Medley Mgt. Inc. v Lowenstein Sandler, LLP 2026 NY Slip Op 06202 October 22, 2026 Appellate Division, First Department is a complicated bankruptcy Capter 11 reorganization legal malpractice case. Although the AD first discusses the lack of sufficient opposition to a summary judgment motion, it seems that speculation is the real killer.

“In this legal malpractice case arising from defendants’ representation of both plaintiff and nonparty Medley LLC, the debtor in a bankruptcy proceeding, plaintiff argues defendants were negligent in failing to follow instructions in formulating and implementing a bankruptcy reorganization plan and in later withdrawing that plan without the debtor’s approval. Plaintiff’s primary asset was its 98% ownership interest in the debtor.

Supreme Court properly concluded that defendants satisfied their initial burden of demonstrating the lack of triable issues of fact as to the claim for legal malpractice (see Hudson Yards LLC v Segal, 188 AD3d 419, 419 [1st Dept 2020], quoting Barbara King Family Trust v Voluto Ventures LLC, 46 AD3d 423, 424 [1st Dept 2007]). The Disclosure Statement, affirmation of the Chair of the Restructuring Committee, and the testimony of plaintiff’s designee make clear that the initial bankruptcy plan included a two-pronged strategy of seeking a consensual reorganization with creditors and a cramdown if the first approach was unsuccessful. Plaintiff’s expert testified that this was the best way to accomplish the reorganization. As the court noted, even if plaintiff did not approve this course of action, as it now claims, the advice was reasonable (see Rosner v Paley, 65 NY2d 736, 738 [1985]; Brookwood Cos., Inc. v Alston & Bird LLP, 146 AD3d 662, 667 [1st Dept 2017]).

Plaintiff’s reliance on the disinterested requirement of 11 USC § 327 (a) to argue that the professional judgment defense does not apply is misplaced because that requirement applies only to defendants’ representation of the debtor, not their representation of plaintiff. Nor did plaintiff present sufficient evidence to show that any conflict of interest between it and the debtor had an adverse effect, and the Bankruptcy Court never ruled on this issue. Moreover, an individual with both a 25% interest in plaintiff and the debtor testified that the interests of these entities were “aligned,” and the potential conflict was known by both parties from the outset.

With respect to plaintiff’s claim that defendants withdrew the plan without authorization, defendants provided prima facie evidence that the Restructuring Committee approved this action through its submission of the affirmation of the Committee’s Chair and notes that were prepared by an attorney who was present at the relevant meeting. Plaintiff failed to present sufficient evidence to raise a triable issue of fact as the testimony it provided of two members of the Restructuring Committee on this issue was equivocal and contradictory. In any event, the withdrawal was a reasonable course of action given that the initial plan could not be approved without sufficient new value, which at that point no one had agreed to provide to the satisfaction of the creditors’ committee.

The court also correctly concluded that defendants demonstrated the absence of proximate cause. Defendants showed prima facie that plaintiff could not prove that but for their malpractice, a reorganization plan presented by the debtor would have been approved by the Bankruptcy Court (see Nazario v Fortunato & Fortunato, PLLC, 32 AD3d 692, 695 [1st Dept 2006]). There are “numerous obstacles to pursuing, let alone successfully achieving, Chapter 11 reorganization” (Heritage Partners, LLC v Stroock & Stroock & Levan LLP, 133 AD3d 428, 429 [1st Dept 2015], lv denied 27 NY3d 904 [2016]). Plaintiff’s assertion that the Bankruptcy Court would have confirmed a reorganization plan was speculative and thus, insufficient to raise a triable issue of fact (see id.; Hudson Yards LLC, 188 AD3d 419).

Nor does plaintiff’s argument that a cramdown plan would have been confirmed by the Bankruptcy Court fare any better. In addition to having to meet the enumerated requirements of 11 USC § 1129(b), that plan would also have required a finding by the Bankruptcy Court that it was “fair and equitable” to each impaired objecting class (see In re Hertz Corp., 120 F4th 1181, 1202-1203 [3d Cir 2024], cert denied 146 S Ct 1512 [2026]). This too suffers from speculation.”

