Pre-Answer Dismissal of complaints is given outsized importance in legal malpractice litigation.  Anecdotally, a higher percentage of legal malpractice cases are dismissed pre-answer than those in the general population of litigation cases.  Zeppieri v Vinson 2021 NY Slip Op 00348
Decided on January 21, 2021 Appellate Division, Third Department describes how 3211(a)(1) is used.

“”A motion pursuant to CPLR 3211 (a) (1) to dismiss the complaint as barred by documentary evidence may be properly granted only if the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law. To qualify as documentary evidence, the evidence must be unambiguous and of undisputed authenticity” (Koziatek v SJB Dev. Inc., 172 AD3d 1486, 1486 [2019] [internal quotation marks and citations omitted]). “[I]t is clear that judicial records, as well as . . . any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” (Jenkins v Jenkins, 145 AD3d 1231, 1234 [2016] [internal quotation marks and citations omitted]; see Magee-Boyle v Reliastar Life Ins. Co. of N.Y., 173 AD3d 1157, 1159 [2019] [internal quotation marks, brackets and citation omitted]).[FN1]

In support of their motion, defendants submitted the July 2018 order, the transcript of the bench trial and an email that had been accepted into evidence. The July 2018 order clearly qualifies as documentary evidence. As Supreme Court observed, the July 2018 order “refutes plaintiffs’ primary contention that defendants’ failure to object to Flacke’s testimony was the proximate cause of plaintiffs’ damages.” Where Supreme Court specifically states that its order is based on the decision from the underlying action, we find ourselves with “the proper case” in which a judicial record qualifies as appropriate documentary evidence sufficient to defeat the action (Jenkins v Jenkins, 145 AD3d at 1234). Moreover, even if the court also relied on the underlying transcript, contrary to plaintiff’s contention, there is no per se prohibition on said reliance, where, as here, the contents of the transcript are undeniable (see Tyree v Castrovinci, 164 AD3d 1399, 1400 [2018]). We agree that Supreme Court properly granted defendants’ motion to dismiss the amended complaint based upon documentary evidence (see Ganje v Yusuf, 133 AD3d 954, 957 [2015]; Doller v Prescott, 167 AD3d 1298, 1300 [2018]). Given our finding, the remainder of plaintiffs’ arguments are academic.”

Law Off. of Mark S. Helweil v Karambelas  2021 NY Slip Op 00260 Decided on January 19, 2021 Appellate Division, First Department shows how courts place a very high premium on paying attorney bills.  Basically put, if the attorney send a bill, a written, immediate and specific objection must be made.  Faiure to do so dooms a legal malpractice defense later.

“Plaintiffs made a prima facie showing of entitlement to judgment on the basis of an account stated. Defendant client’s signed retainer agreement, payment of a $35,000 retainer, agreement to pay an hourly rate of $600 for legal services, agreement to pay all bills for legal fees, costs, and disbursements immediately upon receipt, as well as four partial payments toward the bills, constituted an acknowledgment of amounts owed and her assent (see Morrison Cohen Singer & Weinstein v Ackerman, 280 AD2d 355, 356 [1st Dept 2001]). Defendant’s failure to lodge a timely, specific objection to the billing was insufficient to rebut any inference of an agreement to pay the stated amount (see Shaw v Silver, 95 AD3d 416 [1st Dept 2012]). Moreover, evidence in the form of detailed monthly invoices addressed to defendant, together with affidavits indicating that the invoices were regularly and timely forwarded to and received by defendant, established plaintiffs’ compliance with the retainer agreement’s regular billing requirements (see Berkman Bottger & Rodd, LLP v Moriarty, 58 AD3d 539, 539 [1st Dept 2009]).

Defendant’s objections raised after the commencement of this action were untimely and insufficient (see Whiteman, Osterman & Hanna, LLP v Oppitz, 105 AD3d 1162, 1163-1164 [3d Dept 2013]; see also L.E.K. Consulting LLC v Menlo Capital Group, LLC, 148 AD3d 527, 528 [1st Dept 2017]). Further, defendant’s reliance on her eighth affirmative defense to raise issues of fact concerning the account stated claim is unavailing. Those allegations are insufficient to rebut the prima facie showing of an account stated (see Abyssinian Dev. Corp. v Bistricer, 133 AD3d 435, 436 [1st Dept 2015]). Defendant’s failure to consolidate her legal malpractice action, which she commenced subsequent to this legal fees action, precludes review of whether her claim is sufficiently intertwined with the account stated cause of action (see Emery Celli Brinckerhoff & Abady, LLP v Rose, 111 AD3d 453, 454 [1st Dept 2013).”

