There are limits on when a Judiciary Law 487 claim applies, and Nimkoff v Waldbaum
2026 NY Slip Op 04203 July 1, 2026 Appellate Division, Second Department holds that one of them is that the attorney who is accused of deceit must have been acting as an attorney.

“In June 2019, the plaintiff commenced this action against his former wife, the defendant Nancy Waldbaum, and their daughter, the defendant Ilana Joy Waldbaum, sued herein as Ilana Joy Nimkoff (hereinafter Ilana Waldbaum). The plaintiff commenced this action by filing a summons with notice. The plaintiff served the summons with notice upon the defendants in January 2020 and served the complaint in March 2020. He asserted causes of action, inter alia, to recover damages for malicious prosecution and defamation, alleging that the defendants filed a false police report against him. The defendants each interposed an answer and each asserted a counterclaim to recover damages for a violation of Judiciary Law § 487, alleging that the plaintiff, an attorney, engaged in a deceitful act by using therapy sessions with the defendants to gain information to use in this action without informing the defendants that he had commenced this action. Ilana Waldbaum also asserted a counterclaim for an award of counsel fees as child support.

On August 25, 2020, the Supreme Court issued a discovery order (hereinafter the August 2020 discovery order) directing the plaintiff to act diligently to convert this action to an electronically filed action no later than 30 days from the date of the order. The court further directed that the plaintiff would have 30 days from the date this action was converted to move for a protective order with respect to the outstanding discovery demands and, should the plaintiff fail to timely move for a protective order, the plaintiff’s full and complete responses, in proper form, must be served upon each defendant within 45 days of the conversion.”

“The Supreme Court properly granted that branch of the plaintiff’s motion which was pursuant to CPLR 3211(a) to dismiss the defendants’ counterclaims to recover damages for a violation of Judiciary Law § 487. While Judiciary Law § 487 may apply to an attorney acting pro se (see AQ Asset Mgt., LLC v Levine, 119 AD3d 457), the statute applies only to actions taken by that party acting in their capacity as an attorney (see Altman v DiPreta, 204 AD3d 965, 969; Pinkesz Mut. Holdings, LLC v Pinkesz, 198 AD3d 693, 698). Here, the plaintiff was not acting as an attorney in connection with the therapy sessions at which the deceitful conduct allegedly occurred, and that conduct is therefore not subject to Judiciary Law § 487.”

Gruber v Donaldsons, Inc. 2026 NY Slip Op 04182 July 1, 2026 Appellate Division, Second Department is an unusual set up for a legal malpractice case, which involves the car dealership, GEICO, attorneys hired by GEICO and the owner of the vehicle.

“In an action, inter alia, to recover damages for fraud and legal malpractice, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Francis D. Ricigliano, J.), dated March 24, 2023. The order granted that branch of the motion of the defendants GEICO General Insurance Company, Inc., and Russo & Tambasco which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them, denied the plaintiffs’ motion for summary judgment on the issue of liability on the causes of action to recover damages for fraud, breach of the covenant of good faith and fair dealing, and legal malpractice, granted that branch of the cross-motion of the defendants GEICO General Insurance Company, Inc., and Russo & Tambasco which was for summary judgment dismissing the complaint insofar as asserted against them, and granted that branch of the cross-motion of the defendant Donaldsons, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the motion of the defendants GEICO General Insurance Company, Inc., and Russo & Tambasco which was pursuant to CPLR 3211(a) to dismiss the cause of action to recover damages for legal malpractice, and substituting therefor a provision denying that branch of the motion, and (2) by deleting the provision thereof granting that branch of the cross-motion of the defendants GEICO General Insurance Company, Inc., and Russo & Tambasco which was for summary judgment dismissing the cause of action to recover damages for legal malpractice, and substituting therefor a provision denying that branch of the cross-motion; as so modified, the order is affirmed, with one bill of costs to the defendant Donaldsons, Inc., payable by the plaintiffs.

On October 6, 2014, a vehicle registered to the plaintiff Kevin W. Gruber and being driven by the plaintiff Thomas E. Difolco was involved in an accident with a motorcycle. The motorcycle driver allegedly suffered serious injuries and subsequently commenced a personal injury action against Gruber and Difolco (hereinafter together the plaintiffs). The defendant Russo & Tambasco (hereinafter the GEICO attorneys) represented the plaintiffs in connection with the personal injury action. The motorcycle driver obtained summary judgment on the issue of liability, and Gruber was ultimately liable for so much of the settlement award as exceeded the insurance policy limits.

On September 30, 2018, the plaintiffs commenced the instant action against Donaldsons, Inc. (hereinafter Donaldsons), the dealership where the vehicle involved in the accident was purchased, GEICO General Insurance Company, Inc. (hereinafter GEICO), and the GEICO attorneys. The complaint, inter alia, asserted causes of action to recover damages for fraud against Donaldsons and GEICO, a cause of action alleging breach of the covenant of good faith and fair dealing against GEICO, and a cause of action alleging legal malpractice against the GEICO attorneys. The plaintiffs alleged that Donaldsons fraudulently induced Gruber to purchase and become the registered owner of the vehicle, which was intended for Difolco’s use, by misrepresenting that only the person named in the insurance policy for the vehicle, and not the registered owner of the vehicle, had any liability for the vehicle. The complaint also alleged that Donaldsons fraudulently secured insurance coverage for the vehicle through GEICO in Difolco’s name, even though Gruber was not named as an insured on the policy. Further, the plaintiffs alleged that GEICO breached the covenant of good faith and fair dealing by issuing a New York State insurance identification card to Gruber that misrepresented that GEICO had issued an owner’s policy of insurance to him. The complaint also alleged that the GEICO attorneys committed legal malpractice, among other things, in failing to meaningfully oppose the motorcycle driver’s motion for summary judgment in the personal injury action.”

“Initially, we are unpersuaded by Donaldsons’s contention that the appeal should be dismissed on the ground that no appeal lies from a decision. “Decisions may not be appealed, although appeals may be taken from orders and final judgments” (Charalabidis v Elnagar, 188 AD3d 44, 47 [citations omitted]; see CPLR 5501[a]; 5512[a]). Here, the paper appealed from meets the criteria for an order set forth in CPLR 2219(a) and determined the respective motions and cross-motions (see Bellizzi v Bellizzi, 82 AD3d 1541, 1542-1543).