Sapp-Gooding v Kreindler & Kreindler, LLP 2026 NY Slip Op 06159 October 21, 2026

Appellate Division, Second Department is a legal malpractice case in which Plaintiff asked for more time to serve the summons and complaint in a case involving the World Trade Center .

Calvin Gooding (hereinafter the decedent) died in the September 11, 2001 terrorist attacks on the World Trade Center. He was survived by his wife, the plaintiff Rhonda Sapp-Gooding, and two children, the plaintiffs Celia Rose Gooding and Zaya Gooding. In 2002, the defendant Kreindler & Kreindler, LLP (hereinafter the Kreindler firm), commenced an action in the United States District Court for the Southern District of New York on behalf of thousands of 9/11 victims and their families, Ashton v Al Qaeda Islamic Army (No. 02-cv-06977 [hereinafter the Ashton I action]). On August 1, 2003, the Kreindler firm, under the belief that Sapp-Gooding would be signing and returning a retainer agreement, included her in the Ashton I action “as Personal Representative of the Estate of [the decedent], Deceased and on behalf of all survivors of [the decedent].” In 2015, the Kreindler firm successfully moved for leave to enter a default judgment against the Islamic Republic of Iran on the issue of liability in favor of all the plaintiffs in the Ashton 1 action. After that motion was granted, the Kreindler firm also sought a final judgment in favor of the decedent’s estate and against the Islamic Republic of Iran in the principal sum of $8,880,000. In 2017, the Kreindler firm commenced a second action in the United States District Court for the Southern District of New York, Ashton v Kingdom of Saudia Arabia (No. 17-cv-02003 [hereinafter the Ashton II action]), and again included Sapp-Gooding, individually and on behalf of the decedent’s estate, in the consolidated complaint. Sapp-Gooding, however, never signed or returned the retainer agreement and had no contact with the Kreindler firm between 2003 and 2020.

In 2019, Congress passed the United States Victims of State Sponsored Terrorism Fund Clarification Act (Pub L 116-69, § 1701, 133 US Stat 1134, 1140-1143), which expanded access to the Victims of State Sponsored Terrorism Fund (hereinafter VSSTF) to 9/11 victims, spouses, and dependents who obtained a final judgment against a state sponsor of terrorism. Thereafter, Sapp-Gooding retained counsel who discovered that the Kreindler firm was representing her in the Ashton I action. After counsel was unsuccessful in obtaining VSSTF benefits, the plaintiffs signed and returned retainer agreements with the Kreindler firm in February 2021. The Kreindler firm obtained final judgments in favor of the plaintiffs in the Ashton I action in the principal sum of $43,080,791, including an award of $12,500,000 in favor of Sapp-Gooding and $13,580,791 in favor of the decedent’s estate. However, the plaintiffs were only able to recover the sums of $6,359.46 on behalf of Sapp-Gooding and $6,909.32 on behalf of the decedent’s estate from the VSSTF, or approximately .0626% of their eligible damages.

On July 25, 2023, Sapp-Gooding commenced this action against, among others, the Kreindler firm and the defendants James P. Kreindler and Megan Wolfe Benett by filing a summons with notice. Thereafter, the plaintiffs filed a complaint asserting causes of action against the Kreindler firm, Kreindler, Benett, and nonparties Noah Kushlefsky and Andrew Maloney (hereinafter collectively the Kreindler attorneys), including a cause of action to recover damages for legal malpractice. The complaint alleged that had the Kreindler attorneys obtained final judgments in the Ashton I action and filed VSSTF applications on behalf of the plaintiffs before February 19, 2020, the plaintiffs would have received 5.8574% of their eligible damages from the VSSTF.

On June 26, 2024, the plaintiffs moved pursuant to CPLR 306-b to extend the time to serve the summons with notice upon the Kreindler attorneys. On July 29, 2024, the Kreindler attorneys cross-moved pursuant to CPLR 3211(a) to dismiss the complaint. In an order dated September 11, 2024, the Supreme Court, inter alia, granted the plaintiffs’ motion and denied that branch of the Kreindler attorneys’ cross-motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging legal malpractice. The Kreindler attorneys appeal.”

