In a legal malpractice setting, Plaintiff’s motion for partial summary judgment almost never wins. U Joon Sung v Park  2020 NY Slip Op 01571
Decided on March 10, 2020 Appellate Division, First Department illustrates the problem.  Although liability seems obvious, Plaintiff was unable to demonstrated, prima facie that he would have succeeded in proving a “serious injury” within the meaning of the insurance law.

“In this legal malpractice action, plaintiff failed to establish prima facie that, but for defendants’ alleged negligence in representing him in the underlying personal injury action, he would have prevailed in that action (see Brooks v Lewin, 21 AD3d 731, 734 [1st Dept 2005], lv denied 6 NY3d 713 [2006]). The personal injury action, which alleged, as pertinent here, that plaintiff sustained economic loss greater than “basic economic loss” in a motor vehicle accident (see CPLR 5014[a]; 5012[a], [d]), was dismissed as abandoned pursuant to CPLR 3404, and plaintiff’s motion to vacate the dismissal was denied (U. Joon Sung v Feng Ue Jin, 127 AD3d 740 [2d Dept 2015]). However, in this action, plaintiff failed to prove as a matter of law that he sustained in excess of $50,000 in economic loss as related to the accident. While plaintiff claims he left the Marine Reserves due to the injuries he sustained, plaintiff testified that there were no physical requirements to his position and that he was able to perform all of his duties. Thus, his experts’ report estimating that he suffered economic loss in excess of $50,000 based on his remaining a Marine reservist for 20 or 30 years is speculative, as it relies on assumptions, rather than proven facts.”

It’s a chicken or the egg issue.  Attorney drafts will.  Will is negligently drafted. Time goes by.  Will proponent dies.  Beneficiary becomes executrix. Estate sues attorney drafter.  Statute of limitations is raised as a defense.  Was the malpractice complete at the will drafting, or was it complete when the negligent bequest becomes active?

Generally speaking, it is the former, as Schor v Spadaro  2020 NY Slip Op 30668(U) February 26, 2020 Supreme Court, Kings County Docket Number: 525714/2018 Judge: Peter P. Sweeney holds:

“The defendant thereafter drafted a Last Will and Testament for the decedent which the decedent executed on May 26. 2011. In her Will, the decedent bequeathed to her son, Frederick Trapanese, the sum of $10.00 and the remainder of her estate, both real and personal, to the plaintiff. There are no allegations in the complaint that the defendant
performed any additional legal services for the decedent or for the plaintiff after the Will was executed.

The decedent died in 2017. After her death, the plaintiff approached a
representative of Marine Cooperative and asked for permission to access the decedent’s cooperative apartment to possibly renovate it and sell the corresponding shares. By letter dated September 8, 2017, Marine Cooperative informed the plaintiff that it had the right of first refusal and that it would not authorize the sale of decedent’s shares. Plaintiff commenced this action on December 21, 2018 alleging causes of action for legal malpractice, breach of contract and breach of fiduciary duty. All three causes of action are based on the following claims: Plaintiff contends since the defendant had an attorney-client relationship with Marine Cooperative and sat on its Board, she should not have undertook to draft the Will for the decedent. She also contends that the defendant committed malpractice by failing to inform the decedent of the conflict, by failing to obtain a waiver of the conflict from the decedent and for failing inform the decedent of the consequences of Marine Cooperative right of first refusal. Plaintiff alleged that she was damaged in the amount of One Million Dollars ($1,000,000.00) but there are no allegations particularizing these damages. ”

“Here, the defendant established that the plaintiffs’ legal malpractice cause of action accrued no later than May 26, 2011, when the decedent executed the Will. As of this date, all the facts necessary to plaintiffs cause of action for legal malpractice had occurred and plaintiff could have obtained relief in court if her claim was determined to be meritorious.

As of May 26, 2011, all the acts and omissions which plaintiff claims constituted defendant’s malpractice had occurred which caused damage to the decedent “at least nominally and at least equivalent to the value of the cost attendant to having a new will
prepared and executed” (Goldberg v. Bosworth, 29 Misc. 2d 1057, 1060, 215 N.Y.S.2d 849, 852). It is irrelevant that neither the decedent nor the plaintiff was aware of defendant’s alleged malpractice or that plaintiff may have suffered additional damages after this date.

