Century Prop. & Cas. Ins. Corp. v McManus & Richter 2024 NY Slip Op 00799
Decided on February 15, 2024 Appellate Division, First Department
KAPNICK, J. is a decision with great implications for insurers regarding how defense attorneys might be liable to the carrier for mistakes made during the defense of cases. The question of privity, near-privity and equitable subrogation are all taken up in great detail. The reader should go to the full decision for the well-reasoned discussion of in stari decisis, equitable subrogation, privity and many other core doctrinal issues.

“The instant action arises out of an underlying personal injury matter entitled Palaguachi v The Battery Park City Authority, New York County,index No. 157779/2015, in which defendants were retained by WFP Tower B, L.P. (Tower B) and its insurers, through their claims representatives, to represent Tower B and its affiliates.[FN1] In the underlying action, Ramon Palaguachi, an employee of Rite-Way Internal Removal, Inc. (Rite-Way), sustained injuries when he fell off an unsecured ladder while performing demolition work at a site owned by Tower B, which had contracted with Rite-Way to perform the demolition work. Palaguachi filed the underlying action against Tower B and its affiliates alleging they were vicariously liable for his injuries pursuant to Labor Law § 240 (1) as the owners and general contractors of the site.”

“As alleged in plaintiff’s amended complaint, the claims against Tower B in the underlying action were covered by a $3 million primary insurance policy issued to Tower B by ACE American Insurance Company which was reinsured by ACE INA Overseas Insurance Company Limited (ACE INA). Plaintiff and ACE INA then entered into the retrocessional agreement, pursuant to which plaintiff accepted a 100% pro rata quota share reinsurance (retrocession) of ACE INA’s interest and liabilities with respect to certain insurance policies, including the Tower B policy. Therefore, any loss under the Tower B policy was ultimately to fall upon plaintiff. According to plaintiff, as the retrocessional insurer for Tower B, it “was contractually obligated to fund” a portion of the settlement in the underlying action on Tower B’s behalf. This contractual obligation forms the basis of plaintiff’s instant claims of legal malpractice against defendants. In its amended complaint, plaintiff alleges that defendants were negligent in voluntarily withdrawing the motion and discontinuing the third-party action against Rite-Way; had they not done so, Tower B would have received complete indemnification from Rite-Way. Instead, because defendants withdrew the claims against Rite-Way, Tower B was left with exposure of approximately $2.8 million, which plaintiff ultimately paid.”

“[A]bsent fraud, collusion, malicious acts or other special circumstances, an attorney is not liable for professional negligence to third parties not in privity” (Block v Brecher, Fishman, Feit, Heller, Rubin & Tannenbaum, 301 AD2d 400, 401 [1st Dept 2003], lv denied 100 NY2d 509 [2003]). However, in cases where the elements of negligent misrepresentation are present, a relationship of “near privity” may be sufficient to sustain a legal malpractice claim (see Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d 377, 382-385 [1992] [attorney may be held liable to third parties for submitting a false opinion letter upon which a third party relied]). In this case, Supreme Court correctly rejected plaintiff’s argument that it had standing to assert a direct legal malpractice claim against defendants based on the doctrine of “near privity.” To establish such a claim, the third party must allege “(1) an awareness by the maker of the statement that it is to be used for a particular purpose; (2) reliance by a known party on the statement in furtherance of that purpose; [*4]and (3) some conduct by the maker of the statement linking it to the relying party and evincing its understanding of that reliance” (id. at384; see also Federal Ins. Co., 47 AD3d at 61). Although this doctrine may allow a nonclient to sue for legal malpractice, plaintiff here was not in “near privity” with defendants, as it has not pleaded that it relied upon a negligent misrepresentation made by defendants.

A third party may still have standing to bring a claim for legal malpractice where, through contractual or equitable subrogation, it brings the claim on behalf of the attorney’s client by stepping into their shoes legally (see Allianz Underwriters Ins. Co. v Landmark Ins. Co., 13 AD3d 172, 174 [1st Dept 2004]; Great Atl. Ins. Co. v Weinstein, 125 AD2d 214, 215 [1st Dept 1986]; Hartford Acc. & Indem. Co. v Michigan Mut. Ins. Co., 93 AD2d 337, 341 [1st Dept 1983], affd 61 NY2d 569 [1984]; see also Kumar v American Tr. Ins. Co., 49 AD3d 1353, 1355 [4th Dept 2008]). Plaintiff makes a persuasive argument that the decision of the motion court contradicts itself regarding plaintiff’s claims based in contractual and equitable subrogation on behalf of Tower B. The motion court determined that plaintiff was not entitled to bring its claims based in equitable subrogation because the payment it made as retrocessionaire on behalf of Tower B was actually a payment by the primary insurer, ACE American. However, the motion court then simultaneously held that plaintiff was not entitled to contractual subrogation because, despite the formal assignment by ACE American to plaintiff of its rights to all claims that it had against defendants arising from their representation of Tower B in the underlying Palaguachi action, ACE American did not actually have any claims to assign because it never made a payment. Clearly these positions are mutually exclusive.