“Here, the Kreindler attorneys satisfied their initial burden of demonstrating that the alleged legal malpractice accrued, at the latest, on February 19, 2020, the third deadline for VSSTF applications, which was more than three years prior to the commencement of this action (see Tulino v Hiller, P.C., 202 AD3d 1132, 1135; Schrull v Weis, 166 AD3d 829, 832). In opposition, however, the plaintiffs raised questions of fact as to whether there was a mutual understanding of the need for further representation (see Lytell v Lorusso, 74 AD3d 905, 907; cf. Verkowitz v Ursprung, 153 AD3d 1443, 1444; Landow v Snow Becker Krauss, P.C., 111 AD3d 795, 796-797) and whether the Kreindler attorneys engaged in a course of continuous representation intended to rectify or mitigate the alleged malpractice (see Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d at 790; DeStaso v Condon Resnick, LLP, 90 AD3d at 812-813; Gravel v Cicola, 297 AD2d 620, 621). Therefore, the Supreme Court properly denied dismissal of the cause of action alleging legal malpractice pursuant to CPLR 3211(a)(5).

“Pursuant to CPLR 306-b, a court may, in the exercise of discretion, grant an extension of time within which to effect service for good cause shown or in the interest of justice” (Bhatara v Kolaj, 222 AD3d 926, 930 [internal quotation marks omitted]). “The more flexible interest of justice standard accommodates late service that might be due to mistake, confusion, or oversight, so long as there is no prejudice to the defendant” (id.). Here, the plaintiffs demonstrated that the action was timely commenced, that service was timely attempted, that they had a potentially meritorious cause of action, and that there was no demonstrable prejudice to the Kreindler attorneys as a consequence of the delay in service. Under the circumstances of this case, the Supreme Court providently exercised its discretion in granting the plaintiffs’ motion pursuant to CPLR 306-b to extend the time to serve the summons with notice upon the Kreindler attorneys in the interest of justice (see Bank of N.Y. v Hernandez, 243 AD3d 854, 856; Bhatara v Kolaj, 222 AD3d at 931).”

Karsch v Falcon Rappaport & Berkman PLLC 2026 NY Slip Op 06006 October 15, 2026 Appellate Division, First Department teaches two lessons concerning standing and damages.

“Plaintiffs are the co-executors of the MK Estate, which owned commercial real estate properties through a limited liability company. Supreme Court correctly denied defendants’ motion to dismiss because plaintiffs adequately pleaded their legal malpractice claims, alleging that defendant law firm provided them with incorrect legal advice regarding the tax consequences of potential sales of the commercial real estate properties. The complaint, as supplemented by the affidavit of plaintiff Evan Karsch submitted in opposition to the motion, details the alleged engagement of defendants by plaintiffs, the legal advice and work provided by defendants relating to the estate, and plaintiffs’ sale of the properties based on that advice. These allegations are sufficient at this early stage of the proceeding to establish an attorney-client relationship between plaintiffs and defendant law firm such that the complaint survives a motion to dismiss (see Rushaid v Pictet & Cie, 28 NY3d 316, 327 [2016]; Genesis REOC Co., LLC v Poppel, 205 AD3d 415, 415 [1st Dept 2022]).

Contrary to defendants’ argument, their submission of a formal agreement signed by Evan Karsch engaging defendants to provide the same legal advice and work for the limited liability company that owned the commercial property and that became part of the MK Estate does not conclusively establish that no attorney-client relationship existed between plaintiffs and defendant law firm with respect to tax advice (see Hall v Hobbick, 192 AD3d 776, 778 [2d Dept 2021]).

Furthermore, plaintiffs adequately allege that but for defendants’ deficient tax advice, upon which they reasonably relied, they would have taken another course of action and not have sustained actual and ascertainable damages in the form of undesired tax consequences from the sale of the properties (see 83 Willow, LLC v Apollo, 187 AD3d 563, 563-564 [1st Dept 2020]). To survive the motion to dismiss under CPLR 3211(a)(7), plaintiffs did not have to show that they actually sustained damages, but only that damages attributable to defendants’ conduct might be reasonably inferred from the allegations of legal malpractice (see Fielding v Kupferman, 65 AD3d 437, 442 [1st Dept 2009]).”

A common inquiry in legal malpractice cases is whether a case was settled by the attorney with authority or without authority. What generally happens is that an attorney negotiates with the other side, reaches a number they like, discuss with the client and find that the client does not like the number. Sometimes the attorney has written something to the defendant that can be taken as assent to the settlement. Trouble.