Since plaintiffs legal malpractice claim accrued no later than May 26, 2011, the defendant established, prima facie, that the time within which to sue had expired as of December 21, 2018, when the action was commenced. In opposition, the plaintiff failed to raise a question of fact as to whether the statute of limitations had been tolled, whether an
exception to the limitations period applied or whether the plaintiff actually commenced the action within the applicable limitations period.

Plaintiffs reliance on Estate of Schneider v. Finmann, 15 N.Y.3d 306, 308, 933 N.E.2d 718, 719 is misplaced. The issue in Finmann was whether the personal representative of a decedent’s estate had sufficient privity with decedent’s attorney to bring legal malpractice action for damages resulting from negligent representation of the decedent in estate tax planning. There was no issue in Finnman as to whether the action
was timely commenced. “

Claiming a violation of Judiciary Law § 487 is easy; proving the allegations is very hard.  Here, in Estate of Lipin v Lipin  2019 NY Slip Op 03897 [172 AD3d 536] May 16, 2019 Appellate Division, First Department, defendant has failed in multiple iterations to make her claims.

“Orders, Supreme Court, New York County (Shlomo S. Hagler, J.), entered on or about January 4, 2019, which, inter alia, denied pro se defendant Joan C. Lipin’s cross motion to dismiss plaintiffs’ motion for summary judgment in lieu of complaint, her motion to dismiss the action with prejudice, and her motion for contempt, unanimously affirmed, without costs.

Supreme Court denied defendant’s motions as “incomprehensible and lacking any basis in law or fact,” and defendant presents no reason to disturb that determination on appeal. The appeal is, in large part, an apparent effort to relitigate failed claims asserted by defendant, as the plaintiff, in Lipin v Danske Bank (2014 NY Slip Op 32694[U] [Sup Ct, NY County 2014]), a case whose dismissal we affirmed in 2016 (Lipin v Hunt, 137 AD3d 518 [1st Dept 2016], appeal dismissed 27 NY3d 1053 [2016]).

We reject defendant’s stated effort to shoehorn an alleged appeal from a January 2, 2019 order in Lipin v Danske Bank into this appeal.

This action is timely (see CPLR 5014 [1]). Defendant failed to present grounds for holding any attorney in contempt or in violation of Judiciary Law § 487. To the extent defendant purports to offer factual support for arguments, she cites only her own prior, unproven allegations.”

In Zegelstein v The Roth Law Firm PLLC  2020 NY Slip Op 30581(U) February 28, 2020 Supreme Court, New York County Docket Number: 154224/2018 Judge: W. Franc Perry Plaintiff sued insurers and others in State and Federal Court where each of the cases was dismissed. The Legal Malpractice case is now dismissed as well,

”  The original complaint_ in an underlying action alleged that plaintiff Zegelstein is an anesthesiologist and owner of plaintiffs Custom anesthesia Services, PC and Innovative Anesthesia Solutions, P.C. The defendants in that action are alleged to be doctors with practices
in Manhattan, Haroon Chaudry, M,.D. (Chaudry), Michael J. Faust (Faust), M.D., Jed Kaminetsky, M.D.(Kaminetsky), Michael P. Krumholz, M.D. (Krumholz) and Alan Raymond M.D. (Raymond), who entered, beginning in 2002, into separate agreements with Zegelstein for her to provide in-office anesthesia services to their patients, as well as to VCare LLC. The
agreements “provided for Zegelstein’s billing health insurance companies (the ‘insurers’) and/or patients (if uninsured or for balances owed after insurance payments were made) separately from the defendant physicians. Billing for services were allegedly rendered to the patients from June 2007 through 2011″ (Zegelstein v Faust, Slip Op 31257(U), *2 [Sup Ct, NY County 2017]). Zegelstein alleged that insurer/patient funds intended as payment for her services were deposited into accounts of the defendant physicians and converted by them. She alleged that she did not begin to learn of the theft until mid-2012.”