As an equitable doctrine, subrogation is “designed to promote justice, and thus, is dependent upon the particular relationship of the parties and the nature of the controversy in each case” (Hamlet at Willow Cr. Dev. Co., LLC v Northeast Land Dev. Corp., 64 AD3d 85, 106 [2d Dept 2009], lv dismissed 13 NY3d 900 [2009], citing Matter of Costello v Geiser, 85 NY2d 103, 109 [1995]). The doctrine of equitable subrogation “is broad enough to include every instance in which one party pays a debt for which another is primarily answerable and which in equity and good conscience should have been discharged by the latter, so long as the payment was made either under compulsion or for the protection of some interest of the party making the payment, and in discharge of an existing liability” (Gerseta Corp. v Equitable Trust Co. of NY, 241 NY 418, 425-426 [1926]).”

“Recently, in Innovative Risk Mgt., Inc. v Morris Duffy Alonso & Faley (204 AD3d 518 [1st Dept 2022]),this Court found that plaintiff, the third-party administrator for the primary insurer, lacked standing to pursue a legal malpractice claim as equitable subrogee “because it did not insure the insureds; more specifically, the complaint [did] not allege, and the evidence [did] not show, that plaintiff had a contractual obligation to pay the claims in the underlying action” (id. at 518-519). In this case however, plaintiff specifically alleged that it was contractually obligated to pay, and did in fact pay, the remaining amount of the settlement on behalf of Tower B as retrocessionaire to Tower B’s primary insurer’s reinsurer, thus distinguishing the facts here from the facts in Innovative, where the plaintiff was a third-party administrator and not an insurer [*6]or reinsurer obligated to make a payment on behalf of the insured.”

“Where a reinsurer, or retrocessionaire, has paid a claim on behalf of an insured, equitable principles demand that the reinsurer be entitled to equitable subrogation on behalf of the insured. Having pleaded that it was contractually obligated to, and did, pay the majority of Tower B’s settlement amount in the underlying personal injury action, and that it brings the instant action for legal malpractice as subrogee of Tower B, plaintiff can proceed with this action under the theory of equitable subrogation.

Any rights plaintiff has as equitable subrogee accrued to it independently of any contractual provision upon payment of the loss under the Tower B policy. Therefore, “if we hold that plaintiff may properly make a claim as . . . equitable subrogee, as we do, it becomes unnecessary to determine whether plaintiff also has a valid claim as contractual subrogee. . . .” (see Federal Ins. Co., 75 NY2d at 371).”

457 Warburton Ave, LLC v Monna Lissa, LLC 2024 NY Slip Op 30423(U) February 7, 2024
Supreme Court, New York County Docket Number: Index No. 651358/2020 Judge: Louis L. Nock is quite unusual, and discusses a unique application of the statute of limitations to a legal malpractice (“attorney malpractice”) claim.

“This matter was initially brought on February 28, 2020, by plaintiffs’ motion for
summary judgment in lieu of complaint (NYSCEF Doc. Nos. 1, 2). In a decision and order dated December 7, 2020, the court denied the motion, on the grounds that plaintiff was not suing on a judgment or an instrument for the payment of money only (NYSCEF Doc. No. 27). The court then directed plaintiffs to file a formal complaint against defendants (id. at 2). Plaintiffs did so, prompting an answer and counterclaims from defendants. Relevant to the instant motion practice, defendants allege as a sixth affirmative defense that Monna Lisa is entitled to a set-off against plaintiffs. In addition, defendants allege that plaintiff Paul Sabaj, who acted as attorney for all of the parties in forming Monna Lissa and then plaintiff 457 Warburton Ave, LLC (“457”),1 committed malpractice through unlawful self-dealing, and failing to advise defendants Bindela and Pagliuca of their right to independent counsel before setting up 457. Defendants further assert that Sabaj is obligated to indemnify them for any of 457’s damages. Finally, defendants claim that Bindela, his company, and Pagliuca did substantial work renovating the property located at 457 Warburton Avenue, Hastings on Hudson, New York, for which they have not been compensated, and from which plaintiffs profited by the increased sale price garnered for the property.”