Guliyev v Banilov & Assoc., P.C. 2026 NY Slip Op 05773 October 7, 2026 Appellate Division, Second Department is a case where attorney authority to settle was addressed.

“The plaintiff commenced an action to recover damages for personal injuries he alleged he sustained as a result of a motor vehicle accident (hereinafter the underlying action) (see Guliyev v Banilov & Assoc., P.C., 221 AD3d 589, 589-590). The defendants in the underlying action moved to compel enforcement of a settlement. The plaintiff opposed, asserting that he did not authorize his counsel to accept the settlement. Following a framed-issue hearing, the Supreme Court granted the motion, concluding the plaintiff’s legal counsel in the underlying action had the authority to settle the underlying action.

Thereafter, in August 2020, the plaintiff commenced an action against the defendant Harlan Wittenstein, who was of counsel to the plaintiff’s counsel in the underlying action, and the defendants Banilov & Associates, P.C., and Nick Banilov (hereinafter together the Banilov defendants) to recover damages for legal malpractice, breach of fiduciary duty, and violations of Judiciary Law § 487 (hereinafter the 2020 action). Wittenstein moved, and the Banilov defendants separately moved, pursuant to CPLR 3211(a) to dismiss the complaint in the 2020 action insofar as asserted against each of them. The plaintiff opposed. In an order dated May 17, 2021 (hereinafter the May 2021 order), the Supreme Court granted the motions and directed dismissal of the complaint in the 2020 action. In a decision and order dated November 1, 2023 (hereinafter the November 2023 decision and order), this Court affirmed the May 2021 order (see Guliyev v Banilov & Assoc., P.C., 221 AD3d 589).

Thereafter, in December 2023, the plaintiff commenced this action against Wittenstein and the Banilov defendants to recover damages for legal malpractice, breach of fiduciary duty, and violations of Judiciary Law § 487. Wittenstein moved, and the Banilov defendants separately moved, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them, contending, among other things, that the causes of action were precluded by the doctrine of res judicata. The plaintiff opposed. In an order dated May 13, 2024, the Supreme Court granted the motions. The plaintiff appeals.

Pursuant to CPLR 3211(a)(5), a party may move to dismiss a cause of action based upon the doctrine of res judicata (see Ciafone v City of New York, 227 AD3d 946, 948). The doctrine precludes a party from relitigating a claim that has been finally adjudicated on the merits (see Park Slope Auto Ctr., Inc. v Papa, 190 AD3d 754, 756; Blake v City of New York, 144 AD3d 1071, 1073). “‘Although, generally, a dismissal for failure to state a cause of action based on the insufficiency of the allegations in the pleading is not a dismissal on the merits, and does not bar the adequate repleading of the claim in a subsequent action, such a determination has preclusive effect as to a new complaint for the same cause of action which fails to correct the defect or supply the omission determined to exist in the earlier complaint'” (Duchemin v Village of E. Hampton, 222 AD3d 715, 718, quoting Park Slope Auto Ctr., Inc. v Papa, 190 AD3d at 756).

Since the allegations in the complaint in this action were virtually identical to the facts as alleged in the complaint in the 2020 action, they did not correct the defects in the complaint in the 2020 action. Thus, the May 2021 order, directing dismissal of the complaint in the 2020 action pursuant to CPLR 3211(a), and the November 2023 decision and order were properly given preclusive effect by the Supreme Court in directing dismissal of the complaint in this action (see Ciafone v City of New York, 227 AD3d at 948; Park Slope Auto Ctr., Inc. v Papa, 190 AD3d at 756).”

Katsoris v Bodnar & Milone, LLP 2026 NY Slip Op 05089 August 26, 2026 Appellate Division, Second Department is a case where the unusual happened. Plaintiff was able to reverse the dismissal of a legal malpractice claim.

“In an action, inter alia, to recover damages for breach of fiduciary duty and legal malpractice, the plaintiff appeals from an order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated June 30, 2021. The order granted the defendant’s motion pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the defendant’s motion which were pursuant to CPLR 3211(a) to dismiss so much of the cause of action alleging breach of fiduciary duty as sought to recover compensatory damages and injunctive relief and the cause of action alleging legal malpractice, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.

