269, 276 [2011]), the motion to dismiss plaintiff’s claims against the attorney defendants for violation of Judiciary Law § 487 (1) was properly denied. Concur—Manzanet-Daniels, J.P., Mazzarelli, Mendez, Shulman, JJ. “

The Big Accounting firms in the US dispense CPA and some legal advice on taxes.  How to parse one from the other is discussed in Boesky v Levine  2021 NY Slip Op 02059 [193 AD3d 403] April 1, 2021 Appellate Division, First Department.

“The motion court properly dismissed as time barred the legal malpractice claims that pertain to legal services received from Levine and Herrick Feinstein from 2002-2005. The complaint does not allege that at the time defendant Levine provided legal services to plaintiffs regarding structuring and investing in the tax shelters from 2002-2005, the parties contemplated future services in connection therewith. Nor does the complaint contain allegations that there was continuous representation from 2002 forward regarding the structuring of the tax shelters (Johnson v Proskauer Rose LLP, 129 AD3d 59, 67-68 [1st Dept 2015]). However, the complaint sufficiently alleges that Levine subsequently represented plaintiffs in connection with audits by the Internal Revenue Service (IRS) and New York Department of Taxation and Finance (NYDTF) and in tax litigation continuously from May 16, 2008, the date Boesky signed a power of attorney permitting Levine to represent him before the NYDTF, through 2016. Whether the advice Levine allegedly dispensed with regard to the audits and litigation was provided solely in his capacity as tax matters partner for one of the limited liability companies in which plaintiffs invested, and not as their attorney, is an issue of fact that cannot be resolved on the pleadings.

The claim should also be reinstated against Herrick Feinstein (see Waggoner v Caruso, 68 AD3d 1, 6-7 [1st Dept 2009] [finding that sound policy considerations support the tolling of the statute of limitations under the continuous representation doctrine while the representation of the same matter in which the malpractice is alleged is ongoing], affd 14 NY3d 874 [2010]). This Court, in HNH Intl., Ltd. v Pryor Cashman Sherman & Flynn LLP (63 AD3d 534, 535 [2009]), held that the statute of limitations was tolled as to a malpractice claim against a law firm because the attorney(s) who handled the case continued to represent the plaintiffs in the same matter, albeit while at different law firms. Additionally, the claim should be reinstated against Moritt Hock for the period from September 2012 through 2016, when Levine was a partner at the firm and was [*2]allegedly still representing plaintiffs in connection with the audits and tax litigation. The complaint sufficiently alleges that Levine, while at Moritt, continued to advise plaintiffs regarding the tax litigation and sufficiently alleges that but for Levine’s continued failure to properly advise them of the weaknesses of their case, they would have settled with the IRS to reduce their financial exposure and litigation costs.”

The statute of limitations is approaching, yet the underlying case is not yet finished. How to handle this problem?  Aydiner v Karasik Law Group, P.C.  2021 NY Slip Op 30781(U) March 15, 2021 Supreme Court, Richmond County Docket Number: 151944/2020 Judge: Ralph J. Porzio catalogues the possibilities.

“The key question in the instant Motion is whether Plaintiffs’ legal malpractice cause of action is premature based on Plaintiffs’ pending Order to Show Cause with respect to the Underlying Foreclosure Action. This Court finds that the answer to this question is yes.
In Spitzer v. Newman, the plaintiff brought an action for legal malpractice against his attorney who represented him during loan transactions with borrowers. (See Spitzer v. Newman, 163 AD3d 1026, 1027 [2d Dept 2018]). The Supreme Court denied the attorney’s motion to dismiss and stayed the action pending the resolution of the plaintiff’s underlying action against  the borrowers. (See id.) The Appellate Division, Second Department held that to the extent that
the plaintiff’s action might have been premature since it could not be determined that the defendants’ alleged legal malpractice proximately caused him to sustain damages, the Supreme Court providently exercised its discretion by staying the case instead of dismissing it under CPLR §3211(a)(7). (See id. at 1028).

In the case of Kahan Jewelry Corp v. Rosenfeld, the Supreme Court dismissed a plaintiff’s legal malpractice action, with leave to replead, against defendants based on their representation of plaintiff in a mortgage foreclosure action. (See Kahan Jewelry Corp. v. Rosenfeld, 295 AD2d 261, 261 [1st Dept 2002]). The Appellate Division, First Department upheld the Supreme Court’s decision since the foreclosure action was still pending at the time and the plaintiff therefore had not suffered any actual damages attributable to the alleged malpractice. (See id.). In Parametric Capital Mgt., LLC v. Lacher, the Appellate Division, First Department dismissed the Plaintiff’s legal malpractice claim in part since the subject matter of the services provided by the defendant attorneys was still pending and there was no adverse decision that but for defendants’ alleged negligence, would have been more favorable to plaintiffs. (See Parametric Capital Mgt., LLC v. Lacher, 15 AD3d 301, 302 [1st Dept 2005]).