Gramted. its a case from small claims court, and granted, it’s the Appellate Term, not the Appellate Division, but the rules recited in Law Offs. of Lydia C. Hills, P.C. v Holguin  2021 NY Slip Op 50032(U) [70 Misc 3d 135(A)] Decided on January 15, 2021 Appellate Term, Second Department remain true.

“Attorneys representing clients in domestic relations matters are subject to particular rules (see 22 NYCRR part 1400), which ” ‘were designed to address abuses in the practice of matrimonial law and to protect the public’ ” (Rosado v Rosado, 100 AD3d 856, 856 [2012], quoting Hovanec v Hovanec, 79 AD3d 816, 817 [2010]). The rules include a requirement that attorneys in such matters provide prospective clients with a written statement of their right “to receive a written, itemized bill on a regular basis, at least every 60 days” (22 NYCRR 1400.2), which right must also be reflected in the written retainer agreement for the attorney’s services (see 22 NYCRR 1400.3 [9]). A matrimonial attorney seeking to recover unpaid legal fees must demonstrate substantial compliance with the rules applicable to attorneys representing clients in domestic relations matters as an essential element of his or her prima facie case (see Greco v Greco, 161 AD3d 950, 951-952 [2018]; Montoya v Montoya, 143 AD3d 865, 865-866 [2016]; Hovanec v Hovanec, 79 AD3d 816, 816 [2010]; Pillai v Pillai, 15 AD3d 466, 467 [2005]; see also Gottlieb v Gottlieb, 101 AD3d 678, 679 [2012]; cf. Edelman v Poster, 72 AD3d 182 [2010]). Since, at trial, plaintiff failed to demonstrate that it had substantially complied with the rule requiring it to provide periodic billing statements to defendant at least every 60 days, plaintiff failed to make out a prima facie case, and the judgment in its favor failed to comply with substantive law (see CCA 1804, 1807).

“Whether specific conduct constitutes legal malpractice is a factual determination to be made by the trier of fact” (Weintraub v Petervary, 57 Misc 3d 153[A], 2017 NY Slip Op 51595[U], *2 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]). Defendant failed to provide any expert testimony (see Healy v Finz & Finz, P.C., 82 AD3d 704, 706 [2011]; Northrop v Thorsen, 46 AD3d 780, 782 [2007]) or to otherwise substantiate her claim of legal malpractice. In this circumstance, we find no basis to disturb the Civil Court’s implicit conclusion that defendant did not establish a failure by plaintiff “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 [defendant] to sustain actual and ascertainable damages” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007] [internal quotation marks omitted]).”

Personal injury claims that a person might have can become the property of the Bankruptcy estate.  It is a tricky question depending on whether the bankruptcy case is in Chapter 7, 11 or 13.  Pre-Petition claims are different from post-petition claims, yet they all came together in Horvath v Budin, Reisman, Kupferberg & Bernstein  LLP 2021 NY Slip Op 30105(U)
January 13, 2021 Supreme Court, New York County Docket Number: 161339/2019 Judge: David Benjamin Cohen.

“In 2009, plaintiff filed a Chapter 13 Petition in the United States Bankruptcy Court for the District of New Jersey (“the Bankruptcy Court”) under Case No. 09-38537-KCF. Doc. 22. Plaintiff was represented in the bankruptcy proceeding by Jules Rossi, Esq. Doc. 22. On September 15, 2010, plaintiff was allegedly injured while he was a passenger in an elevator in a building in Manhattan. Doc. 21 at par. 4. Plaintiff thereafter retained the Law Offices of Michael Lamonsoff (“Lamonsoff’) to commence a personal injury action on his behalf against Gumley Haft Kleier Inc. (“GHK”) and Eltech Industries (“Eltech”). The action against GHK and Eltech was commenced in the Supreme Court, Bronx County in 2010 under Index Number 310013/10 (“the Bronx County action”). Doc. 17 at par. 16. Lamonsoff also represented plaintiff in an unrelated personal injury action commenced in New York County in 2010 under Index Number 115395/10 (“the New York County action”). Doc. 17 at par. 17.
The Bankruptcy Court confirmed the Chapter 13 plan on December 28, 2011. Doc. 23. ”

