The First Department determined this discovery dispute concerning whether attorney-client communications were privileged or waived in Prospect Capital Corp. v Morgan Lewis & Bockius LLP, 2026 NY Slip Op 02220, April 14, 2026.

“In this legal malpractice case, Supreme Court providently denied plaintiff’s motion for a protective order as to categories 15, 19, and 20 of its privilege log, limiting disclosure of category 19 solely to advice related to Prospect’s choice to bring the turnover claim, because plaintiff had waived the attorney-client privilege and work product privilege by reason of the at-issue doctrine (see CPLR 3103[a]; Those Certain Underwriters at Lloyd’s, London v Occidental Gems, Inc., 11 NY3d 843, 845 [2008]; G.D. Searle & Co. v Pennie & Edmonds, 308 AD2d 404, 404 [1st Dept 2003]). As this Court previously stated, the issues in this case “involve whether defendants’ alleged malpractice leading to the loss of a cause of action under the turnover provision of the subordination agreement caused Prospect damages” (Prospect Capital Corp. v Morgan Lewis & Bockius LLP, 239 AD3d 526, 527 [1st Dept 2025]). As to categories 15, 19, and 20, plaintiff has placed at issue the communications from in-house counsel regarding the turnover provision, its interpretation, and the decisions of whether or when to litigate against nonparty Silicon Valley Bank, because plaintiff has alleged that it relied on defendants’ advice in formulating its negotiation and litigation strategy (see Deutsche Bank Trust Co. of Ams. v Tri-Links Inv. Trust, 43 AD3d 56, 63-64 [1st Dept 2007]). The “communications sought . . . were made concurrently with the representation” by defendants and were “relevant to establishing . . . alleged reliance” on their advice (Bolton v Weil, Gotshal & Manges LLP, 4 Misc 3d 1029[A], 2004 NY Slip Op 51118[U], *6 [Sup Ct, New York County 2004]; see also Charbern Mgmt. Grp. LLC v Borah, Goldstein, Altschuler, Nahins & Goidel, P.C., 2023 WL 3945599, *4, 2023 US Dist LEXIS 101340, * 9-10 [SD NY, June 12, 2023, No. 22-CV-8137 (VEC)]). The privilege based on work product may also be waived “by reason of the at-issue doctrine” (G.D. Searle & Co., 308 AD2d at 404; see also Goldberg v Hirschberg, 10 Misc 3d 292, 298 [Sup Ct, New York County 2004]; Bolton, 2004 NY Slip Op 51118[U], *4).

On the other hand, Supreme Court providently granted plaintiff’s motion for a protective order as to categories 6, 9, 10, and 12 of its privilege log. The communications at issue, involving other contracts and amendments in the same transaction, are not relevant to whether plaintiff relied on defendants’ advice regarding the turnover provision (see Prospect Capital Corp., 239 AD3d at 526-527).”

A close reading of Halperin v Van Dam 2026 NY Slip Op 02333 April 16, 2026 Appellate Division, First Department implies that (counterintuitiviely) it is not worth that much.

“This case arises from plaintiffs’ purchase of an apartment located on the eighth floor of 32 West 20th Street, New York, New York (the Building). The HH defendants represented plaintiffs in connection with the transaction, and the broker defendants were plaintiffs’ broker.

After plaintiffs’ purchase, they retained Briguet to design a gut renovation of the apartment. The renovation included, among other things, creating a bedroom which utilized one of the apartment’s easterly lot-line windows and moving the kitchen to utilize two of the easterly lot-line windows. The renovation was completed by February 2018.

The premises adjacent to the Building are owned by Panasia Estate Inc. (Panasia). On March 11, 2019, plaintiffs were notified that Panasia intended to construct a two-story addition that would necessitate the elimination of the lot-line windows on the east side of the 7th and 8th floors of the Building. Thus, plaintiffs’ apartment may be affected by Panasia’s construction.