Here, the Court recognizes that a final Judgment and Sale of Foreclosure was entered against the Plaintiffs in the Underlying Foreclosure Action. The Court has also considered Plaintiffs’ argument that this fact demonstrates that the Underlying Foreclosure Action is not “pending.” However, the Court finds that the relevant issue of whether Defendants’ alleged breach of duty caused Plaintiffs to suffer actual and ascertainable damages is not ripe due to Plaintiffs’ Order to Show Cause, which is still pending.”

“This Court finds that since the elements of causation and damages in Plaintiffs’ legal malpractice cause of action are dependent on the outcome of the Order to Show Cause, such cause of action is premature and must be dismissed with leave to replead under CPLR

Speculation on how a judge will rule can sometimes be elided, sometimes not.  Denisco v Uysal  2021 NY Slip Op 04118 Decided on June 30, 2021 Appellate Division, Second Department was an unsuccessful example.

“In August 2015, the plaintiff retained the defendants to represent him in connection with a claim for workers’ compensation benefits based upon injuries allegedly sustained by the plaintiff in the course of his employment on July 30, 2015. At a hearing, the plaintiff testified that he was injured on a work site while performing construction work for his employer when he climbed a ladder and twice hit his head on a sprinkler, causing him to fall off the ladder and land on his back and neck. However, the insurance carrier defending against the claim presented evidence that the plaintiff was not injured in the course of his employment, but rather after he left work when he “jumped out of . . . a moving car.” On February 19, 2016, the Judge who presided over the hearing denied the plaintiff’s claim, finding that the plaintiff’s injuries did not arise out of the course of his employment, and “were caused by an unrelated intentional injury.” On September 16, 2016, the Workers’ Compensation Board affirmed the determination to deny the plaintiff’s claim.”

“Here, even accepting the facts alleged in the complaint, as amplified by the plaintiff’s affidavit, as true, and according the plaintiff the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d at 87), the plaintiff failed to plead specific factual allegations demonstrating that, but for the defendants’ alleged negligence, there would have been a more favorable outcome on his workers’ compensation claim (see Katsoris v Bodnar & Milone, LLP, 186 AD3d 1504Janker v Silver, Forrester & Lesser, P.C., 135 AD3d at 910). The plaintiff’s allegations that the Judge who denied his workers’ compensation claim and/or the Workers’ Compensation Board would have credited certain evidence, including the testimony of alleged eyewitnesses, if such evidence had been presented by the defendants were speculative and conclusory (see Janker v Silver, Forrester & Lesser, P.C., 135 AD3d at 910; Cusimano v Wilson, Elser, Moskowitz, Edelman & Dicker LLP, 118 AD3d 542).”

Almost uniformly claims of overbilling or unnecessary legal work and fees are dismissed as “duplicitive” of a legal malpractice claim.  Dubon v Drexel  2021 NY Slip Op 04119 Decided on June 30, 2021 Appellate Division, Second Department is a rare example where the Court distinguishes between a real contract claim and one which is based on the lack of quality of legal work.

“The plaintiff hired the defendants, Allen Drexel and Drexel, LLC (hereinafter together Drexel), to represent him in a divorce action. The plaintiff and Drexel entered into a retainer agreement (hereinafter the retainer), which set forth the terms of Drexel’s representation of the plaintiff. Pursuant to the retainer, Drexel, among other things, would provide the plaintiff with itemized billing statements at least every 60 days. The retainer further provided that any modifications to the agreement, fee estimates, budgets for work to be done for the plaintiff, or adjustments to Drexel’s bills “will be valid only if in writing and signed by [both parties]” (emphasis in original).

In November 2016, the plaintiff commenced the instant action against Drexel, in which he asserted two causes of action alleging breach of contract and one cause of action alleging fraudulent inducement. The first breach of contract cause of action alleged, among other things, that Drexel breached a provision of the retainer pursuant to which Drexel agreed to defend the plaintiff in his divorce action and “to provide all necessary legal services for an estimated cost of ‘no more than $100,000.'” The second breach of contract cause of action alleged that Drexel failed to provide invoices to the plaintiff as required by the retainer. The fraudulent inducement cause of action alleged that the plaintiff was fraudulently induced into entering into the retainer by relying on Drexel’s representations as to the cost of its legal services.”

“However, the Supreme Court should have denied that branch of Drexel’s motion which was to dismiss so much of the first breach of contract cause of action as alleged that Drexel overbilled and charged the plaintiff for unnecessary legal services (see Ullmann-Schneider v Lacher & Lovell-Taylor, P.C., 121 AD3d 415, 416; O’Connor v Blodnick, Abramowitz and Blodnick, 295 AD2d 586, 587). In opposition to that branch of Drexel’s motion which was to dismiss the first breach of contract cause of action, the plaintiff submitted an affidavit in which he averred that Drexel double-billed him for legal services in the sum of $291,000 and charged him at least $70,000 for unnecessary legal services. Contrary to Drexel’s contention, the plaintiff’s claim that Drexel overbilled and charged him for unnecessary legal services is distinct from a legal malpractice cause of action, as the plaintiff’s claim does not challenge the quality of Drexel’s work (see Ullmann-Schneider v Lacher & Lovell-Taylor, P.C., 121 AD3d at 416; Tanenbaum v Molinoff, 118 AD3d 774, 775-776).”