The Supreme Court should have denied that branch of the GEICO defendants’ motion which was to dismiss the cause of action to recover damages for legal malpractice pursuant to CPLR 3211(a)(1) and (7) pursuant to the single motion rule (see id. § 3211[e]; Eustache v Board of Educ. of the City Sch. Dist. of the City of N.Y., 236 AD3d 590, 591; Oakley v County of Nassau, 127 AD3d 946, 947). The GEICO defendants did not provide a sufficient reason for not including the argument to dismiss the cause of action to recover damages for legal malpractice pursuant to CPLR 3211(a)(1) and (7) as an alternative basis for relief in the GEICO attorneys’ prior motion to dismiss (see Oakley v County of Nassau, 127 AD3d at 947).

Contrary to the plaintiffs’ contention, the complaint failed to state a cause of action to recover damages for breach of the covenant of good faith and fair dealing against GEICO. “‘Implicit in every contract is an implied covenant of good faith and fair dealing'” (East Ramapo Cent. Sch. Dist. v New York Schs. Ins. Reciprocal, 199 AD3d 881, 884, quoting 25 Bay Terrace Assoc., L.P. v Public Serv. Mut. Ins. Co., 194 AD3d 668, 671-672). “The implied covenant of good faith and fair dealing is a pledge that neither party to the contract shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruit of the contract, even if the terms of the contract do not explicitly prohibit such conduct” (id. [internal quotation marks omitted]; see Moran v Erk, 11 NY3d 452, 456; Gutierrez v Government Empls. Ins. Co., 136 AD3d 975, 976-977). “‘No obligation may be implied that would be inconsistent with other terms of the contractual relationship'” (East Ramapo Cent. Sch. Dist. v New York Schs. Ins. Reciprocal, 199 AD3d at 884, quoting Celauro v 4C Foods Corp., 187 AD3d 836, 838). “In the context of an insurance-related dispute, the implied covenant of good faith and fair dealing means that the insurer must investigate claims for coverage in good faith, must not manufacture factually incorrect reasons to deny insurance coverage, must not deviate from its own practices or from industry practices, and must not act with ‘gross disregard of the insured’s interests'” (id. [internal quotation marks omitted], quoting Smith v General Acc. Ins. Co., 91 NY2d 648, 653; see Pavia v State Farm Mut. Auto. Ins. Co., 82 NY2d 445, 453).

The complaint alleged not that GEICO failed to fulfill its obligations under the policy of insurance, but rather that GEICO acted in bad faith in issuing the policy. Such allegations fall outside the scope of the implied covenant of good faith and fair dealing, which “is a pledge that neither party to the contract shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruit of the contract” (Gutierrez v Government Empls. Ins. Co., 136 AD3d at 976).

The Supreme Court also properly granted those branches of the cross-motions of the GEICO defendants and Donaldsons which were for summary judgment dismissing the causes of action alleging fraud, because the defendants demonstrated, prima facie, that the plaintiffs’ reliance on Donaldsons’s misrepresentation was unreasonable as a matter of law (see ISS Action, Inc. v Tutor Perini Corp., 170 AD3d 686, 689). “[I]f the facts represented are not matters peculiarly within the party’s knowledge, and the other party has the means available to him [or her] of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation, he [or she] must make use of those means, or he [or she] will not be heard to complain that he [or she] was induced to enter into the transaction by misrepresentations” (id. at 688 [internal quotation marks omitted]). Gruber’s liability as a registered vehicle owner pursuant to section 388 of the Vehicle and Traffic Law is not a matter peculiarly within the defendants’ knowledge, and the plaintiffs could have easily made an inquiry as to whether Gruber would be liable under the arrangement (see R. Vig Props., LLC v Rahimzada, 213 AD3d 871, 872; DeFilippo v Hidden Ponds Assoc., 146 AD2d 737, 737). In opposition to the defendants’ prima facie showing, the plaintiffs failed to raise a triable issue of fact as to whether their reliance on the alleged misrepresentation was justified (see ISS Action, Inc. v Tutor Perini Corp., 170 AD3d at 689). For the same reasons, the court properly denied that branch of the plaintiffs’ motion which was for summary judgment on the issue of liability on the causes of action alleging fraud.

In an action to recover damages for legal malpractice, “a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused [the] plaintiff to sustain actual and ascertainable damages” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [internal quotation marks omitted]). Here, the plaintiffs’ evidentiary submission failed to establish, prima facie, that Gruber would not have been personally liable for the settlement award beyond the insurance policy but for the GEICO attorneys’ negligence (see id. at 443; Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1018).

However, “[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” (Bakcheva v Law Offs. of Stein & Assoc., 169 AD3d 624, 625). Contrary to their contention, the GEICO defendants failed to meet this burden (see Gardner v Sacco & Fillas, LLP, 216 AD3d 1139, 1140). Accordingly, the Supreme Court erred in granting that branch of their motion which was for summary judgment dismissing the cause of action to recover damages for legal malpractice.”

Kushakow v Law Offs. of Joseph B. Rosenberg 2026 NY Slip Op 00882 [246 AD3d 885]
February 18, 2026 Appellate Division, Second Department mentions but does not really discuss Judiciary Law 487. It does illustrate the problem in estate or elder law legal malpractice cases, that is, capacity to sue and standing to sue. Too often it is the beneficiary who has been injured, yet lacks either capacity or standing.