“Plaintiffs argue that this claim is time-barred, as Sabaj was terminated as of April 25,
2017, and a claim for attorney malpractice has a three-year statute of limitations (CPLR 214[6]), which expired on April 25, 2020.2 The COVID-19 toll in effect from March 20, 2020 (9 NYCRR 8.202.8), through November 3, 2020 (9 NYCRR 8.202.72), extended that time through December 9, 2020. Defendants did not assert their counterclaim for malpractice until January 12, 2021 – after the December 9, 2020, malpractice claim statute of limitations deadline had passed. Thus, Sabaj is correct in his assertion that any malpractice counterclaim against him in this lawsuit is time-barred.

The court observes two factors that might have saved defendants’ malpractice claim from the foregoing statute of limitations consequences: (i) the motion for summary judgment in lieu of complaint, which was the functional equivalent of a complaint, was filed February 28, 2020, within the defendants’ malpractice claim limitations period (ending December 9, 2020); and (ii) even though defendants’ malpractice claim would ordinarily have been barred by January 12, 2021 (the date their counterclaim was filed), as long as it was viable when the action commenced (February 28, 2020), it would have been deemed timely on January 12, 2021, by virtue of CPLR 203 (d) which provides that a “defense or counterclaim is not barred if it was not barred at the time the claims asserted in the complaint were interposed.” This would have been a way to reach
a conclusion that the January 12, 2021, malpractice counterclaim was timely even though, absent its nature as a counterclaim, it would have expired naturally, as a claim-in-chief, on December 9, However, defendants are unable to avail themselves of this procedural advantage for the following reason.

CPLR 3213 provides that “[i]f the motion [for summary judgment in lieu of complaint] is
denied, the moving and answering papers shall be deemed the complaint and answer, unless the court orders otherwise” (emphasis added). In this case, this court’s decision and order denying the motion (NYSCEF Doc. No. 27) expressly “order[ed] otherwise” (CPLR 3213) by directing plaintiffs to file a separate complaint (NYSCEF Doc. No. 27 at 2). The plaintiffs, in fact, did so on January 7, 2021, prompting defendants’ answer with counterclaims (including a malpractice counterclaim) on January 12, 2021. But in this instance, where this court did not convert the motion into a plenary action by deeming the motion papers as a complaint; but rather, directed the filing of a plenary complaint, defendants cannot take advantage of CPLR 203 (d)’s relation back provision because, as explained in the Practice Commentaries on CPLR 3213, the motion’s denial with direction to file a complaint effectively nullifies the initiatory effect of the motion
papers, and the complaint is viewed as a new initiatory filing bringing to bear all the risks of statute of limitations analysis anew. As the Practice Commentaries make clear, once a court opts for the filing of a plenary complaint as opposed to converting the motion to complaint status, any claim which would have naturally expired as of the time of the denial of the motion would remain so within the procedural context of the new complaint (see, David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3213:11 [“Effect of Denial; Conversion to Action; Dismissal”], C3213:19 [“Statute of Limitations Problems”] [2005 ed]). Thus, any relation-back benefit available to the defendants while the motion was pending, as such, pursuant to CPLR 203 (d), was lost once the motion was denied on December 7, 2020, and a new initiatory pleading by way of complaint was ordered to be filed. Although defendants still
had two days – till December 9, 2020 – to commence their own action for malpractice against Sabaj, they did not, and waited to pursue the claim by way of counterclaim in response to the January 7, 2021, complaint. The malpractice claim was stale by that point in time.3 Thus, the counterclaim for legal malpractice is dismissed.”

Plaintiff loses an appeal to the Second Circuit, and sues the Attorneys in Jackson v Law Offs. of Peter Sverd, PLLC 2024 NY Slip Op 30413(U) February 6, 2024 Supreme Court, New York County Docket Number: Index No. 153586/2023 Judge: Lisa S. Headley.

The Court found that there was no support for the legal malpractice claim.

“In the motion, the defendant argues, inter alia, that the plaintiff has failed to state a claim for legal malpractice since the plaintiff must assert that her attorney’s conduct “fell below the ordinary and reasonable skill and knowledge commonly possessed by a member of the profession.” Defendant argues the plaintiff failed to state that the defendant’s conduct breached the standard of care for attorneys because the plaintiff claims that the defendant “failed to gather new facts on appeal, which cannot serve as a basis for an appeal.” According to the Retainer Agreement, the defendant would render services in connection with an appeal of the Eastern District matter to the Second Circuit, wherein defendant filed a notice of appearance and initiated an appeal to the
Second Circuit. On July 14, 2020, the United States Court of Appeals for the Second Circuit denied the plaintiff’s petition for an appeal. (See, NYSCEF Doc. No. 26). Defendant further contends that during their legal representation of plaintiff, defendant did not make any promises of a result, or an outcome of the appeal.”

