Simmons v Jones Law Group, LLC 2023 NY Slip Op 01316 Decided on March 15, 2023
Appellate Division, Second Department recites some simple and well-settled principles. Nevertheless, interpretation turns on a short and not deeply discussed issue. The client fires you, but the court will not let you go. What to do?

“In February 2014, the plaintiff, Juanita Simmons, retained the defendant Jones Law Group, LLC (hereinafter Jones Law), to defend her and her business in a personal injury action (hereinafter the underlying action). On February 18, 2015, Simmons purportedly discharged Jones Law during a telephone conversation with the defendant Andrew P. Jones. Although a letter dated March 23, 2015, memorializing this discharge was purportedly sent to Simmons for her signature, she never executed it. Jones Law thereafter filed three separate ex parte motions pursuant to CPLR 321 for leave to withdraw as counsel for Simmons and her business. Those motions were all denied.

On September 26, 2016, Simmons failed to appear for trial, either personally or by counsel, and an inquest was held. Subsequently, a judgment was entered against Simmons and her business in the principal sum of $357,460. Although Simmons and her business later moved, inter alia, to vacate the judgment entered upon their default, the Supreme Court denied that branch of the motion in an order dated October 18, 2018, upon determining that Simmons and her business lacked a reasonable excuse for the default.

On July 8, 2019, Simmons commenced the present action against Jones Law and Andrew P. Jones, inter alia, to recover damages for legal malpractice and breach of contract. The defendants moved, among other things, pursuant to CPLR 3211(a)(5) to dismiss those causes of action as barred by the doctrines of res judicata and collateral estoppel or, alternatively, to dismiss the legal malpractice cause of action as time-barred. In an order entered June 29, 2021, the Supreme Court, inter alia, denied those branches of the motion. The defendants appeal.”

“The Supreme Court properly determined that the present action was not barred by the doctrine of res judicata. The causes of action asserted by Simmons in the present action do not arise out of the same transaction or series of transactions as those raised in the underlying action, sounding in premises liability (see Cullen v Moschetta, 207 AD3d 699, 700; Vigliotti v North Shore Univ. Hosp., 24 AD3d 752, 754). Moreover, Simmons’s claims could not have been raised in the underlying action, since the defendants were not parties in that action and were not in privity to any of the parties (see Cullen v Moschetta, 207 AD3d at 700; Mosher v Baines, 254 AD2d 467).”

“Contrary to the defendants’ contention, the issue to be resolved in the present action is not identical to the issue decided in the October 18, 2018 order issued in the underlying action (see Weiss v Manfredi, 83 NY2d at 976; Mosher v Baines, 254 AD2d 467, 467). The issue decided in that order was whether Simmons and her business proffered a reasonable excuse for their default in appearing at trial. In contrast, at issue in the present action is whether the defendants were negligent in their representation of Simmons (see Weiss v Manfredi, 83 NY2d at 976). Since there is no identity of issue, Simmons is not collaterally estopped in this action.

“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” (Tulino v Hiller, P.C., 202 AD3d 1132, 1134-1135). “‘An action to recover damages arising from legal malpractice must be commenced within three years, computed from the time the cause of action accrued to the time the claim is interposed'” (Joseph v Fensterman, 204 AD3d 766, 769, quoting Schrull v Weis, 166 AD3d 829, 831; see CPLR 214[6]). “Accrual is measured from the commission of the alleged malpractice, when all facts necessary to the cause of action have occurred and the aggrieved party can obtain relief in court” (Farage v Ehrenberg, 124 AD3d 159, 164; see McCoy v Feinman, 99 NY2d 295, 301).

Here, the defendants failed to satisfy their initial burden of demonstrating, prima facie, that the cause of action alleging legal malpractice was untimely. Since the alleged malpractice occurred on September 26, 2016, when the defendants failed to appear for trial on Simmons’s behalf, this action, commenced less than three years later, was timely.”