The HH defendants made a prima facie showing of their entitlement to summary judgment by submitting proof that plaintiffs have sustained no actual damages (see IGEN, Inc. v White, 250 AD2d 463, 465 [1st Dept 1998], lv denied 92 NY2d 818 [1998]). The HH defendants submitted evidence that plaintiffs’ lot-line windows remain unobstructed, and plaintiffs failed to raise an issue of fact in opposition. Plaintiffs conceded that they have not lost the lot-line windows. Possible future damages plaintiffs may sustain, if the lot-line windows are lost, are speculative and thus, cannot support a legal malpractice claim as a matter of law (Pellegrino v File, 291 AD2d 60, 63 [1st Dept 2002], lv denied 98 NY2d 606 [2002]; see Gallet, Dreyer & Berkey, LLP v Basile, 141 AD3d 405, 405-406 [1st Dept 2016]).

Plaintiffs contend that, had they known the apartment they purchased might lose its lot-line windows because of the approved plan by Panasia for a future vertical expansion, they would have neither bought nor renovated it. However, plaintiffs’ speculation failed to raise a triable issue of fact as to whether they overpaid for the apartment considering the possibility of the expansion of the neighboring building (see Mah v 40-44 W. 120th St. Assoc., LLC, 193 AD3d 549, 550 [1st Dept 2021]). Plaintiffs paid $2,530,000 for the apartment in the spring of 2017, and their bank’s appraiser — a nonparty who has no stake in this case — appraised it at the time for $2,530,000, as if it had no eastern windows. In opposition, plaintiffs’ expert appraiser opined that losing the lot-line windows would decrease the value of the apartment by 25% as of the original closing date, May 24, 2017. However, plaintiff’s appraiser valued the apartment as of June 1, 2021, so it is unclear to what amount the 25% diminution would apply. Indeed, at his deposition, plaintiff’s expert appraiser admitted that 2017 and 2021 are “vastly different dates” for appraisal purposes. Additionally, plaintiffs admitted that they could not have expected their apartment to increase in value dollar-for-dollar by the amount of the renovation.”

Shaikh v Davis 2026 NY Slip Op 31320(U) April 1, 2026 Supreme Court, New York County Docket Number: Index No. 100809/2025 Judge: Hasa A. Kingo presents the question of what happens if a CPLR 3211 motion is made after an answer.

“Plaintiff Zia H. Shaikh (pro se) commenced this legal malpractice action on August 1,

The complaint names Jeffrey Davis and his law office (the “Davis Defendants”) among
others, and includes multiple causes of action arising out of the Davis Defendants’ representation of plaintiff in an underlying estate litigation (Index No. 158656/2017). The summons was served on the Davis Defendants on August 1, 2025. On August 26, 2025, the Davis Defendants served a notice of motion (dated August 26, 2025) to dismiss the Second, Third and Fifth causes of action under CPLR §§ 3211(a)(1) and (7) failure to state a claim and lack of jurisdictional defense), and for summary judgment under CPLR § 3212. The motion was returnable December 2, 2025. Thereafter, on October 1, 2025, the Davis Defendants served a verified answer to the complaint,
joining issue. Plaintiff timely opposed the motion, asserting among other things that the pre-answer motion is moot once the answer has been served.

Defendants contend that each challenged cause of action fails to state a claim. They argue that, even under liberal pleading standards, plaintiff’s Second, Third and Fifth causes are legally defective and duplicative of the malpractice claim. Defendants rely on CPLR § 3211(a)(7) (dismissal for failure to state a cause) and invoke CPLR § 3211(a)(1) to the extent the allegations are flatly contradicted by undisputed documentary evidence. They also assert that their motion istimely and that, because it was filed after service of the summons, CPLR § 3211(f) extended their time to answer (and was preserved by the answer), but even if not, the court may treat the motion on the merits. They further contend that the verified complaint, despite being lengthy, alleges no separate cognizable duty beyond general legal malpractice, so that any contract, fiduciary or fraud claims must be dismissed as duplicative. Defendants also seek summary judgment (CPLR § 3212), arguing that the complaint is based solely on conclusory allegations and that plaintiff cannot prove her damages or causation.”