“Here, the Court finds that dismissal is warranted because plaintiff’s Complaint fails to state a cognizable cause of action for professional malpractice and breach of contract. As it pertains to the legal malpractice claim, “[d]ecisions regarding the evidentiary support for a motion or the legal theory of a case are commonly strategic decisions and a client’s disagreement with its attorney’s strategy does not support a malpractice claim, even if the strategy had its flaws.” Brookwood Companies, Inc. v. Alston & Bird LLP, 146 A.D.3d 662 (1st Dep’t 2017). In order to survive dismissal, the complaint must show that “but for counsel’s alleged malpractice, the plaintiff would not have sustained some actual ascertainable damages.” Franklin v. Winard, 199 A.D.2d 220 (1st Dep’t 1993 [internal citations omitted]. In addition, “it must be established that the attorney failed
to exercise that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community. It must also be established that the attorney’s negligence was a proximate cause of the loss sustained, and that the plaintiff incurred damages as a direct result of the attorney’s actions.” Hwang v. Bierman, 206 A.D.2d 360 (2d Dep’t 1994) [internal citations comitted]. “[W]hen a frustrated litigant complained of counsel’s omissions,’[p]laintiff’s remedy relies on prima facie proof that she would have succeeded’[.]” Pellegrino v. File, 291 A.D.2d 60, 63 (1st Dep’t 2002).

Here, this Court finds plaintiff’s arguments do not prevail, and even if the defendant
executed a different strategy, and whether the defendant had submitted certain documents, facts, or allegations at the time of the appeal, that would not have rendered plaintiff a more favorable outcome on her appeal. The plaintiff’s grievances or disappointment in the outcome of her appeal handled by the defendant does not constitute legal malpractice.”

Courts are institutionally wary of JL 487 cases. This wariness is demonstrated in Radiation Oncology Servs. of Cent. N.Y., P.C. v Warren 2024 NY Slip Op 00484
Decided on February 1, 2024 Appellate Division, Third Department.

“As more fully set forth in two prior decisions of this Court (Radiation Oncology Servs. of Cent. N.Y., P.C. v Our Lady of Lourdes Mem. Hosp., Inc., 221 AD3d 1324 [3d Dept 2023]; Radiation Oncology Servs. of Cent. N.Y., P.C. v Our Lady of Lourdes Mem. Hosp., Inc., 148 AD3d 1418 [3d Dept 2017]), plaintiff Radiation Oncology Services of Central New York, P.C. (hereinafter ROSCNY) entered into a written coverage agreement with Our Lady of Lourdes Memorial Hospital, Inc. (hereinafter Lourdes) pursuant to which ROSCNY was granted the exclusive right to provide oncology services at the hospital, with plaintiff Michael J. Fallon serving as medical director. After plaintiffs’ services were terminated, they commenced an action against Lourdes and certain other affiliated individuals for, among other things, breach of contract, libel and slander (hereinafter the Cortland County action). Following a lengthy period of discovery, plaintiffs moved for spoliation sanctions against Lourdes due to its failure to preserve and produce several documents during the discovery process. Plaintiffs also sought monetary sanctions against the attorneys of record for Lourdes based upon allegations that one of its attorneys, defendant Jeanette N. Warren, made intentionally false and misleading statements to Supreme Court and plaintiffs during the course of the years-long discovery litigation. Amongst the various falsehoods allegedly uttered, plaintiffs asserted that Warren repeatedly assured the court that a litigation hold had been implemented for the Cortland County action when, in fact, one had not been in place. In a series of orders, Supreme Court (Masler, J.) granted plaintiffs $10,000 in spoliation sanctions upon a finding that Lourdes failed to preserve certain documents, but declined to impose sanctions upon Lourdes’ attorneys.