“Plaintiffs commenced that action by filing a summons with notice on April 17, 2014. On or about August 8, 2014, plaintiffs retained defendants to take over the representation of the case. At that time, when Roth provided a substitution of counsel, no summons or summons with notice had yet been served upon the defendants in that action. On August 13, 2014, Roth filed a verified complaint, and served that complaint upon the defendants in that action, but did not
serve the summons or summons with notice upon the defendants. Between August 13, 2014 and October 17, 2014, Roth was advised by counsel for the defendants in that action that they were never served with a summons.” Yet, Roth did not serve the summons.

During October 2014, defendants filed multiple motions to dismiss. On November 26, 2014, Roth, plaintiffs’ counsel at the time, cross-moved to extend the time to file the verified· complaint. On April 25, 2015, Justice Singh rendered a decision dismissing the complaint. In that decision, the court found that it lacked personal jurisdiction over the defendants due to “the failure to serve a, summons with the complaint,” and therefore did not consider plaintiffs’ motion to extend the time to file the complaint. Plaintiffs allege in their complaint herein that at this
point in the underlying litigation that “even though the claim was doomed by the lack of service of a summons, Defendants continued to litigate the action, charge fees and fail to remedy the situation” (complaint, ~ 83). This, however, is contradicted by the testimony in her own affidavit in support of her opposition to defendants’ motion to dismiss, in which Zegelstein avers that she “informed Roth [she] wanted to appeal the decision and he misadvised [her] that [she] should refrain from appealing the decision, because an appeal would have no merit” (Zegelstein aff, ~ 38). ”

“In this action, plaintiffs allege that but for Roth’s “egregious lack of diligence”, plaintiffs’ case would have survived dismissal and had a favorable outcome. Plaintiffs list several failures by Roth, including his failure to serve the summons  in the state case within the 120 days as
mandated by the CPLR, and his failure to attach the proposed amended complaint to his cross motion to amend the complaint, resulting in the denial of that motion. Plaintiffs allege three causes of action: malpractice, breach of contract and breach of fiduciary duty.
Defendants move to dismiss on the ground that plaintiffs cannot maintain a cause of action for malpractice in light of the decisions issued by Justice Singh and District Judge Forrest dismissing the underlying actions. Further, defendants argue that plaintiffs’ causes of action for breach of contract and breach of fiduciary duty are duplicative of plaintiffs’ malpractice claim and, therefore, should be dismissed.”

“The court finds that plaintiffs here are unable to meet their burden to prove that “but for” the alleged negligence of defendant, they would have prevailed in the underlying matter. Plaintiff alleges that defendant’s failure to serve the summons timely, and consequent failure to obtain jurisdiction over the defendants in the underlying action, or to commence a new action, doomed her claim. However, the decisions of both Justice Singh and District Judge Forrest undermine these allegations.

The First Department affirmed Justice Singh’s decision dismissing plaintiffs’ underlying lawsuit:
“In addition to plaintiffs’ extreme lack of diligence, the statute of limitations on the majority of plaintiffs’ claims appears to have expired prior to the initiation of this action, although it is difficult to say with certainty due to the lack of specificity in the complaint. This lack of specificity also weighs against allowing an extension, as does the prejudice suffered by defendants, who were unable to timely investigate plaintiffs’ claims” (Zegelstein v Faust, _AD3d_, 2020 NY Slip Op 00390, at *1-*2 [!51 Dept 2020][intemal citations omitted]).

Further, employing the doctrine of collateral estoppel, this court finds that these two previous decisions bar the claims in this malpractice suit. Collateral estoppel “precludes 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 Telephone Co., 62 NY2d 494, 500 [1984]. “Collateral estoppel … is but a component of the broader doctrine of res judicata which holds
that, as to the parties in a litigation and those in privity with them, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action ( Gra’!1atan Home Jnvs. Corp. v Lopez, 46 NY2d 481, 485 [1979]). “

Any trial lawyer will be able to decipher the point of a difference between a pre-answer motion to dismiss and a motion for summary judgment.  In Caso v Miranda Sambursky Slone Sklarin Verveniotis LLP  2020 NY Slip Op 01384 Decided on February 27, 2020 Appellate Division, First Department permitted dismissal on summary judgment in a case where it denied dismissal on the pre-answer motion.  The facts remain exactly the same.