“The plaintiff commenced this action against the defendant Joseph B. Rosenberg and his firm, the defendant Law Offices of Joseph B. Rosenberg, to recover damages for legal malpractice, fraud, negligent misrepresentation, breach of fiduciary duty, unjust enrichment, and violation of Judiciary Law § 487, and for a constructive trust. The plaintiff alleged that the defendants were retained as estate planning counsel by the plaintiff’s parents, Stanley Kushakow (hereinafter Stanley) and Rita Kushakow (hereinafter Rita) in 2004. In 2005, the defendants prepared, among other things, wills and various trust documents for Stanley and Rita. The plaintiff alleged that in June 2007, Rita obtained a life insurance policy with a pay out in the sum of $10,000,000, naming Stanley as the sole beneficiary. After Stanley died in August 2014, the beneficiary of the policy was not changed, such that Stanley remained the beneficiary. On November 6, 2015, Rosenberg met with Rita to review various new estate planning documents, including, inter alia, her 2015 will, nominating Rosenberg as co-executor with the plaintiff, and a disclosure as to commissions and fees of attorney/fiduciary, which allowed for the attorney/fiduciary to receive a full commission. On September 8, 2020, Rita died. According to the plaintiff, it was the family’s intention to leave the life insurance policy proceeds to the plaintiff. The plaintiff alleged that because no amendments were made to the life insurance policy after Stanley’s death, nor were estate planning devices undertaken by the defendants, the proceeds from the life insurance policy passed through Rita’s estate, causing estate taxes to be applied and depriving the plaintiff of the full proceeds, while generating the sum of approximately $234,000 in commissions and other fees to the defendants.

The defendants moved pursuant to CPLR 3211 (a) to dismiss the amended complaint. In an order entered February 14, 2024, the Supreme Court granted the motion, concluding, among other things, that the plaintiff lacked the capacity to sue. The plaintiff appeals.”

“”[S]tanding . . . concerns the absence or presence of a sufficiently cognizable stake in the outcome of the litigation” (Nicke v Schwartzapfel Partners, P.C., 148 AD3d 1168, 1171 [2017]), whereas “[c]apacity to sue concerns a litigant’s power to appear and bring [his or her] grievance before the court” (id. at 1170). “Standing and capacity to sue are related, but distinguishable, legal concepts . . . [and] are both components of a party’s authority to sue” (Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242 [2007]; see Matter of Hamm v Board of Elections in the City of N.Y., 194 AD3d 73, 77 [2021]). Lack of standing and lack of capacity are both addressed within the scope of the same statutory subdivision, CPLR 3211 (a) (3) (see Wilmington Sav. Fund Socy., FSB v Matamoro, 200 AD3d 79, 89 [2021]).

A “proposed” administrator who has not obtained letters of administration lacks capacity to bring an action to recover damages on behalf of the decedent’s estate (see Gulledge v Jefferson County, 172 AD3d 1666, 1667 [2019]; Muriel v New York City Health & Hosps. Corp., 52 AD3d 792, 792 [2008]).

Here, the relief awarded by the Supreme Court, in the form of directing dismissal of the amended complaint based on the plaintiff’s lack of capacity, was not too dramatically unlike the relief sought by the defendants and was not prejudicial to the plaintiff (see Robinson v Big City Yonkers, Inc., 179 AD3d at 963; Matter of Blauman-Spindler v Blauman, 68 AD3d at 1106). Although in their motion pursuant to CPLR 3211 (a) to dismiss the amended complaint, the defendants did not formally and specifically request dismissal of the amended complaint on the ground of lack of capacity, they did argue for dismissal on the ground of lack of standing, based upon the plaintiff’s failure to provide letters testamentary to enable him to sue the defendants on behalf of Rita’s estate (see Matter of Blauman-Spindler v Blauman, 68 AD3d at 1106; see also Matter of Hamm v Board of Elections in the City of N.Y., 194 AD3d at 77). While the court directed dismissal of the amended complaint for lack of capacity rather than lack of standing, the basis for the dismissal was for the same reason argued by the defendants, that is, that the plaintiff had not provided letters of administration or letters testamentary enabling him to initiate a lawsuit on behalf of Rita’s estate (see Matter of Blauman-Spindler v Blauman, 68 AD3d at 1106; see also Matter of Hamm v Board of Elections in the City of N.Y., 194 AD3d at 77). Thus, the court properly treated the motion as one made, in effect, pursuant to CPLR 3211 (a) (3) to dismiss the amended complaint for lack of capacity (see Matter of Blauman-Spindler v Blauman, 68 AD3d at 1106) and properly directed dismissal of the amended complaint on that ground, as the plaintiff’s failure to provide letters of administration or letters testamentary deprived him of capacity to bring this lawsuit on behalf of Rita’s estate (see Gulledge v Jefferson County, 172 AD3d at 1667; Muriel v New York City Health & Hosps. Corp., 52 AD3d at 792). Thus, the facts plainly appearing on the papers warranted the relief granted (see Matter of Blauman-Spindler v Blauman, 68 AD3d at 1106).

Accordingly, the Supreme Court properly granted the defendants’ motion pursuant to CPLR 3211 (a) to dismiss the amended complaint.”

Cyngiel v Krigsman 2026 NY Slip Op 03942 June 24, 2026 Appellate Division, Second Department is an example of what can go wrong with an overreach.

“In an action, inter alia, for an accounting, the defendant Rima Krigsman appeals from an order of the Supreme Court, Kings County (Richard Velasquez, J.), dated July 20, 2022. The order denied, with leave to renew, that defendant’s motion pursuant to CPLR 6212(e) for an award of costs and damages caused by wrongful attachment.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Rima Krigsman pursuant to CPLR 6212(e) for an award of costs and damages caused by wrongful attachment is granted.

The plaintiff commenced this action, inter alia, for an accounting of certain rent money allegedly collected by the defendants on two parcels of real property that the plaintiff owns in common with the defendants and on a third parcel of real property owned solely by the plaintiff. The plaintiff subsequently moved pursuant to CPLR 6201(3) for an order of attachment, among other things, with respect to certain funds received by the defendant Rima Krigsman in connection with the settlement of an unrelated legal malpractice action. By order dated January 30, 2019, the Supreme Court, inter alia, granted the plaintiff’s motion and, in an order dated April 25, 2019, the court set the amount of the attachment and bond. In a decision and order dated March 10, 2021, this Court, among other things, reversed the order dated January 30, 2019, insofar as appealed from, denied the plaintiff’s motion for an order of attachment, and vacated the order dated April 25, 2019 (see Cyngiel v Krigsman, 192 AD3d 762). This Court determined that “the plaintiff made no showing of any conduct that would satisfy the requirements of CPLR 6201(3)” (id. at 763).”