“Under New York law, a complaint that asserts a legal malpractice claim may not be
accompanied by independent claims that duplicate the malpractice cause. As the Appellate Division, First Department, has held, a breach of contract or fiduciary duty cause that alleges no additional facts beyond those underlying the malpractice claim is duplicative and must be dismissed (Sage Realty Corp. v. Proskauer Rose, 251 AD2d 35, 38 [1st Dept 1998]; Cohen v. Kachroo, 115 AD3d 512, 513–14 [1st Dept 2014]). Similarly, a claim that an attorney violated professional conduct rules or fiduciary obligations does not, without more, give rise to a separate cause of action (Cohen v. Kachroo, 115 AD3d 512, 513–14 [1st Dept 2014]). In Cohen v. Kachroo, for example, the Appellate Division, First Department, affirmed dismissal of a breach-offiduciary-duty cause as duplicative of the malpractice count because it alleged no new facts or damages; the court likewise held that mere violations of the disciplinary rules cannot independently sustain a malpractice claim (id.). In Sage Realty Corp. v. Proskauer Rose, the Appellate Division, First Department, similarly upheld the dismissal of contract and fraud claims as redundant of a malpractice claim arising from the same attorney conduct (251 AD2d at 38). Applying these principles, the Second, Third and Fifth causes of action here – all of which arise from the same underlying conduct (the Davis Defendants’ representation in the estate litigation) – cannot stand independently. Plaintiff’s detailed affidavit (Complaint ¶¶7–9) admits that defendants owed the conventional duty of care as her lawyers, and that any breach, causation and damages would be for legal malpractice. Any breach-of-contract claim (e.g. for failure to perform services) or fraud/misrepresentation claim based on those same allegations is subsumed. Likewise, to the extent any Fifth cause asserts a fiduciary violation or professional ethics breach,
it duplicates the malpractice count. As in Cohen v. Kachroo, plaintiff’s fiduciary duty claim “alleged no new facts and sought the same damages” as her malpractice claim, and thus must be dismissed. In short, accepting the pleaded facts as true, the Second, Third and Fifth causes of action fail to state an independent claim. defendants are entitled to dismissal of those claims under CPLR §c3211(a)(7) as duplicative of the malpractice cause.

Defendants’ summary judgment motion, however, cannot be granted. Under CPLR § 3212, the moving party must establish entitlement to judgment as a matter of law by submitting admissible evidence eliminating any triable issue (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). Here defendants submitted no affidavits or admissible proof tending to negate plaintiff’s claims. Nor did they produce any documentary evidence decisively contradicting the complaint (the email exhibits filed by plaintiff are not disputed on this motion). On the contrary, plaintiff’s verified complaint and supporting affirmation may be treated as evidence under CPLR § 105(u) and Rovello v. Orofino, 40 NY2d 633 (1976). In these circumstances, summary judgment must be
denied, because plaintiff has raised factual questions (for example, whether but for defendants’ conduct plaintiff would have obtained a more favorable outcome, and the nature and amount of plaintiff’s damages) that can only be resolved at trial. It is black letter law that issues of credibility or weight of evidence are to be resolved by the trier of fact, not on a motion to dismiss or for summary judgment.

As such, defendants’ motion to dismiss and for summary judgment is granted in part and denied in part. Consistent with the foregoing, the Second, Third and Fifth causes of action are dismissed pursuant to CPLR § 3211(a)(7) as duplicative of the legal malpractice claim (the First and any other causes not challenged survive). In all other respects, defendants’ motion is denied. Because plaintiff’s allegations must be accepted as true at this stage, the remaining malpractice cause may proceed. No further relief is granted.”

Aberbach-Marolda v Cherner 2026 NY Slip Op 02089 April 8, 2026 Appellate Division, Second Department is a real curiosity. A star appellate team for Defendant-Appellant, appealing from a negative outcome at a very rare legal malpractice trial and what seems to be an uninsured attorney Plainitff. Much seems to turn on evidentiary missteps prior to trial.