“In this legal malpractice action, plaintiff, defendants’ former client, contends that “but for” defendants’ negligence he would have obtained a favorable jury verdict in his underlying personal injury action against the owner and driver of a truck (Caso v Santos, et al., index No. 301817/2008 [Supreme Ct., Bx Cty]). Plaintiff was struck by a commercial garbage truck and badly injured. The accident was a hit and run. Plaintiff could not describe the vehicle that struck him, and his case largely relied on the testimony of the sole eyewitness, Ted Arenas. Arenas called 911 when the accident occurred. A New York City police detective spoke to Arenas during the course of his investigation of the accident. Defendants’ driver was arrested but the charges were dropped shortly thereafter, and no criminal action was commenced. The detective, however, prepared investigative reports, which include statements that Arenas made to him. One investigative report contains a statement attributed to Arenas that he had “observed a dark green colored garbage truck” and that it was not a dump truck “as he stated in his 911 call.” Another statement attributable to Arenas is that the truck had a “flat front.” None of these investigative reports were prepared by Arenas or signed by him.

Statements from these investigative reports were read aloud, line by line, to Arenas at his deposition in the personal injury action. Even after hearing the information from the investigative reports, Arenas denied that he recalled describing the truck as having a flat front. Instead, he recalled that the truck had an engine in front. Arenas even made a drawing reflecting a roundish front hood on the truck. Arena did not recall seeing any identifying markings on the truck, or license plate, nor did he see the driver.

Before trial, Arenas met with counsel for both plaintiff and defendants. During that meeting, Arenas stated that he recalled the front of the truck as being bullnosed. While he was not 100% sure, even after one of the investigative reports was read to him where he described the front of the truck as flat, he drew a picture of the truck with a bullnose.

At trial, Arenas provided conflicting and inconsistent testimony about the truck, alternatively describing it as a dump truck and also a garbage truck, but once again he testified that the truck had a rounded “bullnose,” with the engine up front. Such testimony did not match the description of the truck owned by the defendants and allegedly involved in the underlying accident, which had a flat front. Santos, defendants’ driver testified that he had not been [*2]involved in any accident and had not hit anybody with his truck. The jury returned a verdict for the defendants in the underlying personal injury action.

Plaintiff’s contention in this legal malpractice action is that Arenas should have been better “prepared” for his deposition in the underlying personal injury action, so he could “remember” the statements he made to the detective. Plaintiff claims that, had defendants not been negligent, there would have been a plaintiff’s verdict. He claims that Arenas’s testimony damaged his case and prevented him from prevailing.

“[M]ere speculation of a loss resulting from an attorney’s alleged omissions . . . is insufficient to sustain a claim” for legal malpractice” (Gallet, Dreyer & Berkey, LLP v Basile, 141 AD3d 405, 405-406 [1st Dept 2016] [internal quotation marks omitted]; Geller v Harris, 258 AD2d 421 [1st Dept 1999]). Plaintiff’s assertion that, had Arenas been better prepared, the jury would have returned a favorable verdict is pure speculation (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 443 [2007]; Bookwood v Alston & Bird, LLC, 146 AD3d 662 [1st Dept 2017]. Defendants met their burden of showing that plaintiff cannot establish causation, in that plaintiff cannot prove that it would have prevailed in the underlying action “but for” defendant’s alleged negligence in preparing Arenas for his deposition (see Rudolf v Shayne, 8 NY3d 438 at 442).