“In 2014, Eltech moved to dismiss the complaint in the Bronx County action based on the pending bankruptcy matter. Doc. 17 at par. 26. By order dated December 2, 2014, the Supreme Court, Bronx County denied the motion to dismiss. Doc. 26. By order dated March 7, 2017, the Appellate Division, First Department reversed and dismissed the complaint in the Bronx County action, stating, inter alia, that:

Plaintiffs prolonged failure to disclose this lawsuit to the Bankruptcy Court renders him judicially estopped from pursuing it … Plaintiff took an inconsistent position in the bankruptcy proceedings – that he did not have other legal claims than those listed on his schedule of assets and liabilities – and that position was adopted by the Bankruptcy Court when it confirmed the plan.”

“Here, as noted above, plaintiff claims that defendant’s actions, or inaction, regarding his bankruptcy resulted in the dismissal of the Bronx County action. Specifically, he alleges that: Defendant BUDIN, REISMAN, KUPFERBERG & BERSTEIN, LLP committed legal malpractice by failing to exercise that degree of care, skill and diligence commonly possessed by a member of the legal community. Doc. 21 at par. 60.
Plaintiff also alleges that he would have succeeded on his claim in the Bronx County action “but for the defendant’s negligence and legal malpractice.” Doc. 21 at pars. 62, 78. Further, plaintiff alleges that he sustained damages as a result of defendant’s negligence. Docs. 69, 82.
Since the complaint, viewed in the light most favorable to plaintiff, pleads a viable claim sounding in legal malpractice, that branch of defendant’s motion seeking dismissal pursuant to CPLR 3211(a)(7) is denied.”

 

It is an almost ironclad requirement that experts be used in legal malpractice settings, either to state the standard of ordinary rasonable skill and knowledge commonl possessed by an attorney.  In Lieberman v Green 2021 NY Slip Op 00163 Decided on January 13, 2021 Appellate Division, Second Department the client (acting pro se) didn’t hava an expert.  The result was fatal.

“The plaintiffs moved for summary judgment dismissing the counterclaim alleging legal malpractice, and the defendant opposed. In an order dated July 16, 2018, the Supreme Court, granted the plaintiffs’ motion. The defendant appeals. We affirm.

“‘In moving for summary judgment dismissing a [cause of action] alleging legal malpractice, [movant] must present evidence establishing, prima facie, that it did not breach the duty [*2]to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, or that the plaintiff did not sustain actual and ascertainable damages as a result of such deviation'” (Dominguez v Mirman, Markovitz & Landau, P.C., 180 AD3d 646, 647, quoting Mazzurco v Gordon, 173 AD3d 1003, 1003). Here, the plaintiffs submitted evidence, including an expert affirmation, demonstrating, prima facie, that, given the totality of circumstances under which the parties made their agreement on March 9, 2012, the plaintiffs did not breach their duty to exercise the ordinary reasonable skill and knowledge commonly possessed by an attorney by having the terms of the stipulation transcribed by the stenographer, and agreeing to later present such stipulation to the court to be so-ordered.

In opposition, the defendant, who did not submit an expert affidavit, failed to raise a triable issue of fact. His opposition consisted entirely of speculative and conclusory assertions (see Sang Seok NA v Schietroma, 163 AD3d 597, 599; Harris v Barbera, 163 AD3d 534, 535; Schadoff v Russ, 278 AD2d 222, 223). Accordingly, we agree with the Supreme Court’s determination granting the plaintiffs’ motion for summary judgment dismissing the defendant’s counterclaim alleging legal malpractice.”

Both Collateral Estoppel and Res Judicata were applied to two different lawsuits each arising from a Bankruptcy Proceeding.  Plaintiff loses all around in Bauhouse Group I, Inc. v Kalikow  2021 NY Slip Op 00001
Decided on January 05, 2021 Appellate Division, First Department.