Undeterred, plaintiffs commenced this action against Warren, defendant James Gleason and the law firm for whom they worked alleging causes of action pursuant to Judiciary Law § 487 related to the allegedly false and deceitful statements proffered by Warren, and purportedly consented to by Gleason, in the context of the Cortland County action. Defendants thereafter moved to dismiss the complaint for failure to state a cause of action and as barred by the doctrine of collateral estoppel. On the latter point, defendants argued that plaintiffs were collaterally estopped from relitigating the alleged Judiciary Law § 487 violations because they were all addressed and resolved in the context of plaintiffs’ motion for sanctions in the Cortland County action. Supreme Court (McBride, J.) denied the motion, and this appeal ensued.

We agree with defendants that, to the extent plaintiffs’ Judiciary Law § 487 claims are premised upon the statements made by Warren concerning the existence of a [*2]litigation hold in the Cortland County action, they are barred by principles of collateral estoppel. 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. . . , whether or not the tribunals or causes of action are the same” (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]; see Matter of Dunn, 24 NY3d 699, 704 [2015]). The doctrine applies “where the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the party who is being estopped had a full and fair opportunity to litigate the issue in the earlier action” (Simmons v Trans Express Inc., 37 NY3d 107, 112 [2021] [internal quotation marks and citation omitted]; see Matter of Molnar v JRL S. Hampton, LLC, 212 AD3d 974, 975 [3d Dept 2023], lv denied 39 NY3d 911 [2023]). To establish a claim under Judiciary Law § 487 (1), it must be shown that the defendant attorney engaged in “deceit or collusion, or consent[ed] to any deceit or collusion, with intent to deceive the court or any party.”

The record reflects that the issue of whether Warren attempted to intentionally deceive plaintiffs or the court in the Cortland County action by falsely representing that Lourdes had implemented a litigation hold was fully litigated in the Cortland County action and resolved by Supreme Court (Masler, J.) in its order declining to impose sanctions upon defendants. In that order, the court expressly rejected plaintiffs’ claims that defendants had “intentionally deceived and misled” the court and plaintiffs by inaccurately stating that a litigation hold was in place. In so concluding, Supreme Court specifically found that defendants did not engage in a “deliberate pattern of obstructing disclosure” and that their representations with regard to the litigation hold “[were] not without [a] factual basis” and did not “affirmatively mislead” the court or any party. Plaintiffs plainly had a full and fair opportunity to litigate this issue in the Cortland County action, a point underscored by the fact that they moved to renew their request for sanctions against defendants after they failed to succeed in obtaining such relief in the first instance. Because the issue of whether defendants engaged in intentional deceit in connection with the representations made concerning the existence of a litigation hold was already raised and decided in the Cortland County action, plaintiffs are precluded from relitigating that same issue in this matter (see Mortgage Elec. Registration Sys., Inc. v McVicar, 203 AD3d 919, 920 [2d Dept 2022]; Platt v Berkowitz, 203 AD3d 447, 448 [1st Dept 2022]; Doscher v Mannatt, Phelps & Phillips, LLP, 148 AD3d 523, 523-524 [1st Dept 2017]; Neroni v Follender, 137 AD3d 1336, 1337 [3d Dept 2016]).”

Sciocchetti v Molinsek 2024 NY Slip Op 00116 Decided on January 11, 2024
Appellate Division, Third Department is a case which highlights a common claim in matrimonial cases, that the attorney spun out the case for personal profit, and maybe, had a relationship going with one of the spouses while the attorney was profiting. Here, the court dissects the claims and allows for complete dismissal.

“Plaintiffs commenced this action on April 22, 2022 alleging claims under Judiciary Law § 487 related to a divorce action involving plaintiff Andrew Sciocchetti and his now-former wife (hereinafter the wife). Plaintiffs alleged in the complaint, among other things, that defendant, the wife’s attorney in the divorce action, made false representations in the divorce action, that defendant failed to disclose that he and the wife were romantically involved during the divorce action and that defendant wilfully delayed the divorce action for personal gain. In a pre-answer motion, defendant moved to dismiss the complaint under CPLR 3211 (a) (7). Supreme Court granted the motion. This appeal by plaintiffs ensued.”