Ankney v Gjoni Law, P.C. 2023 NY Slip Op 30733(U) March 9, 2023 Supreme Court, New York County Docket Number: Index No. 156246/2022 Judge: Lisa S. Headley and Ankney v Gjoni Law, P.C. 2023 NY Slip Op 30734(U) March 10, 2023 Supreme Court, New York County Docket Number: Index No. 156246/2022 Judge: Lisa S. Headley, (same caption, different defendants) are puzzling, but ultimately turn on procedural defects in this pro-se litigation. Why the failure to present proof of “no texting” did not state a cause of action seems lost in the procedural morrass.

On July 27, 2022, plaintiff filed this action against Gjoni Law, P.C., Gencian Gjoni, Esq.,
Haicken Law, and Matthew Haicken, Esq., (“Defendants”) for alleged legal malpractice arising out of the Defendants’ prosecution of plaintiffs underlying action to recover for personal injuries sustained when plaintiffs bicycle collided with a motor vehicle. Plaintiff hired Defendant Matthew Haicken for plaintiffs personal injury action against the motorist. During discovery in the underlying action, the motorist alleged that plaintiff was inattentive and was texting on his phone prior to the collision, however plaintiff claims he provided his attorney, Defendant Haicken, with time-stamped evidence that he was not texting at that time. As a result, upon a motion for summary judgment on liability, the Court determined that plaintiff established that the motorist had violated
local traffic laws, however, plaintiff failed to establish he was free from comparative negligence in this accident. Therefore, the Court granted plaintiffs summary judgment motion on the issue of liability and ordered a trial on the questions of”[c]omparative fault of the plaintiff, if any.”

Plaintiff alleges that after the issuance of the summary judgment order, Defendant Haicken referred the underlying personal injury case to Defendant Gjoni to handle the trial on the issue of comparative liability. Plaintiff asserts, inter alia, that he informed Defendant Gjoni that he had phone records that would refute the defense claim that plaintiff was using his phone at the time of the collision.

At the personal injury trial, plaintiff alleges that the attorneys for the motorist presented witnesses and evidence to suggest that plaintiff was texting when the accident occurred in order to prove their affirmative defense of comparative liability. Plaintiff claims that his attorney, Gjoni questioned the driver of the motor vehicle, and challenged his credibility, and then Gjoni rested the plaintiffs case without calling plaintiff or the responding police to testify or offer the phone records or photographic evidence. After deliberation, the jury determined unanimously that plaintiff was negligent and 99% responsible for the accident. Plaintiff also alleges that Gjoni
advised plaintiff that he had half an hour to decide whether to accept a $2,500.00 settlement offer, and Gjoni did not advise plaintiff as to alternative options available to him. Subsequently at the trial on damages, plaintiff alleges, again that his attorney, Gjoni called no medical expert, and the jury unanimously awarded no damages.”

“

This Court finds that plaintiff’s complaint and the amended complaint both fail to assert
facts in support of any element of the negligence and breach of fiduciary claims. Plaintiff did not establish or demonstrate the negligence of counsel, proximate cause of their loss, and proof of actual damages. On the contrary, plaintiff relies on allegations and inferences which do not provide for an enforceable right ofrecovery. Id at 29 N.Y.3d 137, 142. Furthermore, plaintiff has failed to demonstrate that he would have not sustained losses “but for” defendant’s negligence and has not demonstrated to the court that plaintiff would have achieved a better outcome at trial.

On a motion brought under CPLR §3211 (a)(l) dismissal is warranted when documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law.” Allegations that are “bare legal conclusions” or that are “inherently incredible or flatly contradicted by documentary evidence” are not sufficient to withstand a motion to dismiss.” RTW Retailwinds, Inc. v. Colucci & Umans, No. 150794/20, 2023 WL 1974320 (N.Y. App. Div. Feb. 14, 2023). Here, as evidenced by NYSCEF Doc. No. 11, plaintiff entered into a retainer agreement with the Haicken Defendants, which established that the Haicken Defendants had the right to associate and allow as trial counsel, Defendants Gjoni.