“CPLR 6212(e) provides, in relevant part, that “[t]he plaintiff shall be liable to the defendant for all costs and damages, including reasonable attorney’s fees, which may be sustained by reason of the attachment . . . if it is finally decided that the plaintiff was not entitled to an attachment of the defendant’s property” (see First Natl. State Bank of N.J. v Alpha Hermetic, 59 NY2d 888, 889; Matter of Jalas v Halperin, 136 AD3d 816, 817). “[A]n attaching party is strictly liable for all damages resulting from a wrongful attachment, without regard to fault” (Matter of Eichberg v Maisano, 2 AD3d 444, 444; see Bank of N.Y. v Norilsk Nickel, 14 AD3d 140, 149).

Here, Krigsman demonstrated her entitlement to an award of costs and damages as a result of the wrongful attachment of her property. In support of her motion, Krigsman established that an order of attachment was issued in connection with her funds in the amount of $173,827.50 (cf. A & M Exports v Meridien Intl. Bank, 222 AD2d 378, 380). Moreover, on a prior appeal, this Court determined that the plaintiff was not entitled to the order of attachment because “the plaintiff made no showing of any conduct that would satisfy the requirements of CPLR 6201(3)” (Cyngiel v Krigsman, 192 AD3d at 763). Under the circumstances, the plaintiff is strictly liable for the costs and damages resulting from the wrongful attachment (see Citibank, N.A. v Keenan Powers & Andrews PC, 149 AD3d 484, 485; Bank of N.Y. v Norilsk Nickel, 14 AD3d at 149; Matter of Eichberg v Maisano, 2 AD3d at 444-445). Contrary to the plaintiff’s contention, he failed to adequately demonstrate any basis to conduct issue-specific discovery related to the motion.

Accordingly, the Supreme Court should have granted Krigsman’s motion pursuant to CPLR 6212(e) for an award of costs and damages caused by wrongful attachment.”

Ardent Harmony Fund, Inc. v BDO Trinity Ltd. 2026 NY Slip Op 02090 [248 AD3d 859]

April 8, 2026 Appellate Division, Second Department is the story of a mutual fund domiciled in the Cayman Islands who lost money to a group of New York based credit advisors in an alleged fraudulent scheme. Could the mutual fund sue the accountants in New York?

“The plaintiff is a mutual fund domiciled in the Cayman Islands. In 2014 and 2015, the plaintiff engaged the services of nonparty BDO Cayman Ltd. (hereinafter BDO Cayman), also based in the Cayman Islands, to conduct audits of the plaintiff’s financial statements for the financial years ending December 31, 2013, and December 31, 2014, respectively. BDO Cayman delegated certain work in connection with those audits to the defendant, BDO Trinity Ltd., doing business as BDO Trinidad & Tobago, a company existing under the laws of Trinidad & Tobago, with its principal place of business in Trinidad & Tobago. In November 2019, the plaintiff commenced this action, inter alia, to recover damages for accounting malpractice, alleging that the defendant was negligent in connection with those audits by failing to uncover an alleged fraud perpetrated by New York-based credit advisors with whom the plaintiff had invested the bulk of its assets.”

“”When assessing whether there is personal jurisdiction over a defendant pursuant to the ‘transacts any business’ clause of New York’s long-arm statute, courts must ask whether what the defendant did in New York constitutes a sufficient ‘transaction’ to satisfy the statute” (State of New York v Vayu, Inc., 39 NY3d 330, 332 [2023] [internal quotation marks omitted]). “This inquiry requires the court to determine, based on the facts before it, whether the defendant’s acts in the state were purposeful, that is, whether they were ‘volitional acts by which the non-domiciliary avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws’ ” (Greenfader v Chicago Sch. of Professional Psychology, 222 AD3d 845, 847 [2023], quoting State of New York v Vayu, Inc., 39 NY3d at 332).

“To satisfy the second prong, the statute requires an ‘articulable nexus’ or ‘substantial relationship’ between the cause of action sued upon, or an element thereof, and the defendants’ business transactions in New York” (Aybar v US Tires & Wheels of Queens, LLC, 211 AD3d 40, 48 [2022], quoting D&R Global Selections, S.L. v Bodega Olegario Falcon Pineiro, 29 NY3d 292, 298 [2017]; see Lowy v Chalkable, LLC, 186 AD3d 590, 592 [2020]). “While this inquiry is relatively permissive, there must be a ‘relatedness between the transaction and the legal claim such that the latter is not completely unmoored from the former’ ” (id., quoting Licci v Lebanese Can. Bank, SAL, 20 NY3d 327, 339 [2012]; see Rushaid v Pictet & Cie, 28 NY3d at 329). Jurisdiction under CPLR 302 (a) (1) “is proper even though the defendant never enters New York, so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted” (Fischbarg v Doucet, 9 NY3d at 380 [internal quotation marks omitted]).

Here, accepting as true the allegations set forth in the complaint and in opposition to the defendant’s renewed motion, and according the plaintiff the benefit of every favorable inference (see Nick v Schneider, 150 AD3d 1250, 1251 [2017]), the plaintiff failed to make a prima facie showing that the defendant was subject to personal jurisdiction in New York (see Law Off. of Cary Scott Goldinger, P.C. v Deluca, 219 AD3d 598, 600 [2023]; Bloomgarden v Lanza, 143 AD3d 850, 851 [2016]). The complaint alleged that the plaintiff, a Cayman Island fund, hired a Cayman Islands-based auditor to conduct audits of its financial statements, and that the Cayman Islands auditor delegated certain work to the defendant, which is based in Trinidad & Tobago. Jurisdictional discovery established that all of the defendant’s employees are based in Trinidad & Tobago, that all work performed by the defendant in connection with the audits took place in Trinidad & Tobago, and that the defendant’s employees never traveled to New York in connection with the audits. The defendant’s only connection to New York consisted of phone calls and approximately 60 emails with the New York-based credit advisors with whom the plaintiff’s funds were invested. These incidental communications, undertaken by the defendant merely because the credit advisors were domiciled in New York, are insufficient to establish personal jurisdiction over the defendant pursuant to CPLR 302 (a) (1) (see Musial v Donohue, 225 AD3d 1164, 1165 [2024]; Bloomgarden v Lanza, 143 AD3d at 852; CRT Invs., Ltd. v BDO Seidman, LLP, 85 AD3d 470, 471 [2011]).”