The alleged deceit by defendant centers on the undisclosed romantic relationship between defendant and the wife during the divorce action. Plaintiffs, however, failed to sufficiently plead how the concealment of this relationship caused plaintiffs any damages or led to any adverse rulings in the divorce action (see Saporito v Branda, 213 AD3d 588, 589 [1st Dept 2023]; DeMartino v Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, 189 AD3d 774, 776 [2d Dept 2020]; Jean v Chinitz, 163 AD3d 497, 497 [1st Dept 2018]; cf. Tenore v Kantrowitz, Goldhamer & Graifman, P.C., 121 AD3d [*2]775, 776 [2d Dept 2014]). Plaintiffs maintain that Sciocchetti incurred additional legal fees in the divorce action, but failed to allege how such fees were attributable to defendant’s concealment of the relationship with the wife (see Mizuno v Barak, 113 AD3d 825, 827 [2d Dept 2014]). Furthermore, although plaintiffs alleged that defendant’s deceit resulted in fraudulent statements of net worth being filed, thereby forcing Sciocchetti to pay more financial support than was required, plaintiffs acknowledged that any error was corrected at the divorce trial. If anything, the allegations of a romantic relationship between defendant and the wife and the failure to disclose that relationship potentially compromised defendant’s representation of the wife and would give rise to a Judiciary Law § 487 claim by the wife (see e.g. A.M.P. v Benjamin, 201 AD3d 50, 57 [3d Dept 2021]).

Plaintiffs also argue that they stated a claim under Judiciary Law § 487 (2), which provides that recovery may be had when an attorney “[w]ilfully delays [the] client’s suit with a view to his [or her] own gain; or wilfully receives any money or allowance for or on account of any money which he [or she] has not laid out, or becomes answerable for.” Plaintiffs, however, only alleged in a conclusory manner that defendant wilfully delayed the underlying divorce action. Moreover, even accepting as true that defendant was contentious during the divorce action, took unreasonable settlement positions or engaged in protracted postjudgment divorce litigation, such behavior did not exceed the bounds of advocacy in a divorce action so as to constitute wllful delay within the meaning of Judiciary Law § 487 (2). The allegation that defendant failed to timely file the note of issue in the divorce action likewise did not amount to wilful delay. Accordingly, dismissal of the complaint for failure to state a cause of action was correct.”

Sciocchetti v Molinsek
2024 NY Slip Op 00116
Decided on January 11, 2024
Appellate Division, Third Department

Lautman v 2800 Coyle St. Owners Corp. 2024 NY Slip Op 00068 Decided on January 10, 2024 Appellate Division, Second Department is one of those inexplicable cases in which a plaintiff loses all, and then waits too long to sue the attorney. The question of how plaintiff lost it all never comes up for review.

“The plaintiff is the former proprietary lessee of a cooperative apartment located in Brooklyn. He owned shares of stock in the defendant 2800 Coyle St. Owners Corp. (hereinafter the co-op), the cooperative corporation that owns the building where the subject apartment is located. In 2012, the co-op commenced a nonpayment proceeding in the Civil Court of the City of New York against the plaintiff. In September 2013, a default judgment of possession was entered against the plaintiff. Thereafter, the plaintiff’s shares were sold at auction, and he was evicted from the apartment.

In 2019, the plaintiff commenced this action against the co-op, the Board of Directors of the co-op, Dependable Property Management, Inc. (hereinafter collectively the co-op defendants), and Sauchik & Giyaur, P.C. (hereinafter Sauchik), the law firm that represented the co-op in the nonpayment proceeding. The co-op defendants moved, inter alia, pursuant to CPLR 3211(a)(1), (5), and (7) to dismiss the complaint insofar as asserted against them. Sauchik separately moved pursuant to CPLR 3211(a)(5) and (7) to dismiss the complaint insofar as asserted against it. The [*2]plaintiff cross-moved, among other things, for leave to enter a default judgment against the defendants based upon their alleged failure to timely answer or move to dismiss the complaint. In an order dated June 16, 2020, the Supreme Court granted that branch of the co-op defendants’ motion, granted Sauchik’s separate motion, and denied the plaintiff’s cross-motion. The plaintiff appeals. We affirm.”

“Here, in their respective moving submissions, the co-op defendants and Sauchik demonstrated, prima facie, that the first, second, third, fourth, sixth, seven, eighth, ninth, and twelfth causes of action insofar as asserted against each of them were time-barred (see Chao v Westchester Med. Ctr. Advanced Physicians Servs., P.C., 131 AD3d 1130). In opposition, the plaintiff failed to raise a question of issue of fact (see Heritage Hills Socy., Ltd. v Heritage Dev. Group, Inc., 56 AD3d 426, 426-427). Contrary to the plaintiff’s contention, the application of the savings provision of CPLR 205(a), raised for the first time on appeal, “does not involve a pure question of law that appears on the face of the record and could not have been avoided if brought to the Supreme Court’s attention” (U.S. Bank N.A. v Doura, 204 AD3d 721, 723).”