“In the first order, the court correctly concluded that plaintiffs’ legal malpractice claim was barred by the doctrine of collateral estoppel in light of the prior findings in a related bankruptcy proceeding. The doctrine of collateral estoppel will “preclude[] a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). The court properly concluded that plaintiffs were in privity with the debtors in the bankruptcy proceeding. Factual claims concerning the validity of certain loan transactions were asserted and decided against the plaintiffs in the bankruptcy proceedings. These are the same loan transactions and factual allegations underlying the claims made in the malpractice action.

Plaintiffs’ argument that collateral estoppel does not apply to these actions because defendants were not parties to the bankruptcy proceeding is not persuasive. The law is clear that a party seeking to invoke the doctrine of collateral estoppel need not have been a party to the prior action (Vavolizza v Krieger, 39 AD2d 446, 447-448 [1st Dept 1972], affd 33 NY2d 351 [1974]). Plaintiffs’ argument that their claims are not barred by collateral estoppel because there was no claim for legal malpractice before the Bankruptcy Court also fails. As the court found, collateral estoppel precludes the relitigation of factual issues that were necessarily decided in a prior action against the same party or its privies, regardless of whether the causes of action were the same (Korea First Bank of N.Y. v Noah Enters., Ltd., 12 AD3d 321, 323 [1st Dept 2004], lv denied 4 NY3d 710 [2005] ).”

“The second order is subject to dismissal for many of the same reasons as the first order. Most fundamentally, however[*2], the court there properly applied the doctrine of res judicata to preclude plaintiffs from re-litigating the same exact claims in the second action that were raised and dismissed, with prejudice, in the first action. The doctrine of res judicata dictates that “once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (Marinelli Assoc. v Helmsley-Noyes Co., 265 AD2d 1, 5 [1st Dept 2000]). The requirements of res judicata are plainly met here. The first action — which involved the exact same parties, transactions, and claims — was brought to a final conclusion by the first order, wherein the complaint was dismissed with prejudice. It is indisputable that plaintiffs’ claims in the second action arise out of the same facts and are, in fact, identical to those alleged in the first action. Considering the allegations of the bankruptcy proceeding, the second action was in fact plaintiffs’ third attempt to recover based upon the same set of facts arising from the same transaction.”

Law Firm of Alexander D. Tripp, P.C. v Fiorilla
2020 NY Slip Op 34362(U) December 31, 2020 Supreme Court, New York County Docket Number: 654991/2019 Judge: Lucy Billings is a factual mess.  What is clear, is that the motion for summary judgment was unopposed and quickly granted.

“The malpractice that defendant claims occurred November 9, 2017, when his attorney in the Citigroup Global Markets proceeding agreed with Citigroup Global Markets’ attorney that its motion for sanctions raised no factual issues, obviating the need for an evidentiary hearing. Defendant claims that the waiver of an evidentiary hearing was malpractice, because he did raise factual issues that would have been determined in his favor at a hearing, Sejfuloski v. Michelstein & Assoc., PLLC, 137 A.D.2d 549, 549-50 (1st Dep’t 2016); Tenasca Delgado v. Bretz &
Coven, LLP, 109 A.D.3d 38, 43-44 (1st Dep’t 2013), and would have reduced the $213,832.50 award of sanctions, attorneys’ fees, and expenses against him. Baram v. Person, 153 A.D.3d 1183, 1183 (1st Dep’t 2017); Caso v. Miranda Sambursky Sloane Sklarin Vereniotis LLP, 150 A.D.3d 422, 423 (1st Dep’t 2017) i O’Neal v. Muchnick Golieb & Golieb, P.C., 149 A.D.3d 636, 636 (1st Dep’t 2017); Rubin v. Duncan, Fish & Vogel. L.L.P., 148 A.D.3d 432, 433
(1st Dep’t 2017). The absence of a continuing attorney-client relationship between plaintiff and defendant when this alleged malpractice occurred, however, bars defendant’s claim for legal malpractice against plaintiff. Seaman v. Schulte Roth & Zabel LLP, 176 A.D.3d 538, 538-39 (1st Dep’t 2019) i Barrett v. Goldstein, 161 A.D.3d 472, 473 (1st Dep’t 2018); Cabrera v. Collazo, 115 A.D.3d 147, 153 (1st Dep’t 2014); Waggoner v. Caruso, 68 A.D.3d 1, 5 (1st Dep’t 2009), aff’d, 14 N.Y.3d 874 (2010).”