“In an action, inter alia, to recover damages for breach of contract, the defendant appeals from a judgment of the Supreme Court, Westchester County (William J. Giacomo, J.), dated August 13, 2019. The judgment, (1) upon an order of the same court (Joan B. Lefkowitz, J.) dated April 30, 2018, inter alia, denying those branches of the defendant’s motion which were to compel the plaintiff Susanne Aberbach-Marolda to provide authorizations for Internet providers to release certain emails, to pay the fees and costs associated with her deposition, to provide a sworn statement detailing all claims made on her malpractice insurance policy over a certain period of time, and to produce certain bank and telephone records, granting that branch of the defendant’s motion which was to compel the plaintiff Susanne Aberbach-Marolda to appear for a new deposition only to the extent of directing her to appear for a deposition limited to certain lines of inquiry, and granting that branch of the motion of the plaintiff Susanne Aberbach-Marolda and Doris T. Friedman which was to preclude the defendant from introducing at trial video recordings of the deposition of the plaintiff Susanne Aberbach-Marolda, (2) upon an order of the same court (Joan B. Lefkowitz, J.) dated December 17, 2018, inter alia, denying those branches of the defendant’s motion which were to compel the plaintiff Susanne-Aberbach Marolda to provide authorizations for Internet providers to release certain emails, to appear for a new deposition and to pay the fees and costs associated with her deposition, to provide a sworn statement detailing all claims made on her malpractice insurance policy over a certain period of time, and to produce certain telephone records, (3) upon an order of the same court (Joan B. Lefkowitz, J.) dated March 6, 2019, denying the defendant’s motion to vacate the note of issue and trial readiness order, and (4) upon a jury verdict, is in favor of the plaintiff Susanne Aberbach-Marolda and against the defendant in the principal sum of $56,148.98 and, in effect, dismissed the defendant’s counterclaims. Justice Ford has been substituted for former Justice Zayas (see 22 NYCRR 1250.1[b]).”

“This appeal stems from a fee dispute. In September 2013, the defendant retained the plaintiff Susanne Aberbach-Marolda to represent him in a matrimonial action. At the same time, with the knowledge and consent of the defendant, Doris T. Friedman became of counsel to Aberbach-Marolda on the matrimonial action. The representation of the defendant by Aberbach-Marolda and Friedman included a multiday nonjury trial on the issues of equitable distribution and culminated in a judgment of divorce entered January 21, 2016 (see Ospina-Cherner v Cherner, 178 AD3d 1059). In June 2016, Aberbach-Marolda and Friedman commenced this action against the defendant, inter alia, to recover damages for breach of contract, alleging that the defendant had not paid the majority of his attorneys’ fees. The defendant interposed an answer containing 35 counterclaims, including counterclaims to recover damages for legal malpractice.

After court conferences were conducted in October and December 2017, the defendant moved, among other things, to compel Aberbach-Marolda to provide authorizations for Internet providers to release certain emails, to appear for a new deposition and to pay the fees and costs associated with her deposition, to provide a sworn statement detailing all claims made on her malpractice insurance policy over a certain period of time, and to produce certain bank and telephone records. Aberbach-Marolda and Friedman moved, inter alia, to preclude the defendant from introducing at trial video recordings of Aberbach-Marolda’s deposition. In an order dated April 30, 2018, the Supreme Court, among other things, granted that branch of the motion of Aberbach-Marolda and Friedman which was to preclude the defendant from introducing at trial video recordings of Aberbach-Marolda’s deposition, granted that branch of the defendant’s motion which was to compel Aberbach-Marolda to appear for a new deposition to the extent of directing her to appear for a deposition limited to certain lines of inquiry, and denied those branches of the defendant’s motion which were to compel Aberbach-Marolda to provide authorizations for Internet providers to release certain emails, to pay the fees and costs associated with her deposition, to provide a sworn statement detailing all claims made on her malpractice insurance policy over a certain period of time, and to produce certain bank and telephone records.”

“The Supreme Court providently exercised its discretion in granting that branch of the defendant’s motion which was to compel Aberbach-Marolda to appear for a new deposition only to the extent of directing her to appear for a new deposition on 12 specific lines of inquiry. To the extent that the defendant requested an additional deposition beyond what was directed, his request was without merit. Further, the court did not improvidently exercise its discretion in denying that branch of the defendant’s motion which was to compel Aberbach-Marolda pay the fees and costs associated with her first deposition, as she neither left the deposition early nor refused to answer clear questions (cf. O’Neill v Ho, 28 AD3d 626).