Although there are issues of fact regarding whether defendants may have departed from the applicable standard of care, any claim that the jury would have reached a different result in the personal injury action is wholly speculative. First, it is wholly speculative that Arenas would have testified to a different description of the truck either at his deposition or at trial had he been shown the investigative reports. Although the investigative reports were read to him line by line at his deposition, his description of the truck did not change and he adhered to his belief, that the front of the truck he saw strike and run over plaintiff was bullnosed. Even if Arenas’s statement in support of plaintiff’s motion in this case is accurate, that he would have testified differently had he been differently prepared, this, at best, creates an issue of fact about what he would have said at trial. It does not eliminate speculation about what the jury’s verdict would have been, given that Arenas’s description of the truck otherwise lacked detail, and the absence of any additional proof identifying defendants’ truck and driver as being involved in underlying accident.

Contrary to plaintiff’s argument, our prior decision in this case decided under the more liberal standards applicable to motions to dismiss (150 AD3d 422 [1st Dept 2017]) is not inconsistent with this summary judgment adjudication (see Tenzer, Greenblatt, Fallon & Kaplan v Capri Jewelry, 128 AD2d 467 [1st Dept 1987]). Consequently, defendants’ motion for summary judgment should have been granted and the case dismissed.”

Plaintiffs struck out across the board following being “frozen out” of merger negotiations.  In Binn v Muchnick, Golieb & Golieb, P.C. 2020 NY Slip Op 01302 Decided on February 25, 2020 the Appellate Division, First Department found that the minority shareholders knew exactly what was coming their way, and nothing the attorneys did created a greater harm

“Plaintiffs allege that their long-time attorneys, defendants John Golieb, Esq. and Muchnick, Golieb & Golieb, P.C. (together, the Golieb defendants), gave poor advice in connection with a series of transactions in 2014, 2015 and 2016, resulting in the loss of plaintiffs’ majority interest and dilution of their interest in their airport spa business, XpresSpa Holdings, LLC (XpresSpa), as well as other damages. The motion court correctly concluded that documentary evidence, including emails and transaction documents, rendered it “essentially undeniable” that plaintiffs were advised of and/or otherwise understood the terms of the transactions they entered into in 2014 and 2015, as well as their alternative options, if any (see Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc., 120 AD3d 431, 432 [1st Dept 2014] [internal quotation marks omitted]). Those documents “conclusively establish[] a defense to the asserted claims as a matter of law” (Leon v Martinez, 84 NY2d 83, 88 [1994]; see CPLR 3211[a][1]).

The court correctly concluded that plaintiffs failed to establish that the Golieb defendants were the proximate cause of any damages in connection with the 2016 vote on the merger of XpresSpa and its acquisition by Form Holdings Corp. Documents show that plaintiff Moreton Binn voted in favor of the merger “under protest,” that he felt “frozen . . . out” of the merger negotiations, and that he received inadequate information from Form Holdings — factors outside of the Golieb defendants’ control. Moreover, in connection with their execution of the Joinder Agreement relating to the merger, plaintiffs retained separate counsel to represent them and the minority shareholders in evaluating the voluminous merger and acquisition documents by reviewing the documents and summarizing their terms for the minority shareholders. Thus, separate counsel was an intervening and superseding cause of any damages (see Boye v Rubin & Bailin, LLP, 152 AD3d 1, 10 [1st Dept 2017]).

The court correctly dismissed the legal malpractice claim against defendants DLA Piper LLP (US) (DLA) and Sidney Burke (collectively, the DLA defendants), counsel for Mistral Equity Partners (Mistral), an investor in plaintiffs’ business, and its related entities, including Mistral XH, which facilitated the 2016 merger. Plaintiffs do not dispute that there was no attorney-client relationship, and, contrary to their contentions, there is no near privity to support a claim of legal malpractice (see e.g. Federal Ins. Co. v North Am. Specialty Ins. Co., 47 AD3d 52, 60-61 [1st Dept 2007]). Nor is any other ground for a legal malpractice claim alleged (see Good [*2]Old Days Tavern v Zwirn, 259 AD2d 300 [1st Dept 1999]). Plaintiffs signed the 2016 Joinder Agreement, dated October 28, 2016, which acknowledges that “DLA Piper LLP (US) is not representing and will not represent any Member … other than the Mistral Vehicles” in connection with the Joinder Agreement or other transaction documents.”