Plaintiff has not demonstrated how the Haicken Defendants, by assigning trial counsel,
caused plaintiff’s alleged damages. Pursuant to a motion brought under CPLR §3013 “statements in pleadings shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.” Here, plaintiff has coupled the defendants in his complaint without ascertainable causation. More specifically, the complaint lacks facts to support a showing that a different trial counsel would have achieved a better outcome.”

(from the second decision) “This Court finds that the plaintiff’s complaint and the Amended complaint both fail to assert facts in support of any element of the negligent and breach of fiduciary claims. The defendant has demonstrated by competent evidence, and attached as Exhibits A and C of the motion (seq. no. 001), as proof of plaintiff’s duplicative filings of the complaint, both filed by counsel and by prose plaintiff. (See, NYSCEF Doc. No. 5 and 7). Here, plaintiff has failed to establish the negligence of counsel, proximate cause of his loss, and proof of actual damages. Furthermore, plaintiff has failed to demonstrate that he would have not sustained losses “but for” defendant’s negligence and has not demonstrated to the court any alternative manner by which plaintiff would have been successful in winning his case.
A court has broad discretion in considering whether to dismiss an action, pursuant to CP LR §3211 (a)(4), on the ground that another action is pending between the same parties on the same cause of action. Whitney v. Whitney, 57 N.Y.2d 731, 732 (1982). Plaintiff’s complaints only differ in regard to the signature lines on the submitted complaints. The first complaint was signed by plaintiff’s counsel, and the later dated complaint was signed by pro se plaintiff. As such, both the complaint and the Amended complaint must be dismissed because plaintiff has impermissibly filed two complaints
addressing two very same issues. (See, NYSCEF Doc. No. 5-7).In opposition, the plaintiff does not refute the arguments of duplicate filings, or state the status of those cases.”

The mathematics of calculating the statute of limitations in light of the Covid tolling periods is discussed in Lewner v Dahill 2023 NY Slip Op 30629(U) February 28, 2023
Supreme Court, New York County Docket Number: Index No. 805366/2021 Judge: Leslie A. Stroth. This decision serves as a template in adding days to the underlying statute of limitations for cases subject to Covid tolling between March 20, 2020 and November 2, 2020.

“The instant motion arises out of an action to recover damages for alleged breach of contract, legal malpractice, and breach of fiduciary duty. Plaintiff Charles Lewner (plaintiff), represented . by counsel, alleges that defendants William Dahill and Wollmuth Maher & Deutsch, LLP (together, defendants) failed \o properly represent-him in two separate legal proceedings – an Article 81 guardianship proceeding seeking guardianship of the person and property of his late father and a proceeding concerning the estate of his late mother.”

“Here, all claims are time-barred. With respect to plaintiff’s first cause of action, the Article 81 guardianship proceeding concerning plaintiff’s late father, plaintiff alleges in his amended complaint that defendants committed malpractice in agreeing to the terms of a stipulation involving the management of real property dated January 20, 2017, which was so-ordered by Honorable Tanya R. Kennedy. Defendants assert that the claim accrued on January 20, 2017 and that plaintiff was required to commence the subject action by January 20, 2020. Plaintiff commenced this action on November 18, 2021 – 1 year, 9 months, and 29 days after the statute of limitations expired. Additionally, even if this cause of action accrued following plaintiff’s counsel’s relief from representation on June 6, 2017 and even considering the ensuing 30-day stay, plaintiff’s claim is still untimely.”