Furthermore, the Supreme Court did not err in granting that branch of the motion of Aberbach-Marolda and Friedman which was to preclude the defendant from introducing at trial video recordings of Aberbach-Marolda’s deposition. Pursuant to a compliance conference order dated December 20, 2017, Aberbach-Marolda’s deposition was scheduled to be conducted in New York on February 2, 2018, and pursuant to a stipulation of the parties, if Aberbach-Marolda’s deposition continued after that date, it would be continued by video while she was in South Carolina. One day prior to Aberbach-Marolda’s deposition in New York, the defendant’s attorneys sent a fax to Aberbach-Marolda confirming that the deposition would be videotaped, without including any information regarding the videotape operator. Aberbach-Marolda and Friedman objected to the video deposition but ultimately participated.

Section 202.15 of the Uniform Rules for the New York State Trial Courts requires that “[e]very notice or subpoena for the taking of a videotaped deposition shall state that it is to be videotaped and the name and address of the videotape operator and of the operator’s employers, if any” (22 NYCRR 202.15[c]). CPLR 3107 requires a party desiring to take the deposition of another person to give each party 20 days’ notice. The interplay between 22 NYCRR 202.15(c) and CPLR 3107 requires that a videotaped deposition must be properly noticed at least 20 days prior. As the

defendant’s deposition notice was procedurally improper, the Supreme Court did not err in precluding the introduction at trial of video recordings of Aberbach-Marolda’s deposition (see id. § 3103[c]).”

“The Supreme Court providently exercised its discretion in denying that branch of the defendant’s motion which was to compel Aberbach-Marolda to provide a sworn statement detailing all claims made on her malpractice insurance policy during the time that she represented him. Such a statement would have no probative value in this case, where it is undisputed that Aberbach-Marolda’s malpractice insurance policy lapsed in September 2014, well prior to the defendant’s claims.

The Supreme Court also providently exercised its discretion in denying that branch of the defendant’s motion which was to compel Aberbach-Marolda to produce certain bank and telephone records. The defendant does not deny that Aberbach-Marolda and Friedman had produced documents in response to his request for bank records, and there is no indication in the record that there were any requests outstanding in this regard. As for Aberbach-Marolda’s telephone records, the defendant’s motion provided little explanation as to why these records are relevant to his case. Under the circumstances, where the court was “actively involved in managing the case and [was] intimately familiar with the particularities of the matter,” there is no basis in this record to disturb the determination that the defendant’s request for Aberbach-Marolda’s telephone records amounted to nothing more than a fishing expedition (Auerbach v Klein, 30 AD3d 451, 452).”

Link Motion Inc. v DLA Piper LLP (us) 2026 NY Slip Op 02066 April 7, 2026

Appellate Division, First Department is a short distillation of how a legal malpractice clame can go wrong. Here, it ended in dismissal, attorney-fee sanction and the award of $ 482,390 to DLA Piper.

“Judgment, Supreme Court, New York County (Andrew Borrok, J.), entered June 16, 2025, awarding defendant DLA Piper LLP (US) sanctions and attorneys’ fees in the amount of $482,390.56, plus interest, against plaintiff Link Motion Inc. and nonparty-appellants Felicello Law P.C., Rosanne Felicello, and Michael Maloney, unanimously affirmed, with costs. Appeals from order, same court and Justice, entered on or about February 19, 2025, dismissing the amended complaint and awarding defendants sanctions, including their reasonable attorneys’ fees incurred in defending the action, and from supplemental order, same court and Justice, entered on or about March 11, 2025, clarifying the February 19, 2025 order and referring the matter for a hearing to determine the amount of attorneys’ fees to be awarded, unanimously dismissed, without costs, as subsumed in the judgment.

The court correctly found that the record of the communications between DLA and plaintiff concerning DLA’s limited representation of plaintiff in the first stage of a federal derivative action clearly established that plaintiff was on notice that DLA’s representation in that action ended as of January 21, 2019. That was the day that plaintiff told DLA it could not pay DLA, in response to DLA’s message from a day earlier requesting consent to withdraw from representation if plaintiff could not pay it to go forward. These communications to and from plaintiff refute any allegations to the contrary, as well as the allegations that the legal representation continued after that date until at least February 4, 2019 (see Shumsky v Eisenstein, 96 NY2d 164, 171 [2001] [“even when further representation concerning the specific matter in which the attorney allegedly committed the complained of malpractice is needed and contemplated by the client, the continuous representation toll would nonetheless end once the client is informed or otherwise put on notice of the attorney’s withdrawal from representation”]; Walsh v Wallace Law Off., 203 AD3d 684, 685 [1st Dept 2022]). In the absence of a “continuous representation toll,” the claim was untimely filed, even if the COVID toll were to apply.