It’s often said (and the PJI specifically covers this) that an attorney is not a guarantor of a good result. The attorney has to use reasonable efforts and not to depart from the standard of practice. Lopez v Pasternack, Tilker, Ziegler, Walsh, Stanton & Romano, LLP
2024 NY Slip Op 30318(U) January 18, 2024 Supreme Court, Kings County Docket Number: Index No. 514717/2023 Judge: Richard J. Montelione is a decision highlighting that principle.

” On or about February 11,2014, Decedent Alba Morales hired defendant Pasternack, Tilker, Ziegler~ Walsh, Stanton &Romano; LLP (”the Pasternack Firm”) to represent her in connection with her Workers’ Compensation claims. Defendant Matthew Funk, Esq. was the primary attorney handling her case. The complaint alleges that the Pasternack Firm and defendant Funk held themselves out to be experts in the field of Workers’ Compensation claims.

Ms. Morales’ Workers’ Compensation claims against her former employer Graphnet, Inc arose out of her September 200l work, related injuries and/or illness, Ms. Morales was employed by Graphnet,1nc. in September2001 to clean debris and ashes in buildings neat the World Trade Center in the wake of the September 11, 2001 attacks. Consequently. Ms. Morales developed gastroesophageal reflux disease (“GERD “) and interstitial lung disease.”

“Defendants submitted the Section ‘.32 Agreement to the Workers’ Compensation Board on April 15, 2019. A Workers’ Compensation hearing Was held on July 22. 2019 before Judge Schwartz. Judge Schwartz disapproved the Settlement without preJudice to return the case to the calendar once Ms. Morales obtained the requisite Letter from the World Ttade Center Health Program (“WTCHP”). Ms. Morales passed away on July30, 2020 due to her work-related iJlness. Plaintiff states in the complaint that upon Ms. Morales’ death, she was no longer eligible to receive compensation for the Section 32 Agreement, as she was no longer receiving medical care

The complaint alleges that defendants’ failure to obtain the Letter and finalize the settlement prior· to Ms. Morales’ death constituted a deviation from the good and accepted standards of legal practice in litigating Ms. Morales Workers’ Compensation Claim. However, the record shows that defendants made numerous attempts to obtain the Letter from the WTCHP. On the day of the hearing, July 22, 2019 Fischer Brothers, Esqs. ; the firm representing Graphnet; LLC and their insurance company, expeditiously sent a letter to the WTCHP requesting the Letter and sent a copy of said request to defendants (NYSCEF #8}. Defendants followed up. with Fischer Brothers, Esqs. via email om October 18, 2019 inquiring as to status of the letter (NYSCEF #9). An attorney from Fischer Brothers; Esq. and a:n attorney from the Pasternak’s Firm, Rochelle Jean-Baptiste (“Mr. Jean-Baptiste;;), confirmed via email that they would attempt to call the WTCHP regarding the letter (NYSCEF #9)”

“Accordingly; accepting the allegations in the complaint as true; and the additional facts by undisputed documentary evidence of the. attempts to obtain the Letter, plaintiff fails to state a cause of action for legal malpractice as there are no facts that show that defendants did not exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, that their breach proximatey caused the settlement to not be finalized, and that Ms. Morales’ damages were actual and ascertainable, Marinelli v. Sullivan Papa in Block, McGrath& Cannavo, P.C., supra.”

In Sharp v Ferrante Law Firm, 2023 NY Slip Op 05383 [220 AD3d 587], October 24, 2023
the Appellate Division, First Department found that there was no collateral estoppel, but nevertheless, the case was untimely.

“The motion court incorrectly applied the doctrine of collateral estoppel to preclude plaintiff’s legal malpractice claim, as plaintiff’s attorney-client relationship with defendants was not the issue determined in the arbitration between plaintiff and plaintiff’s former employer, Industry Model Group LLC d/b/a Industry Model Management (IMM). Nevertheless, the malpractice claim must be dismissed because it is time-barred. Plaintiff confirmed in the amended complaint that the alleged attorney-client relationship ended as of July 10, 2018. Therefore, the statute of limitations for plaintiff’s malpractice claim expired in July 2021, three years after the attorney-client relationship ended (see CPLR 214 [6]). As plaintiff did not commence this action until June 23, 2022, the malpractice claim is time-barred. Even if the malpractice claim was timely, it should be dismissed because plaintiff failed to allege any negligence on the part of defendants in connection with the July 2018 correspondence (to assist plaintiff’s re-entry into the United States), or that it harmed him.”

McGlynn v Burns & Harris, Esq. 2024 NY Slip Op 00187 Decided on January 17, 2024
Appellate Division, Second Department, which we discussed last week, has a secondary issue. Was it spoliation to discard a litigation file?