Bianco v Law Offs. of Yuri Prakhin, 2020 NY Slip Op 07849 [189 AD3d 1326]
December 23, 2020 Appellate Division, Second Department  tells a familiar legal malpractice story.  Plaintiff slips and falls on ice on subway steps in NYC.  Attorneys hired by her successfully file a Notice of Claim against NYC, but do not file against the NYCTA.  Service of a Notice of Claim is a condition prerequisite to suing the NYCTA.  Case goes on to attorney B and attorney C.

“The plaintiff allegedly slipped and fell on ice on a subway staircase in Brooklyn on January 21, 2014. Shortly thereafter, she retained the defendants Law Office of Yuriy Prahkin and Yuriy Prahkin (hereinafter together the Prahkin defendants) to represent her in a personal injury action relating to the fall. The Prahkin defendants served a timely notice of claim on the City of New York, but failed to do so with respect to the New York City Transit Authority (hereinafter NYCTA). In July 2014, the plaintiff retained the defendants Schneider Law Group and William Z. Schneider (hereinafter together the Schneider defendants) as successor counsel to the Prahkin defendants. The Schneider defendants, in turn, retained the defendants Steven C. Kletzkin, PLLC, and Steven C. Kletzkin (hereinafter together the Kletzkin defendants) as trial counsel representing the plaintiff in an action against the NYCTA.

[*2] In February 2015, the Schneider defendants served an untimely notice of claim upon NYCTA. In March 2015, the Kletzkin defendants commenced an action on the plaintiff’s behalf against the NYCTA to recover damages for the personal injuries she allegedly sustained as a result of the slip and fall. In an order dated April 15, 2016, the Supreme Court granted the NYCTA’s motion to dismiss the complaint in the personal injury action against the NYCTA “with prejudice, and no opposition submitted thereto.”

There is no mystery in the legal malpractice claims.  The mystery resides in how a Judiciary Law 487 claim survives.  The Court does not elucidate.

“Contrary to the Kletzkin defendants’ contention, the complaint adequately states a cause of action to recover damages for violation of Judiciary Law § 487. Contrary to the Schneider defendants’ contention, the cause of action alleging violation of Judiciary Law § 487 is not duplicative of the cause of action alleging legal malpractice. “A violation of Judiciary Law § 487 requires an intent to deceive (see Judiciary Law § 487), whereas a legal malpractice claim is based on negligent conduct” (Moormann v Perini & Hoerger, 65 AD3d 1106, 1108 [2009]; see Bill Birds, Inc. v Stein Law Firm, P.C., 164 AD3d 635, 637 [2018], affd 35 NY3d 173 [2020]).”

CPLR 3211(a)(1) allows for dismissal based upon “documentary evidence.”  Such a win is usually “on the merits” and generally allows for later res judicata and collateral estoppel treatment.  Dismissal under CPLR 3211(a)(7), while more common, is not on the merits and is not “with prejudice.”  the later effects are much smaller, and a case can be repled under CPLR 205.  Cali v Maio  2020 NY Slip Op 07853 Decided on December 23, 2020 Appellate Division, Second Department displays the reasoning process.

“Contrary to the determination of the Supreme Court, the defendants failed to establish that they were entitled to dismissal of the cause of action to recover damages for legal malpractice pursuant to CPLR 3211(a)(1). “To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Gould v Decolator, 121 AD3d 845, 847; see Leon v Martinez, 84 NY2d 83, 88). Construing the complaint liberally, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible inference, as we are required to do (see Leon v Martinez, 84 NY2d at 87; Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996), the documentary evidence submitted by the defendants failed to utterly refute the plaintiff’s allegations of legal malpractice, as augmented [*2]by her affidavit in opposition to their motion (see Garcia v Polsky, Shouldice & Rosen, P.C., 161 AD3d 828, 830; Anderson v Armentano, 139 AD3d 769, 771).

However, the defendants were entitled to dismissal of the causes of action to recover damages for legal malpractice and breach of contract under the branch of their motion which was pursuant to CPLR 3211(a)(7). “On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), ‘[w]e accept the facts as alleged in the complaint as true, accord plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory'” (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 141, quoting Leon v Martinez, 84 NY2d at 87-88).