In 2018, the plaintiff commenced an action (hereinafter the 2018 action) against the defendant to recover damages for legal malpractice and breach of fiduciary duty as a result of the defendant’s representation of the plaintiff in an underlying matrimonial action against his wife. According to the complaint in the 2018 action, approximately one month after the note of issue was filed in the underlying matrimonial action, the plaintiff terminated the defendant’s services, retained another law firm, and settled the underlying matrimonial action. The defendant moved pursuant to CPLR 3211(a)(7) to dismiss the complaint in the 2018 action. In an order dated December 31, 2018, the Supreme Court granted the defendant’s motion. On appeal, this Court affirmed, determining that the complaint in the 2018 action failed to state a cause of action alleging legal malpractice and that the cause of action alleging breach of fiduciary duty, as pleaded, was duplicative of the legal malpractice cause of action (see Katsoris v Bodnar & Milone, LLP, 186 AD3d 1504, 1505-1507).”

“Here, the defendant failed to establish the elements necessary for the doctrines of res judicata and collateral estoppel to apply (see Blooming Home Realty, LLC v Infinity Holdings Northeast, LLC, 228 AD3d at 817). Contrary to the defendant’s contention, the dismissal of the complaint in the 2018 action was not a final judgment on the merits (see Shahid v Legal Aid Socy., 173 AD3d 1099, 1101), and the issues raised in the complaint in this action were not necessarily decided in the 2018 action (see Blooming Home Realty, LLC v Infinity Holdings Northeast, LLC, 228 AD3d at 817). Moreover, the complaint in this action corrected the relevant omissions in the complaint in the 2018 action (see id.). Accordingly, the Supreme Court should have denied dismissal of the complaint pursuant to CPLR 3211(a)(5).

“To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages” (Campbell v Law Off. of Solomon Rosengarten, 241 AD3d 771, 772 [internal quotation marks omitted]; see Howlader v Aranow Law, P.C., 242 AD3d 841, 841). Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative (Floral Park Ophthalmology, P.C. v Ruskin Moscou Faltischek, LLP, 216 AD3d 1136, 1137 [internal quotation marks omitted]). “To establish causation, the plaintiff must also show that he or she would have prevailed in the underlying action or would not have incurred any damages but for the attorney’s negligence” (Stinnett v Derek Smith Law Group, PLLC, 241 AD3d 737, 738; see Floral Park Ophthalmology, P.C. v Ruskin Moscou Faltischek, LLP, 216 AD3d at 1137). Moreover, “[a] legal malpractice cause of action is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel” (Valentina v Beckerman, 241 AD3d 751, 753 [internal quotation marks omitted]; see Floral Park Ophthalmology, P.C. v Ruskin Moscou Faltischek, LLP, 216 AD3d at 1137).

Here, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, the complaint sufficiently stated a cause of action to recover damages for legal malpractice (see Postiglione v Sacks & Sacks, LLP, 233 AD3d 719, 721; Kowalski v Gold Benes, LLP, 232 AD3d 869, 871). The complaint alleged that the defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession by, inter alia, failing to provide proper financial advice regarding postcommencement spending, obtain necessary discovery, and designate a needed expert.”

Legal malpractice is always the comparison of the actual outcome of litigation and the hypothetical better outcome had the attorneys acted differently. Putting aside questions of strategy, if the attorneys departed from good practice and the financial outcome is negative for plaintiff then legal malpractice is demonstrated, no?

Often courts hold that the proofs of the hypothetical better outcome are merely speculation on future events. Kolyer v Sallah 2026 NY Slip Op 04287 [251 AD3d 670] July 8, 2026 Appellate Division, Second Department is one such case.

“The plaintiff commenced this action to recover damages for legal malpractice arising out of the defendants’ legal representation of her in a post-divorce matrimonial proceeding. The defendants moved pursuant to CPLR 3211 (a) to dismiss the complaint on the ground, inter alia, of failure to state a cause of action. The plaintiff opposed the motion. In an order dated September 20, 2024, the Supreme Court granted the defendants’ motion. The plaintiff appeals.

“Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” (GLD3, LLC v Albra, 241 AD3d 1288, 1290 [2025] [internal quotation marks omitted]).”