“The Court notes that on March 20, 2020, Governor Andrew M. Cuomo issued Executive
Order (EO) No. 202.8, which tolled the statute of limitations on civil cases due to the COVID-19 pandemic. 1 This EO was extended until November 3, 2020.2 Regarding plaintiffs first cause of action, as discussed above, defendants correctly assert (and plaintiff has not objected) that the statute of limitations expired on January 20, 2020. This was before the EO was issued and, therefore, stands as the proper date of expiration of this claim. Even if the Court were to consider the accrual date to be July 6, 2017, after the 30-day stay, the statute of limitations would have expired on July 6, 2020 and plaintiff would have had slightly over three months to commence this action at the time the EO was issued. Therefore, the statute of limitations after the EO tolling period would have expired in February 2021, and given that the complaint was filed on November 18, 2021, it was still untimely.

Regarding plaintiffs second cause of action, again, the date of expiration of the statute of limitations was June 23, 2020. This fell during the EO’s tolling period. When the EO was put in place on March 20, 2020, plaintiff had approximately three months remaining to bring this claim before it would have expired on June 23, 2_020, but the tolling period moved the date of expiration to three months after the EO ended on November 3, 2020, or February 3, 2021. Plaintiff did not commence this action until November 18, 2021. Therefore, this claim is still untimely despite the EO tolling period.”

Mensch v Calogero 2023 NY Slip Op 30621(U) February 28, 2023 Supreme Court, New York County Docket Number: Index No. 155795/2022 Judge: Dakota D. Ramseur reaches an unusual outcome where the legal malpractice claim is dismissed yet the breach of contract claim remains viable.

“According to the complaint, on October 9, 2017, plaintiff retained defendant Cohen Clair, Lans Greifer, Thorpe Rottenstreich, LLP (law firm), including Michael Calogero and Bernard E. Clair in the underlying divorce action between plaintiff and her ex-husband in New York Supreme Court, New York County, entitled Peter Mensch v. Louise Mensch (index no. 309381/2017). The parties in the underlying divorce action contested the division of their assets. The divorce action settled pursuant to the July 19, 2019, filing of the so-ordered stipulation, providing for, among other things, the division of the parties’ marital property.

Plaintiff alleges that she discovered certain state and federal income tax overpayments in the total amount of $1.1 million made from accounts that were, at the time of the overpayment, parts of the marital estate, after entering into the stipulation. Plaintiff alleges that the law firm’s failure to discover the tax refund amounts and the omission of those amounts in the stipulation constitute legal malpractice. Plaintiff further alleges that defendants failed to adequately divide the estate as required by the retainer agreement between plaintiff and defendants. The retainer agreement drafted by defendants and executed by both parties, describes the scope of services to
be provided by defendants to plaintiff, including that defendants “[ w ]ill explain to you the laws pertinent to your situation, available options and the attendant risks.”

Plaintiff commenced this action alleging that defendants, through omission and negligent acts, failed to advise plaintiff that there was $1. l million in tax overpayments made from accounts which were part of the marital estate or that a potential tax refund would be an asset class to investigate. Plaintiff further alleges that completely failed to take into account any possibility of marital funds being held by any tax authority in the drafting and negotiation of the Settlement Agreement. As a result, plaintiff alleges, she entered into the settlement agreement without knowing the true value of the marital assets. Had she known, plaintiff alleges, she would not have ent.ered into the agreement.

In relevant part, the stipulation states that defendants have engaged in extensive
discovery in the underlying action. The stipulation further states that:
“[b ]oth parties expressly acknowledge that after due deliberation and careful
analysis, they have instructed their attorneys not to continue to trial in this
Action, or to seek further disclosure, inspection, depositions, or investigation of
the other’s assets and income. Each party acknowledges that he/she is sufficiently
satisfied with the disclosure received to date”.”