Rubin v EFP Rotenberg, LLP 2026 NY Slip Op 02803 May 5, 2026 Appellate Division, First Department is a case about reliance on an accountant and making a loan based upon that advice. Here plaintiff got oral advice as well as some written reports concerning the credit-worthyness of a borrower. This oral advice was insufficient.

“Plaintiff seeks to hold defendant EFP Rotenberg, LLP (EFP), an accounting firm, liable for the loss of his loan to EFP’s client, nonparty Continuity X Solutions, Inc. and Continuity X (together, Continuity). Plaintiff commenced this professional liability action against defendant alleging that but for the advice he received from defendant’s former employees, he would not have invested in Continuity. Specifically, plaintiff maintains that, in 2011 and 2012, defendant and its employees misrepresented the financial condition of Continuity to plaintiff during in-person meetings, as well as in EFP’s 2011 and 2012 audits of Continuity, a draft of the 2012 audit, and Continuity’s Form 10Qs. Plaintiff affirmed that these oral and written misrepresentations led him to invest $300,000 in Continuity on August 24, 2012 because they showed that the company was strong and had $11 million in receivables from AT&T. Contrary to those representations, however, Continuity had significant liabilities that were not disclosed by defendant in its audits. Continuity then defaulted on its promissory note to plaintiff, eventually went bankrupt, and was investigated by the Securities and Exchange Commission.

To impose negligence liability on EFP where, as here, no privity of contract exists between plaintiff and EFP, plaintiff must demonstrate that: (1) EFP was aware that its financial reports would be used for a particular purpose or purposes; (2) plaintiff was a known party to EFP and relied on EFP’s reports in furtherance of that purpose; and (3) EFP’s conduct links them with plaintiff and evinces their understanding of plaintiff’s reliance (see Credit Alliance Corp. v Arthur Andersen & Co., 65 NY2d 536, 551 [1985]).”

“Supreme Court should have granted defendant’s motion for summary judgment dismissing plaintiff’s amended complaint because the record does not establish that plaintiff relied on defendant’s oral and written representations to invest in Continuity (see JP Foodservice Distribs, Inc. v PricewaterhouseCoopers LLP, 33 AD3d 316, 316-317 [1st Dept 2006] [affirming the entry of summary judgment in favor of defendant where “there is no evidence of conduct on defendant’s part linking it to plaintiff and evincing its understanding of plaintiff’s reliance on the closing balance sheet it certified”]). First, plaintiff cannot prove that he reasonably relied on EFP’s September 28, 2012 audit of Continuity because it was not finalized by EFP until after plaintiff invested in Continuity (LaSalle Natl. Bank v Ernst & Young, 285 AD2d 101, 106 [1st Dept 2001] [holding that, because the accountant had only been retained a few weeks before plaintiff increased their loan, “any contention that [plaintiff] had relied up to that time on any responsibility undertaken or statement issued by [accountant] in making its own business decisions to sharply increase financing, would be manifestly insupportable”].

Second, EFP employees’ oral assurances to plaintiff in the spring and autumn of 2012 concerning Continuity’s financial condition are also insufficient to establish reliance. Accountant malpractice does not extend to “a third party’s reliance on alleged verbal assurances” (Lampert v Mahoney, Cohen & Co., 218 AD2d 580, 582 [1st Dept 1995]). At plaintiff’s deposition, he testified that EFP’s former employees did not provide him with written assurances, or any other communications, e-mails, or letters confirming what was communicated to him. He also specifically denied having seen “the drafts of any of the public filings before they were published.” Yet, over two years after his deposition, in opposition to defendant’s motion for summary judgment, plaintiff submitted an affidavit claiming to have relied on a draft of defendant’s audit report that mentioned $11 million in receivables. Plaintiff cannot create an issue of fact by submitting an affidavit that contradicts his deposition testimony (see e.g. Kistoo v City of New York, 195 AD2d 403, 404 [1st Dept 1993]).”

There is a certain category of legal malpractice cases which arise when the client recovers a settlement or verdict, but is unhappy with the fees, distributions, liens, or disbursements, and the entire process goes wrong. Maurer v Mickel 2026 NY Slip Op 03712 June 11, 2026 Appellate Division, Third Department is an example.

“This appeal arises from a dispute concerning the payment of counsel fees, disbursements and liens from a settlement recovered by plaintiffs in the underlying personal injury action stemming from a motor vehicle accident between plaintiff Michelle L. Maurer and defendant Sherrie S. Mickel. Following motion practice by plaintiffs’ original counsel, Harding Mazzotti LLP (hereinafter Harding), Supreme Court granted plaintiffs’ motion for partial summary judgment on the issue of liability and scheduled a trial as to damages. Subsequently, the relationship between Harding and plaintiffs deteriorated. Following a series of motions, Supreme Court granted Harding’s application to be relieved as counsel for plaintiffs and awarded the firm a charging lien upon any recovery obtained in the action.

Plaintiffs subsequently retained Dalmata Maloy & Burke, LLP (hereinafter Dalmata) and entered into a contingency fee agreement with that firm. The matter settled shortly before trial and the proceeds were distributed to Dalmata. Soon thereafter, Harding and Dalmata agreed to reduce their counsel fees, plaintiffs signed a general release and a stipulation of discontinuance was filed. Dalmata then prepared and transmitted to plaintiffs a statement of settlement itemizing the disbursements, liens and counsel fees to be deducted from the gross recovery. Dalmata tendered checks representing plaintiffs’ net recovery after such deductions and advised that it was holding the remaining funds in escrow pending resolution of plaintiffs’ objections to the payment of certain disbursements and lien claims from the proceeds. Upon receiving the settlement checks and statement of settlement, plaintiffs purported to terminate Dalmata for cause and demanded the remaining funds held in escrow. Plaintiffs similarly notified Harding that the firm was discharged for cause and not entitled to compensation, notwithstanding the fact that Harding was previously relieved as counsel and awarded a charging lien.