The action was, in any event, properly dismissed for failure to state a cause of action. The record of the communications described above between DLA and plaintiff concerning the former’s representation in the federal case forecloses the possibility that plaintiff could show, or that Felicello Law could in good faith have believed, that DLA’s conduct in that matter breached a duty to provide competent legal services.

The court correctly awarded sanctions pursuant to 22 NYCRR 130-1.1 against plaintiff and Felicello Law for the assertion of the same frivolous legal malpractice claim that resulted in Rule 11 sanctions in the mirror image federal malpractice action. The record establishes that certain allegations in the complaint were false and that plaintiff and its counsel had no possibility of proving, nor any good faith basis for believing, that DLA acted negligently in its representation (see Kyowa Seni, Co., Ltd. v ANA Aircraft Technics, Co., Ltd., 239 AD3d 413, 414 [1st Dept 2025]). Furthermore, the court providently exercised its discretion in determining, based on the evidence submitted at the fee hearing, the reasonable amount of attorneys’ fees and disbursements incurred by DLA in defending the litigation (see e.g. Sprecase v Tenreiro, 216 AD3d 499 [1st Dept 2023], lv dismissed 40 NY3d 1090 [2024])”

North Flats LLC v Belkin Burden Goldman, LLP 2026 NY Slip Op 01165 Decided on March 03, 2026 Appellate Division, First Department is an example of where the defenses of insufficient expert causation evidence coupled with “intervening cause” entitle defendant to summary judgment.

“The court properly dismissed plaintiff’s claim for legal malpractice because defendant established prima facie entitlement to summary judgment by submitting the affirmation of an expert who opined that plaintiff did not have a claim for legal malpractice because its decision to rely on the sworn certification of plaintiff’s architect was reasonable under the circumstances, that withdrawal of the Certification of Article 7-B Compliance was not feasible, and that an application to extend the deadline for compliance would have been futile (see Global Bus. Inst. v Rivkin Radler LLP, 101 AD3d 651, 651 [1st Dept 2012]; see also North Flats LLC v Belkin Burden Goldman, LLP, 217 AD3d 427, 427-428 [1st Dept 2023]). Plaintiff failed to raise an issue of fact because its expert’s affidavit identified “no more than an error of judgment,” which “does not rise to the level of malpractice” (Rosner v Paley, 65 NY2d 736, 738 [1985]). Further, plaintiff chose to waive the rent arrears from several tenants. This demonstrates “an intervening cause . . . responsible” for plaintiff’s alleged injury (see Brooks v Lewin, 21 AD3d 731, 734 [1st Dept 2005], lv denied 6 NY3d 713 [2006]). To the extent that plaintiff claims damages “in the form of fees . . . incur[red] by substitute counsel, [plaintiff] would have incurred such fees whether [it] was represented by defendant[] or other counsel” (Cohen v Kachroo, 115 AD3d 512, 513 [1st Dept 2014]).”

It’s a puzzling set of facts, and as enunciated by the Court, it seems that the two sons running a liquor store signed papers selling the store and the building when they had no authority to do so. Was the buyer’s attorney potentially liable to the owner?

Adel Wine & Liqs., Inc. v Randy’s 925 Corp. 2026 NY Slip Op 31054(U) March 19, 2026
Supreme Court, New York County Docket Number: Index No. 659194/2025 Judge: Lyle E. Frank says the answer is no.

“The complaint alleges that plaintiff, a New York corporation, located at 925 Columbus
Avenue, New York, New York, is owned and operated by Adelaida Melendez “Melendez”), and Melendez was the sole shareholder, director and officer of the corporation. Further, Melendez is the sole shareholder, director and president of M Brothers Inc. the entity which owns the building where plaintiff is located.