” Here, plaintiff states a cause of action for legal malpractice against defendants by alleging that plaintiff retained defendants to represent her interest in the underlying divorce action against her ex-husband, that defendants were negligent in failing to conduct a basic line of necessary investigations and inquiry regarding tax liabilities or obligations of the marital estate, and as a result, defendants were unable to properly advise plaintiff and limited the ability of plaintiff to knowledgeably participate in the negotiations in the division of marital assets-reducing her portion of the assets divided ..However, defendants demonstrate that plaintiffs claim is precluded by the settlement
agreement. In DeGregorio v Bender, 4 AD3d 384, 385 [2d Dept 2004]), Appellate Division, Second Department reversed the lower court’s denial of the defendants’ motion for summary dismissal of plaintiffs claims for legal malpractice, finding that the claim was “[b]elied by the terms of the stipulation and her approval of those terms in open court” (id.). Specifically, the court in DeGregorio determined that “[t]he parties explicitly acknowledged that they had been advised by their respective attorneys of their right to disclosure regarding the value of their property and business interests, that certain disclosure had been conducted, and that to the extent it had not been conducted, they waived their right to any further disclosure” (id. at 385).

Here, like in DeGregorio, the stipulation indicates that plaintiff was satisfied with the
discovery received as of the date of the settlement of the underlying action and further, plaintiff explicitly waived the opportunity to investigate further into the assets that made up the marital estate (see Karakash v Trakas, 163 AD3d 788, 790 [2d Dept 2018] [“stipulation of settlement in the divorce action, and a transcript from the divorce proceeding on the day the stipulation was signed by the parties” … “flatly refuted the plaintiff’s allegation that the defendant had failed to engage in the necessary due diligence to determine.the identity and value of the marital assets involved in the underlying divorce action”]).”

“The Court declined to dismiss plaintiff’s claim for breach of contract. Defendants’
arguments concerning plaintiffs breach of contract claim are focused on the circumstance where a legal malpractice claim is predicated upon the same fact and seeks the same relief as a breach of contract claim (see Sabo v Alan B. Brill, P.C., 25 AD3d 420, [1st Dept 2006]; Schulte Roth & Zabel, LLP v Kassover, 80 AD3d 500,501 [1st Dept 2011]). In those circumstances, the breach of contract duty claim is duplicative and should be dismissed. However, as discussed above, plaintiffs legal malpractice claim is dismissed. As defendants’ do not argue an independent basis
to dismiss the breach of contract claim, that branch of defendants’ motion is denied.”

Aaglane v Sami 2023 NY Slip Op 30636(U) March 3, 2023 Supreme Court, New York County Docket Number: Index No. 151262/2019 Judge: Mary V. Rosado is an interesting variant on the more usual case where Plaintiff is being sued for fees and brings a legal malpractice case against the attorney. In that setting, collateral estoppel of res judicata issues arise. Here, where the attorney seeks to join a case against a different party for legal fees the Court denies the request.

“This case was commenced on February 5, 2019 and arises out of Defendant’s alleged
malpractice during the course of her representation of Plaintiff in her divorce action against nonparty Khitri (NYSCEF Doc. 1). On January 8, 2021, Defendant moved for summary judgment dismissing Plaintiffs Complaint (NYSCEF Doc. 9 or “Mot. Seq. 001 “) Plaintiff cross-moved seeking to compel Defendant to respond to certain discovery demands (NYSCEF Doc. 11 ).”

“Defendant makes the instant motion pursuant to CPLR § 602(a) (NYSCEF Docs. 82-83).
CPLR § 602(a) provides “when actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue … and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Where cases involve different facts, witnesses, claims, injuries, and defendants “individual issues predominate … so as to preclude the direction of a joint trial” (Gillard v Reid, 145 AD3d 446 [1st Dept 2016] quoting Abbondandolo v Hitzig, 282 AD2d 224, 225 [1st Dept 200 I]). Moreover, where actions are at different procedural postures a motion for a joint trial should not be granted (Maurer v Maurer, 96 AD3d 417,417 [1st Dept 2012]). Further, where two
actions involve different issues and disparate legal theories, it has been held there is a risk of confusing and “rendering the litigation unwieldy” (Ka/adze v Ocean Park Acquisition, L.P., 203 AD3d 1151 [2d Dept 2022] citing Gillard at 446).