“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 plaintiff to sustain actual and ascertainable damages” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, quoting McCoy v Feinman, 99 NY2d 295, 301). “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442). Here, the plaintiff failed to adequately plead specific factual allegations showing that, but for the defendants’ alleged negligence, she would have obtained a more favorable outcome in the foreclosure action (see Janker v Silver, Forrester & Lesser, P.C., 135 AD3d 908, 909; Benishai v Epstein, 116 AD3d 726, 728). Although the plaintiff’s alleged damages are based on the loss of her home due to foreclosure, the plaintiff failed to allege that, but for the defendants’ negligence, the foreclosure action would not have resulted in a judgment of foreclosure and sale. Accordingly, the complaint failed to state a cause of action to recover damages for legal malpractice and the defendants were entitled to dismissal of that cause of action pursuant to CPLR 3211(a)(7) (see Janker v Silver, Forrester & Lesser, P.C., 135 AD3d at 909; Benishai v Epstein, 116 AD3d at 728). Since the breach of contract cause of action arose from the same operative facts as the legal malpractice cause of action and did not allege distinct and different damages it was duplicative of the legal malpractice cause of action and thus, also subject to dismissal (see Prott v Lewin & Baglio, LLP, 150 AD3d 908, 910; Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d 812, 813-814).

The defendants also were entitled to dismissal of the third cause of action, which alleged that the defendants overbilled the plaintiff for legal fees. Although overbilling can constitute a cause of action to recover damages for breach of contract by a client against her or his attorney (see O’Connor v Blodnick, Abramowitz and Blodnick, 295 AD2d 586, 587), here, that cause of action was barred by res judicata under CPLR 3211(a)(5). The defendants submitted, among other things, an arbitration case report which indicated that the parties had participated in an arbitration relating to fees owed for legal services rendered by the defendants. The plaintiff’s allegations evidence that her overbilling cause of action is directly related to the fee dispute, and that it should have been litigated during that arbitration proceeding. Thus, the final arbitration award bars the cause of action to recover damages for overbilling (see CPLR 3211[a][5]; Breslin Realty Dev. Corp. v Shaw, 72 AD3d 258, 263, 265; see also Mahler v Campagna, 60 AD3d 1009, 1012).”

 

As  Schoolman v. NcAuliffe 2020 NY Slip Op 34228(U) December 21, 2020 Supreme Court, Suffolk County Docket Number: 4311/2019 Judge: Sanford Neil Berland demonstrates, bankruptcy can serve as a sheering tool. Enter into bankruptcy and sone/all of your possessions are gone.

“”‘Upon the filing of a voluntary bankruptcy petition. all property which a debtor owns.including a cause of action, vests in the bankruptcy estate,”‘(Burbacki v. Abrams, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, 172 AD3d 1300, l 300. 99 NYS3d 671 [2d Dept 2019), quoting Keegan v. Moriarty-Morris, 153 AD3d 683, 684 (2d Dept 20 17), citing
11 USC§ 541 [a][IJ; In re Oshome, 2013 WL 113177662, *2, 2013 US Dist LEXIS 190402, *5-6 {SONY 2013)). Therefore, a plaintiff may not maintain a legal malpractice cause of action in his or her individual capacity relating to a bankruptcy. The right to sue is only exercisable by
the trustee in bankruptcy. whether the claim asserted in the complaint accrued prior to the filing of the bankruptcy petition. or post-petition (see 11 USC § 541 [a][ I): Burbacki v. Abrams, Fensterman, Eiseman, Formato, Ferrara & Wolf, LLP, supra 172 AD3d at 1300, citing Williams v. Stein, 6 AD3d 197, 775 NYS2d 255 (1st Dept 2004). /n re Osborne, 2013 WL 11317662, *2-3. 2013 US Dist LEXIS I 90402. *7-8. Jn re Alvarez, 224 F3d 1273. 1275-1278 [11th Cir 2000)). Therefore, to the extent that plaintiff asserts claims for legal malpractice in connection with defendant’s representation of the three companies, plaintiff lacks the capacity to sue as a matter of bankruptcy law.”