Since approximately September 2016, Melendez had relied upon her sons Javier Melendez and Alberto Melendez to operate Adel Wines and since about September 2022 has lived at an assisted living facility. Plaintiff alleges that Melendez was approached by two unknown visitors, her son Alberto Melendez was also present, and that defendant Dunnington, through attorney Swetnick, provided documents to Melendez without explaining the contents of the documents and asked Melendez to sign the documents. Melendez did not learn until 2025, that the unknown visitor that provided the documents to her was Swetnick.

The complaint further alleges that the documents were for the sale of the business and
transfer of a liquor license rather than a lease.”

“The complaint asserts six causes of action, however only one cause of action is asserted against Dunnington, sounding in legal malpractice. During oral argument, plaintiff’s counsel urged the Court to review the complaint with the implication that although not framed as such, the complaint contains sufficient allegations of fraud as against Dunnington if the Court were to deem the legal malpractice cause of action insufficient.
“In order to state a cause of action for legal malpractice, the complaint must set forth
three elements: the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and actual damages” (Mamoon v Dot Net Inc., 135 AD3d 656, 658 [1st Dept 2016] internal citations omitted). Additionally, “absent an attorney-client relationship, a cause of action for legal malpractice cannot be stated” (Fed. Ins. Co. v N. Am. Specialty Ins. Co., 47 AD3d 52, 59 [1st Dept 2007]).”

“The complaint repeatedly alleges that the unknown visitors, later identified as Glass and Swetnick, did not speak to Melendez, nor made any statements regarding the content of the documents, therefore there were no fraudulent statements made to induce Melendez into signing the documents. The complaint offers no factual basis as
to why Melendez believed that the documents were for a lease rather than a sale.
Further, the allegation of legal malpractice is also insufficient as it is undisputed that
defendant was not counsel for plaintiff, therefore no attorney client relatio nship exists to support a legal malpractice claim. Because the Court finds that the complaint fails to state a cause of action as against Dunnington the Court will not reach the movants arguments with respect to documentary evidence and lack of a necessary party.”

Dixie v Scheer 2025 NY Slip Op 30167(U) January 11, 2025 Supreme Court, New York County Docket Number: Index No. 654690/2022 Judge: Andrea Masley is a chronocal of how an investment can be completely undermined by mergers and sales of assets so that the investment is completely lost. Were the attorneys a cause, is a derivitive claim possible and are they liable?

“Plaintiff Dino Dixie brings this action individually and derivatively on behalf of New Amsterdam Distributors, LLC (NAO) and Terriodiol Ohio LLC (TO). Dixie alleges that he was a founding member of NAO, which through NYCI Holding, LLC (NYCI) owned a 50% interest in nonparty NYCANNA LLC. (NYSCEF 1, Complaint 2, 20, 28.) NAO is the sole shareholder of NYCI. (Id. ,i 28.) Dixie’s ownership interest in NAO is 13%. (Id. ,i 2.)
In May 2015, NAO and nonparty EPMMNY, LLC discussed the formation of a partnership to jointly pursue a medical cannabis license. 2 (Id. ,i 9.) NAO retained defendants Sheer and BSK to provide legal services, including the formation of NYCANNA for the purpose of pursuing the license. (Id. ,i 10.) Upon NYCANNA’s formation, Scheer and BSK “simultaneously became attorneys for NAO, NYCI, and NYCANNA.” (Id.)

On November 20, 2016, Scheer sent NAD’s principals notice that NYCANNA was merging with nonparty NY Medicinal Research and Caring, LLC (NYMRC) to assist with financing. (Id. ,i 13.) NYMRC was owned by nonparty High Street Capital Partners (High Street). (Id.) High Street is Acreage’s predecessor. 3 This merger allegedly diluted Dixie’s equity interest as it substantially divested NAD’s members of their ownership interests. (Id. ,i 14.) Specifically, Dixie alleges that Scheer and BSK conspired with the incoming investors, including NYMRC, NYCI, and Acreage, to divest NAO of its interest in NYCANNA. (Id.)