The instant action is a legal malpractice action by Plaintiff against Defendant, her former lawyer in a matrimonial action (NYSCEF Doc. 1). The factual issues have to do with Defendant’s alleged abandonment of Plaintiff’s case; alleged loss of critical documents belonging to Plaintiff, Defendant’s alleged breach of confidentiality, Defendant’s prolonged absence from the country on the eve of trial, Defendant’s alleged failure to investigate key assets in the matrimonial action, Defendant’s alleged misappropriation of client funds, Defendant’s alleged failure to provide Plaintiff with a statement of client’s rights and responsibilities, and Defendant’s alleged lack of
expertise and experience with contested divorce cases (NYSCEF Doc. 1 at 116-42). On the other hand, the case Defendant seeks to join for trial involves $5,000 in allegedly unpaid attorneys’ fees which Khitri allegedly agreed to pay Defendant in an open court stipulation in the matrimonial action.

Here, the legal theories and issues are wholly separate. Moreover, the only party in
common in the two actions is Defendant. Khitri is not a party to this action, and Plaintiff is not a party to the Civil Court action. Further, the Civil Court action is far more simple and seeks damages in a far lesser sum than the instant legal malpractice action, and for that reason is in Civil Court which is the designated forum for expedited relief in disputes over relatively minor sums. Here, the parties have made multiple discovery motions and it appears depositions have not even begun. The parties have failed to enter into any discovery orders since their preliminary conference order dated November 18, 2021. As such, the procedural postures of the two actions are completely
different. These factors militate towards denying Defendant’s motion.”

Golub v Shalik Morris & Co., LLP 2022 NY Slip Op 03888 [206 AD3d 799] June 15, 2022
Appellate Division, Second Department is a pair of cases claiming accounting fees and accounting malpractice. Neither side could demonstrate the lack of material questions of fact.

“In May 2016, Aaron Richard Golub commenced an action in the Supreme Court, New York County, against the accounting firm of Shalik, Morris & Company, LLP (hereinafter the Shalik firm), seeking, among other things, the return of his accounting records and files (hereinafter action No. 1). The Shalik firm answered and interposed counterclaims against Golub sounding in breach of contract and quantum meruit. Golub served a reply asserting affirmative defenses alleging, inter alia, accounting malpractice.

In June 2016, the Shalik firm commenced an action in the Supreme Court, Nassau County, against Golub’s companies, Aaron Richard Golub, Esquire, P.C., and Sunset Boulevard Films, Ltd. (hereinafter together the Golub companies), alleging causes of action sounding in breach of contract and quantum meruit (hereinafter action No. 2). The Golub companies answered and asserted affirmative defenses alleging, among other things, accounting malpractice. The counterclaims in action No. 1 were severed and were later joined for trial with action No. 2 in the Supreme Court, Nassau County.

[*2] In June 2019, Golub and the Golub companies moved in both actions, in effect, for summary judgment (1) dismissing the Shalik firm’s causes of action and counterclaims asserted against them, and (2) on their affirmative defenses alleging accounting malpractice. The Supreme Court denied the motion, and Golub and the Golub companies appeal. We affirm.

Golub and the Golub companies failed to establish their prima facie entitlement to judgment as a matter of law dismissing the breach of contract and quantum meruit causes of action and counterclaims to recover payment for accounting services rendered. The evidence submitted in support of their motion failed to eliminate triable issues of fact as to whether the parties had agreed upon a flat fee arrangement as contended by Golub and the Golub companies (see 2978 Gas Corp. v United Fleet, Inc., 197 AD3d 1138, 1139 [2021]; see generally Cobble Hill Nursing Home v Henry & Warren Corp., 74 NY2d 475, 482 [1989]). Additionally, they failed to establish, prima facie, their entitlement to judgment as a matter of law on their affirmative defenses alleging accounting malpractice (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Alskom Realty, LLC v Baranik, 189 AD3d 745 [2020]). Accordingly, Golub and the Golub companies’ motion was properly denied without regard to the sufficiency of the Shalik firm’s papers in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; 2978 Gas Corp. v United Fleet, Inc., 197 AD3d at 1140). Miller, J.P., Maltese, Zayas and Ford, JJ., concur.”