“”Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative” (Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1506 [internal quotation marks omitted]; see Ofman v Richland, 234 AD3d 865, 868 [2025]; Maroulis v Sari M. Friedman, P.C., 153 AD3d 1250, 1251 [2017]).

Here, the Supreme Court properly determined that dismissal of the complaint was warranted pursuant to CPLR 3211 (a) (7), on the ground of failure to state a cause of action. The plaintiff’s allegation that she would have received a larger amount of her former husband’s disability pension but for the defendants’ negligence was conclusory and speculative under the circumstances and in light of the evidentiary material submitted and considered on the defendants’ motion (see York v Frank, 209 AD3d 804, 807 [2022]; Denisco v Uysal, 195 AD3d 989, 991 [2021]; Maroulis v Sari M. Friedman, P.C., 153 AD3d at 1252).”

Benyaminpour v Lipton 2026 NY Slip Op 05072 August 26, 2026 Appellate Division, Second Department is the kind of appellate decision where the outlying claims are trimmed and the central claim is wiped out. Here, accounting malpractice was dismissed as late.

“In November 2020, the plaintiff commenced this action against the defendants, Alan Lipton, an accountant, and his accounting firm, Lipton & Associates, LLP, arising out of accounting services provided by the defendants to the plaintiff and his former business partners in two business ventures related to real property (hereinafter the business entities). In an amended complaint, the plaintiff alleged, inter alia, causes of action sounding in fraud, aiding and abetting fraud, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, breach of contract, civil conspiracy, and professional negligence. Prior to commencing this action, the plaintiff and his brother commenced a different action in 2014 against the same former business partners, among others, alleging, inter alia, that the former business partners “wrongfully induced,” “fraudulently induced,” and “directed” Lipton to incorrectly complete tax returns and issue K-1s with regard to the business entities, as part of a scheme to eliminate the plaintiff’s interests in said entities and extinguish certain liabilities owed to the plaintiff. In sum and substance, the plaintiff has repeated those allegations in this action against the defendants.

Following the commencement of this action, the defendants moved pursuant to CPLR 3211(a) to dismiss the amended complaint. The plaintiff opposed. In an order entered December 13, 2021, the Supreme Court granted the motion. The plaintiff appeals.”

“Contrary to the plaintiff’s contention, the Supreme Court properly granted, pursuant to CPLR 3211(a)(7), those branches of the defendants’ motion which were to dismiss the causes of action alleging fraud, aiding and abetting fraud, breach of fiduciary duty, and aiding and abetting breach of fiduciary duty as duplicative of the cause of action alleging professional negligence in the nature of accounting malpractice. The causes of action arose from the same set of facts and do not allege distinct damages (see Schwartz v Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP, 123 AD3d 901, 902).

“On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired” (Collins-Genova v Louros, 204 AD3d 748, 749 [internal quotation marks omitted]; see Weinberg Real Estate Affiliates, LLC v Weinberg, 231 AD3d 775, 776). “If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period” (Weinberg Real Estate Affiliates, LLC v Weinberg, 231 AD3d at 776 [internal quotation marks omitted]).

“An action to recover damages for accounting malpractice must be commenced within three years” (Getzel Schiff & Pesce, LLP v Shtayner, 233 AD3d 758, 759; see CPLR 214[6]; Schwartz v Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP, 155 AD3d at 803). “‘A cause of action alleging professional malpractice against an accountant accrues upon the client’s receipt of the accountant’s work product'” (Getzel Schiff & Pesce, LLP v Shtayner, 233 AD3d at 759, quoting Schwartz v Leaf, Salzman, Manganelli, Pfiel & Tendler, LLP, 155 AD3d at 803). Here, the defendants established, prima facie, that the cause of action alleging professional negligence in the nature of accounting malpractice accrued more than three years before the plaintiff commenced this action. In opposition, the plaintiff failed to raise a question of fact as to whether this action was commenced within the applicable statute of limitations period, or whether the statute of limitations was tolled or otherwise inapplicable (see id.). Accordingly, the Supreme Court properly directed dismissal of the cause of action alleging professional negligence in the nature of accounting malpractice as time-barred pursuant to CPLR 3211(a)(5).”