Dalmata moved by order to show cause for, among other things, an order directing payment of counsel fees and disbursements from the settlement funds, permitting the deposit of the remaining funds with the court pending resolution of the outstanding lien claims and relieving the firm as plaintiffs’ counsel. Plaintiffs, proceeding in a self-represented capacity, appeared on the return date of the motion and verbally requested a hearing as to counsel fees and disbursements. Prior to the scheduled hearing, plaintiffs filed a purported cross-motion alleging that Dalmata was discharged for cause due to legal malpractice and therefore not entitled to compensation in the underlying action. Supreme Court established a briefing schedule with regard to plaintiffs’ purported cross-motion and proceeded with the previously scheduled hearing on Dalmata’s motion. After the hearing, plaintiffs served an amended cross-motion, purporting to allege a cause of action for legal malpractice against Dalmata. Supreme Court thereafter issued an order granting Dalmata’s motion and directing the payment of counsel fees, disbursements and certain liens from the settlement funds. With regard to plaintiffs’ amended cross-motion, Supreme Court deemed it to be procedurally defective because it was unaccompanied by a notice of motion but nonetheless addressed the merits, finding that the malpractice allegations were improperly asserted in the context of plaintiffs’ personal injury lawsuit and were otherwise legally and factually deficient. This appeal by plaintiffs ensued.

Initially, Supreme Court properly denied plaintiffs’ amended cross-motion. Construing plaintiffs’ amended cross-motion as asserting a claim for legal malpractice against Dalmata, a cause of action for legal malpractice must be asserted in a separate plenary action wherein a plaintiff must establish that the defendant “failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, that this failure was the proximate cause of actual damages to the plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action but for the attorney’s negligence” (Stone Cast, Inc. v Couch, Dale Marshall P.C., 242 AD3d 1415, 1417 [3d Dept 2025] [internal quotation marks and citations omitted]; see Scott v Schwartz, 236 AD3d 1273, 1275 [3d Dept 2025]). Here, plaintiffs’ attempt to assert a malpractice cause of action via cross-motion, rather than by separate plenary action, is a legal nullity. In any event, plaintiffs’ conclusory allegations fail to set forth the essential elements to state a prima facie claim of legal malpractice (see Mid-Hudson Val. Fed. Credit Union v Quartararo & Lois, PLLC, 155 AD3d 1218, 1220 [3d Dept 2017], affd 31 NY3d 1090 [2018]; Rodriguez v Jacoby & Meyers, LLP, 126 AD3d 1183, 1185-1186 [3d Dept 2015], lv denied 25 NY3d 912 [2015]). To the extent that plaintiffs argue that the amended cross-motion was not framed as a legal malpractice cause of action, this claim is refuted by plaintiffs’ request for a preliminary conference, discovery and a jury trial on their malpractice allegations — relief ordinarily available only in a plenary action.

Even construing the amended cross-motion as merely seeking to establish that Dalmata and Harding were discharged for cause and therefore not entitled to compensation from the settlement funds, the record demonstrates that no cause existed. Harding was relieved as counsel for plaintiffs due to the irreparable breakdown of their attorney-client relationship, and Dalmata was abruptly terminated by plaintiffs only after counsel had secured a favorable settlement on their behalf. It is well settled that generalized dissatisfaction with counsel’s performance, disagreements over litigation strategy or loss of confidence do not, without more, constitute cause for discharge (see Doviak v Lowe’s Home Ctrs. Inc., 134 AD3d 1324, 1326 [3d Dept 2015], lv denied 27 NY3d 904 [2016]; Wiggins v Kopko, 105 AD3d 1132, 1134 [3d Dept 2013]). Rather, a discharge for cause requires a showing of misconduct, a significant breach of legal duty, or a failure to properly represent the client’s interests, none of which were established here (see Sprole v Sprole, 151 AD3d 1405, 1406 [3d Dept 2017]). Inasmuch as plaintiffs’ allegations failed to even raise a colorable claim of discharge for cause, the requirement for a formal evidentiary hearing on plaintiffs’ allegations was not triggered (see Kasmin v Josephs, 228 AD3d 431, 432 [1st Dept 2024]; Sprole v Sprole, 151 AD3d at 1406; Roe v Roe, 117 AD3d 1217, 1218 [3d Dept 2014]).

Finally, Supreme Court did not abuse its discretion in denying the repeated requests for recusal made by plaintiffs throughout the proceedings. Absent a statutory basis for disqualification, which was not asserted herein, recusal is a matter committed to the trial court’s sound discretion (see Judiciary Law § 14; McAuliffe v McAuliffe, 209 AD3d 1119, 1120-1121 [3d Dept 2022]). Here, plaintiffs’ unsubstantiated suspicions of bias are unsupported by the record and therefore patently insufficient to require recusal (see Ricky SS. v Christine SS., 241 AD3d 1009, 1015 [3d Dept 2025]; Kopko v Kopko, 229 AD3d 974, 976 [3d Dept 2024], lv dismissed 42 NY3d 1086 [2025]; McAuliffe v McAuliffe, 209 AD3d at 1120-1121). The record demonstrates that Supreme Court managed all stages of the proceedings with impartiality and patience, notwithstanding plaintiffs’ combative and disrespectful behavior in the courtroom, and issued rulings based on the merits of the case rather than any alleged bias against plaintiffs (see Kopko v Kopko, 229 AD3d at 976; Matter of Patrick UU. v Frances VV., 200 AD3d 1156, 1161 [3d Dept 2021]).”

An extrememly disturbing death of a four-year old is the setting for reevaluation of the quasi-judicial immunity of attorneys for the child/law guardians. Changes in the law and changes in their duties is discussed in Adams v County of Cortland 2026 NY Slip Op 26084 June 4, 2026 Supreme Court, Cortland County Mark G. Masler, J.