In May 2017, the New York State Department of Health awarded a medical marijuana license to NY CAN NA. (Id. ,i 16.) Thereafter, Scheer introduced Dixie to Dai no, who had an existing relationship with Scheer. (Id. ,i 17.) At Scheer’s recommendation, Daina became a member and manager of NAO despite not having experience in the industry. (Id.) Dixie alleges he was sidelined as Scheer and Daino essentially took over NAO. (Id. ,i 19.)
“In May 2018, NYCI sold its fifty percent interest in NYCANNA to High Street.” (Id. ,i 20.) Dixie alleges that Scheer structured the transaction so that High Street/Acreage acquired all of NYCANNA’s equity. (Id.) NAD’s officers, including Dixie were removed as NYCANNA’s management, leaving it a mere shell company. (Id.) This transaction came about after Daina met with representatives from High Street. After this meeting, Daina informed Dixie “that there was going to be a $2 million cash call, and that if he did not meet the call by investing the necessary cash, his percentage ownership in NYCANNA would be reduced.” (Id. ,i 22.) Daino then presented an alternative to the cash call – selling NYCANNA to High Street/Acreage Holdings. (Id. ,i 23.) “Daina said that the transaction needed to be approved by the NYCANNA shareholders within 8 hours” and represented that the value of the “transaction would be approximately $40 million based on the stock valuation.” (Id.) The consideration for the sale of NYCl’s interest in NYCANNA to High Street/Acreage was cash and stock in Acreage. (Id. ,i 20 [NYCI sold its in interest “in exchange for cash and class D units of High Street”].)
Dixie alleges that Scheer violated his fiduciary duty to the NAO members by falsely advising that the transaction was favorable to NYCANNA, NYCI and NAO, and immediate approval was necessary, depriving them “of the opportunity to conduct a
proper due diligence investigation of the proposed transaction.” (Id. ,I 25.) Dixie and
the other NAO members approved the transaction based upon Daina and Scheer’s
representations. (Id.)”

“Scheer and BSK assert that this cause of action is time barred as any claim in connection with the alleged delay in the transfer of Acreage stock accrued on May 15,There is a dispute whether the three- or six-year statute of limitations applies.”

“A three-year statute of limitations applies where a plaintiff “seeks purely monetary relief, not equitable relief for which an award of monetary damages would not be adequate.” (VA Mgt., LP v Estate of Valvani, 192 AD3d 615, 615 [1st Dept 2021 ]. ) Where a plaintiff uses “the term ‘disgorgement’ instead of other equally applicable terms such as repayment, recoupment, refund, or reimbursement,” it “should not be permitted to distort the nature of the claim so as to expand the applicable limitations period from three years to six.” (Access Point Med., LLC v Mandell, 106 AD3d 40, 44 [1st Dept 2013]; see also VA Mgt., LP, 192 AD3d at 615 [stating that “[p]laintiff’s characterization of that relief as ‘disgorgement’ of [defendant’s] compensation does not convert it into a claim for equitable relief to which the six-year statute of limitations would apply” (citations omitted)].):”

“Here, there is one alleged tortious actScheer’s delay in transferring the stock to Dixie – which first occurred at the end of the lockup on May 15, 2019. “The doctrine is inapplicable where there is one tortious act complained of since the cause of action accrues in those cases at the time that the wrongful act first injured plaintiff and it does not change as a result of ‘continuing consequential damages.”‘ (Id. [citations omitted].) Although the single alleged action of delay may have caused a continuing increase in damages, the continuing wrong doctrine does not apply. (Id. at 601-602 [“where a plaintiff asserts a single breach-with damages increasing as the breach continued-the continuing wrong theory does not apply” (citations omitted)].) The claim to the extent it is based on defendants’ alleged failure “to diligently pursue the necessary process for transferring Acreage shares from NYCI to Dixie and other individual members of NAO once the NYCI Board of Managers authorized it” is dismissed. (NYSCEF 1, Complaint ,i 65)
Scheer and BSK do not address the timeliness of this claim to the extent it is based on their alleged “erroneous tax advice regarding the purported tax consequences of transferring the Acreage stock into their own individual names.” (NYSCEF 1, Complaint ,i 66.) Thus, the claim to the extent it is based on this alleged conduct is sustained.”