Pires v Daniella Levi & Assoc., P.C. 2026 NY Slip Op 05330 September 16, 2026

Appellate Division, Second Department illustrates a very common legal malpractice issue that comes up in the personal injury area. Plaintiff is injured at work and hires a workers’ compensation attorney. That attorney either explicitly or implicitly tells the client that it does WC work only and will not bring a 3d party action against the landowner, or the building owner, or, in this case, other construction parties. The 3d party personal injury action is not brought and a legal malpractice case ensues. The cases are often lost when only the WC lawfirm is in the caption, and as here, also lost when there is a PI lawyer who is in/not in the case.

“In an action to recover damages for legal malpractice, the plaintiff appeals, and the defendants Daniella Levi & Associates, P.C., and Daniella Levi cross-appeal, from an order of the Supreme Court, Kings County (Joy F. Campanelli, J.), dated October 2, 2024. The order, insofar as appealed from, granted the motion of the defendants Ugalde & Rzonca, LLP, Francisco A. Ugalde, and Tadeusz Rzonca pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them. The order, insofar as cross-appealed from, denied the motion of the defendants Daniella Levi & Associates, P.C., and Daniella Levi pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from; and it is further,

ORDERED that the order is reversed insofar as cross-appealed from, on the law, and the motion of the defendants Daniella Levi & Associates, P.C., and Daniella Levi pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them is granted;”

“On May 25, 2021, the plaintiff retained the defendant Ugalde & Rzonca, LLP (hereinafter Ugalde), to represent him in workers’ compensation proceedings before the Workers’ Compensation Board. A letter of engagement signed by the plaintiff stated that Ugalde “does not handle Personal Injury claims, which may be related to the Workers’ Compensation claim,” and that Ugalde would “not represent [the plaintiff] in any [o]f those types of claims at this time.” Ugalde referred the plaintiff to the defendant Daniella Levi & Associates, P.C. (hereinafter Levi & Associates), to consult with regarding a possible personal injury claim. On or around the same day, the defendant Daniella Levi allegedly called the plaintiff and asked him about his accident. Levi advised the plaintiff that, in her opinion, he “had no case” except for a workers’ compensation claim.

In February 2024, the plaintiff commenced this action to recover damages for legal malpractice based on the defendants’ alleged failure, inter alia, to serve a timely notice of claim. Ugalde and the defendants Francisco A. Ugalde and Tadeusz Rzonca (hereinafter collectively the Ugalde defendants) moved, and Levi & Associates and Levi (hereinafter together the Levi defendants) separately moved, pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against each of them. In an order dated October 2, 2024, the Supreme Court granted the Ugalde defendants’ motion and denied the Levi defendants’ motion. The plaintiff appeals, and the Levi defendants cross-appeal.”

“Contrary to the plaintiff’s contention, the Supreme Court properly granted the Ugalde defendants’ motion pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them. “Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence utterly refutes [the] plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Bernstein v Jacobson, 238 AD3d at 1103 [internal quotation marks omitted]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326). “To constitute documentary evidence, the evidence must be unambiguous, authentic, and undeniable, such as judicial records and documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable” (Yan Ping Xu v Van Zwienen, 212 AD3d 872, 874 [citations and internal quotation marks omitted]). Here, the engagement letter signed by the plaintiff, the authenticity of which is not controverted, utterly refuted the plaintiff’s allegations that the Ugalde defendants’ representation of him was not limited to his workers’ compensation claim (see Getzel Schiff & Pesce, LLP v Shtayner, 233 AD3d 758, 759; Turner v Irving Finkelstein & Meirowitz, LLP, 61 AD3d 849, 850).”

“”‘Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery'” (Oak Beverages, Inc. v D.G. Yuengling & Son, Inc., 245 AD3d 93, 101, quoting Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142). Here, viewing the amended complaint in the light most favorable to the plaintiff, the allegations were insufficient to state a cause of action against the Levi defendants. The plaintiff failed to plead specific factual allegations supporting a claim that, but for the Levi defendants’ alleged negligence, the plaintiff would have prevailed in an action against the City of New York (see Coniglio v Dansker & Aspromonte Assoc., 243 AD3d 628, 631-632; Mid City Elec. Corp. v Peckar & Abramson, 214 AD3d 646, 649).”