“This action arises from the tragic death of a child at the hands of his father on May 29, 2024, just days after his fourth birthday. In July 2021, when the child was approximately 13 months old, the Cortland County Department of Social Services (DSS) commenced a neglect proceeding pursuant to Family Court Act article 10 against the child’s biological mother (the article 10 proceeding) and Citizens Concerned for Children, Inc. (CCFC) was appointed attorney for the child. As a result of the article 10 proceeding, DSS was granted custody of the child and placed him with foster parent Samantha Adams. On January 1, 2022, Lenore LeFevre became employed as an attorney with CCFC and was assigned to represent the child. Custody of the child was restored to the mother in September 2022. On November 10, 2022, the child was removed from the custody of the mother and returned to foster care. On January 10, 2023, an order was entered in Family Court placing the child under the supervision of DSS. On August 16, 2023, the results of a DNA test confirmed that Joshua Emmons is the child’s biological father. On October 12, 2023, while the article 10 proceeding was still pending, Emmons filed a petition for custody pursuant to Family Court Act article 6 seeking sole custody and placement of the child (the article 6 proceeding). CCFC was appointed as attorney for the child in the article 6 proceeding and assigned LeFevre to represent the child therein. In December 2023, the foster mother filed a motion to intervene in the article 6 proceeding.

The father had unsupervised visitation with the child at the father’s home in Syracuse on several occasions during the pendency of the article 6 and 10 proceedings. On February 25, 2024, the foster mother reported to DSS employees that upon returning from visits with the biological father, the child had told her that ” ‘Daddy Josh hit me, and I don’t like it,’ that he had been struck on both his head and buttocks, and that he did not want to go back to his biological father’s residence” (NY St Cts Elec Filing [NYSCEF] Doc No. 1, complaint, ¶ 68). On March 4, 2024, the foster mother met with DSS employees to express her concern that the child was being abused by the biological father and did not want to return to the father’s residence (complaint ¶ 75). Plaintiff alleges that the foster mother withdrew her motion to intervene in the custody proceeding in reliance upon the recommendations and advice of DSS personnel, who represented that withdrawal of the motion would enable DSS to continue to supervise and monitor the child’s safety while he was in the custody of the biological father.

At a settlement conference that was held in Family Court on March 13, 2024 — in which LeFevre and counsel for DSS participated — it was agreed that the biological parents would have joint legal custody, the father would have primary placement, and that the permanency hearing in the article 10 proceeding still pending against the mother would be canceled. On March 26, 2024, the child began living with the biological father in Syracuse in accordance with the agreement made at the settlement conference. An order implementing the agreement regarding custody of the child was entered in Family Court on April 4, 2024. On May 26, 2024, the child was transported to Upstate University Hospital with injuries that included blunt force trauma to his head. The child died from his injuries on May 29, 2024. In 2025, the biological father pled guilty to first-degree manslaughter and was sentenced to a 25-year prison term.

The foster mother commenced this action as administrator of the child’s estate contending, in summary, that defendants were negligent in failing to properly investigate the father’s fitness as a parent, including the failure to discover that he had been previously convicted of violating Penal Law § 260.10 (1) for endangering the welfare of a child, and that DSS was additionally negligent in failing to investigate the foster mother’s reports that the child had been abused by the biological father. LeFevre and CCFC made a pre-answer motion to dismiss based on the assertion they have judicial immunity from all claims asserted in the action (NYSCEF motion number one). Cortland County made a pre-answer motion to dismiss based on the arguments that it is entitled to governmental and judicial immunity and, further, that it owed R.B. no duty for the allegedly negligent acts (NYSCEF motion number two). Oral argument was heard, in person, on April 8, 2026.”

“The complaint alleges, in summary, that R.B. suffered damages as a result of LeFevre having breached the duty she owed to R.B. as his attorney by, among other things, failing to: properly investigate the biological father’s parental fitness, speak with R.B. about his experiences with the biological father and the child’s wishes during the proceedings, and gain a thorough knowledge of the child’s circumstances (see complaint ¶¶ 2, 12-19, 47-52, 56-60, 62-66, 73-74, 80, 82-83, 85-91, 103-116). On a motion to dismiss, these allegations must be accepted as true and plaintiff must be accorded every possible favorable inference. Accordingly, the complaint sufficiently pleads claims against the AFC for legal malpractice (see Miazga v Assaf, 136 AD3d 1131, 1133 [3d Dept 2016]; lv dismissed 27 NY3d 1078 [2016]; Bixby v Somerville, 62 AD3d 1137, 1139 [3d Dept 2009]), and for wrongful death arising therefrom, for which CCFC would be liable as her employer. LeFevre and CCFC do not move to dismiss based on a failure to state a cause of action, but rather based solely on the contention that the AFC is entitled to absolute quasi-judicial immunity in this action that was commenced on behalf of the child for claims arising from a custody proceeding, citing Bluntt v O’Connor (291 AD2d 106, 116-119 [4th Dept 2002], lv denied 98 NY2d 605 [2002]).

Bluntt does not establish that the AFC is entitled to immunity in this action. In Bluntt, the court held that an action brought by a parent asserting a claim for professional negligence against a law guardian appointed for the child in a custody proceeding should have been dismissed for lack of standing. The parent lacked standing to bring a claim as a representative of the child, pursuant to CPLR 1201, because the parent’s interests were adverse to those of the child (see id. at 113-114). The parent also lacked standing to bring an action individually because the parent was not in privity with the law guardian (see id. at 114-115). The Appellate Division, Fourth Department, noted that the motion to dismiss the action based on the parent’s lack of standing should have been granted (see id. at 113, 119-120). This determination should have ended the inquiry. However, no doubt due to the important policy considerations at stake, the court noted in dicta that, were it to address the merits, it would have found that a law guardian acting primarily as an aid to the court in determining the best interests of a young child, rather than as an advocate for the child’s wishes, has absolute quasi-judicial immunity from claims made by “disgruntled parents” for acts within the scope of his or her appointment (id. at 116; see id. at 115-119). Thus, the Bluntt dicta stands, if at all, for the proposition that a law guardian is entitled to immunity against claims made by a parent, in his or her individual capacity, when the law guardian was acting as an aid to the court.^FN1

This action is not brought by a parent of R.B. who had an independent interest in the underlying custody proceeding. Rather, it is brought directly on behalf of the child by the administrator of his estate. This alone makes Bluntt inapplicable. Bluntt is further distinguishable because it was decided based on the policy consideration that law guardians should be entitled to quasi-judicial immunity to the extent they acted as an arm of the court in providing independent judgment to aid the court in determining the best interests of the affected child. This is not the role of an attorney for the child, who is required to act as an advocate for the child and not as an independent investigator or advisor to the court.