“In 2007, the plaintiff retained the defendant Burns & Harris, Esq. (hereinafter the B & H law firm), to represent him in the prosecution of an action to recover damages for personal injuries he allegedly sustained in March 2005 while working for United Parcel Service due to an allegedly defective condition on a loading dock in Brooklyn. The defendant Alison R. Keenan was the attorney assigned to handle the plaintiff’s case. The B & H law firm commenced two separate actions on the plaintiff’s behalf against alleged owners of the loading dock. The actions were consolidated (hereinafter the personal injury action), and a default judgment against all the defendants in the personal injury action was obtained, awarding the plaintiff the total sum of $255,914.50.

The plaintiff alleged that he was unable to collect the judgment because the insurance providers for the defendants in the personal injury action disclaimed coverage on the ground that timely notice of the claim was not provided. The plaintiff commenced this action against the B & H law firm and Keenan (hereinafter together the law firm defendants), among others, alleging, inter alia, legal malpractice for the failure to investigate and timely notify the applicable insurance carriers in the personal injury action.”

“The Supreme Court providently exercised its discretion in denying the plaintiff’s cross-motion pursuant to CPLR 3126 to strike the law firm defendants’ answer for spoliation of evidence. “A party that seeks sanctions for spoliation of evidence must show that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party’s claim or defense such that the trier of fact could find that the evidence would support that claim or defense” (Pegasus Aviation I, Inc. v Varig Logistica S.A., 26 NY3d 543, 547 [internal quotation marks omitted]; see S.W. v Catskill Regional Med. Ctr., 211 AD3d 890, 891-892). Here, the plaintiff failed to establish that the law firm defendants had an obligation to preserve the case file from the personal injury action or that it was destroyed with a culpable state of mind (see Tanner v Bethpage Union Free Sch. Dist., 161 AD3d 1210, 1211; Perez v Tedesco, 214 AD3d 1010, 1012).”

McGlynn v Burns & Harris, Esq. 2024 NY Slip Op 00187 Decided on January 17, 2024
Appellate Division, Second Department illustrates the proposition that attorneys must try to prove all causes of an accident, even when one of them seems more important than the other. Attorneys also have to try to make sure there is insurance on the other side.

“In 2007, the plaintiff retained the defendant Burns & Harris, Esq. (hereinafter the B & H law firm), to represent him in the prosecution of an action to recover damages for personal injuries he allegedly sustained in March 2005 while working for United Parcel Service due to an allegedly defective condition on a loading dock in Brooklyn. The defendant Alison R. Keenan was the attorney assigned to handle the plaintiff’s case. The B & H law firm commenced two separate actions on the plaintiff’s behalf against alleged owners of the loading dock. The actions were consolidated (hereinafter the personal injury action), and a default judgment against all the defendants in the personal injury action was obtained, awarding the plaintiff the total sum of $255,914.50.

The plaintiff alleged that he was unable to collect the judgment because the insurance providers for the defendants in the personal injury action disclaimed coverage on the ground that timely notice of the claim was not provided. The plaintiff commenced this action against the B & H law firm and Keenan (hereinafter together the law firm defendants), among others, alleging, inter alia, legal malpractice for the failure to investigate and timely notify the applicable insurance carriers in the personal injury action.”

“Contrary to the Supreme Court’s determination, the law firm defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them. The law firm defendants’ submissions in support of their motion did not establish, prima facie, the absence of at least one element of the legal malpractice cause of action (see Burbige v Siben & Ferber, 152 AD3d 641, 642). “Under the doctrine of judicial estoppel, also known as estoppel against inconsistent positions, a party may not take a position in a legal proceeding that is contrary to a position he or she took in a prior proceeding, simply because his or her interests have changed” (Bihn v Connelly, 162 AD3d 626, 627; see Archer v Beach Car Serv., Inc., 180 AD3d 857, 861). Here, the plaintiff’s allegation that he was injured due to a defect in the loading dock was not necessarily contrary to the position taken in his workers’ compensation claim that he suffered injuries while moving heavy boxes on the loading dock. There can be more than one proximate cause of a plaintiff’s injuries (see Scurry v New York City Hous. Auth., 39 NY3d 443, 454; Turturro v City of New York, 28 NY3d 469, 483; Moe-Salley v Highbridge House Ogden, LLC, 214 AD3d 722, 722; Reyes v S. Nicolia & Sons Realty Corp., 212 AD3d 851, 852). Accordingly, the court should have denied the law firm defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them.”