When Bluntt was decided in 2002, attorneys were appointed to represent children in custody proceedings as law guardians. There was traditionally long-standing ambiguity about the proper role of law guardians.

“First and foremost, the Law Guardian is the attorney for the child and must take an active role in the proceedings. In that role as attorney, the Law Guardian has the statutorily directed responsibility to represent the child’s wishes as well as to advocate the child’s best interest. Because the result desired by the child and the result that is in the child’s best interest may diverge, Law Guardians sometimes face a conflict in such advocacy” (Matter of Carballeira v Shumway, 273 AD2d 753, 755 [3d Dept 2000], lv denied 95 NY2d 764 [2000] [internal quotation marks and citations omitted]; see Merril Sobie, Prac Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 241).

Nonetheless, “a Law Guardian may properly attempt to persuade the court to adopt a position which, in the Law Guardian’s independent judgment, would best promote the child’s interest, even if that position is contrary to the wishes of the child” (id. [internal quotation marks and citations omitted]). Thus, as can also be gleaned by reviewing the court’s analysis in Bluntt, law guardians were often seen as exercising their independent judgment to aid the court in determining the best interests of the child rather than acting as advocates for the child (see Bluntt v O’Connor, 291 AD2d at 116-118 [noting the conflict between the roles of law guardian as advocate of the child and as representative of the court and concluding that the court benefits in determining the best interests of the child when the law guardian acts as a representative of the court by exercising his or her impartial judgment]). It was this role as an independent aid to the court that the Appellate Division, Fourth Department, opined justified extending quasi-judicial immunity to law guardians.

The role of a law guardian was later substantially clarified in October 2007, when section 7.2 of the Rules of the Chief Judge (22 NYCRR) was promulgated designating law guardians appointed pursuant to Family Court Act § 249 as attorneys for the child.^FN2 This rule also provides, in relevant part,

“In [custody proceedings], where the child is the subject, the attorney for the child must zealously advocate the child’s position.

“(1) In ascertaining the child’s position, the attorney for the child must consult with and advise the child to the extent of and in a manner consistent with the child’s capacities, and have a thorough knowledge of the child’s circumstances.

“(2) If the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child’s best interests. The attorney should explain fully the options available to the child, and may recommend to the child a course of action that in the attorney’s view would best promote the child’s interests.

“(3) When the attorney for the child is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child, the attorney for the child would be justified in advocating a position that is contrary to the child’s wishes. In these circumstances, the attorney for the child must inform the court of the child’s articulated wishes if the child wants the attorney to do so, notwithstanding the attorney’s position” (22 NYCRR 7.2 [d]).

Any former ambiguity in the role of attorneys for the child has been conclusively resolved by rule 7.2 and the recognition that an attorney for the child “is an advocate and neither an investigative arm of the court nor an advisor to the court” (Matter of VanDee v Bean, 66 AD3d 1253, 1255 [3d Dept 2009] [internal quotation marks, brackets, and citations omitted]). Indeed, an attorney for the child is permitted to adopt a position that does not reflect the child’s wishes in only two circumstances: “specifically, when he or she ‘is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child’ ” (Matter of Jennifer VV. v Lawrence WW., 182 AD3d 652, 653-654 [3d Dept 2020], quoting 22 NYCRR 7.2 [d] [3] [additional citation omitted]). In this regard, an attorney for the child may conclude that a child lacks the capacity for knowing judgment only when the attorney has “a thorough knowledge of the child’s circumstances” and consults with, and advises, the child in a manner consistent with the child’s capacities (22 NYCRR 7.2 [d] [1]; see Matter of Jennifer VV. v Lawrence WW., 182 AD3d at 654-655; Matter of Schenectady County Dept. of Social Servs. v Joshua BB., 168 AD3d 1244, 1245 [3d Dept 2019]).^FN3 Indeed, the attorney for the child has a duty to advise the court of the child’s wishes even in circumstances when the attorney for the child concludes that he or she is justified in advocating a contrary position (see 22 NYCRR 7.2 [d] [3]; Matter of K.G. v C.H., 163 AD3d 67, 81 n 5 [1st Dept 2018]). These provisions emphasize the role of an attorney as an advocate rather than an arm of the court (see Venecia V. v August V., 113 AD3d 122, 125-126 [1st Dept 2013]; Matter of Mark T. v Joyanna U., 64 AD3d 1092, 1093-1094 [3d Dept 2009]).

Thus, when LeFevre was appointed to represent R.B. in the custody proceeding commenced by the biological father, she was required to obtain a thorough knowledge of the child’s circumstances, to consult with and advise him in accordance with his capacities, and to advocate on his behalf. In other words, she was required to act as his advocate and not as an independent aid to the court in determining R.B.’s best interests. Accordingly, even if the principle that was discussed in Bluntt was extended to cover claims brought directly on behalf of a child, rather than being limited to those brought by a parent, she was not acting as in a capacity that would have potentially entitled her to immunity under Bluntt.

The question thus becomes whether an attorney for the child has immunity against claims of legal malpractice asserted by a child the attorney represented in a custody proceeding. This issue does not appear to have previously been squarely addressed by a New York State court. However, the United States District Court for the Eastern District of New York, relying on an opinion of the Appellate Division, Third Department, which set forth the standards for effective representation of children in custody proceedings, has recognized that a cause of action for legal malpractice against an attorney for the child exists under facts similar to those alleged in this action (see Zubko-Valva v County of Suffolk, 2022 WL 2197137, *6, 2022 US Dist LEXIS 108489, *18-21 [ED NY June 17, 2022, No. 220-cv-2663, Korman, J.], citing Matter of Mark T. v Joyanna U., 64 AD3d at 1094-1095). Further, the Appellate Division, First Department, noted that an attorney for the child “no less than the attorneys for the parties, is serving as a professional and must be equally accountable to professional standards” in holding that a parent may assert legal malpractice as an affirmative defense to a fee claim of an attorney for the child (Venecia V. v August V., 113 AD3d at 126). If a parent may assert legal malpractice as a defense to a purely financial harm, then certainly a child who bears actual harm from a failure to meet professional standards should be permitted to assert claims of legal malpractice against an attorney for the child. Based on the foregoing, the motion to dismiss made by Lefevre and CCFC must be denied.”