Saporito v Branda 2023 NY Slip Op 00968 Decided on February 21, 2023 Appellate Division, First Department is an example of the unsuccessful use of Judiciary Law 487 claims. Courts are quick to dismiss these claims, which are not “lightly given” and rarely successful. Here the claimed deceit was an attorney telling the court that the mother in a custody dispute was “unemployed” when the mother was being offered a job as the attorneys personal assistant.

“Defendant contends that the mother did not begin working for her until September 2, 2014 and that the court did not rely on this statement because it maintained the 2-2-3 parenting schedule even after it learned of the mother’s employment.

The first cause of action under Judiciary Law § 487 was properly dismissed, as plaintiff failed to plead any cognizable damages proximately caused by the alleged false statement made by defendant to the court (see Amalfitano v Rosenberg, 12 NY3d 8, 15 [2009]). The employment status of the mother of plaintiff’s child was not determinative of the court’s modification of the visitation schedule. In addition, the alleged single act of deceit was not “sufficiently egregious” to support the claim (see Strumwasser v Zeiderman, 102 AD3d 630, 631 [1st Dept 2013]). Moreover, the claim is barred as a collateral attack on orders issued in the underlying Family Court proceeding (see Specialized Indus. Servs. Corp. v Carter, 68 AD3d 750, 751-752 [2d Dept 2009]).”

Mid City Elec. Corp. v Peckar & Abramson 2023 NY Slip Op 01085 Decided on March 1, 2023 Appellate Division, Second Department cleanly lays out the most unique issue that arises in legal malpractice (and not in other) settings: “But for” the negligence, would there have been a better result? This is the “case within a case” legal malpractice issue. Here, the question is whether a missed appeal would have been won.

“The plaintiffs, Mid City Electrical Corporation (hereinafter Mid City) and its owners, Terric McFarlin and John J. Holzer, commenced this action, inter alia, to recover damages for legal malpractice against, among others, the defendants Peckar & Abramson, Charles E. Williams III, and Christopher Bletsch (hereinafter collectively the defendants). The plaintiffs alleged that by letter [*2]dated September 18, 2015, the New York State Department of Transportation proposed to terminate the status of Mid City as a disadvantaged business enterprise (hereinafter DBE). Thereafter, Mid City retained the services of the defendants to litigate a challenge to that proposal. After unsuccessfully appealing to the New York State Department of Transportation directly, the defendants commenced a proceeding pursuant to CPLR article 78 on behalf of Mid City to stay the termination of its status as a DBE. That proceeding was dismissed on the ground that Mid City failed to file an appeal with the United States Department of Transportation. The order and judgment dismissing that proceeding was affirmed by the Appellate Division, First Department (see Matter of Mid City Elec. Corp. v Metropolitan Transp. Auth., 148 AD3d 497, 498).”

“With respect to the legal malpractice cause of action insofar as asserted by Mid City against the defendants, the complaint was required to contain factual information showing that the attorneys’ actions, inter alia, proximately caused Mid City to sustain actual and ascertainable damages (see Gorbatov v Tsirelman, 155 AD3d 836, 838). “‘An attorney’s conduct or inaction is the proximate cause of a plaintiff’s damages if but for the attorney’s negligence, the plaintiff would have succeeded on the merits of the underlying action, or would not have sustained actual and ascertainable damages'” (Nill v Schneider, 173 AD3d 753, 755, quoting Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 50). “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” (Denisco v Uysal, 195 AD3d 989, 991 [internal quotation marks omitted]).

Here, even accepting the facts alleged in the complaint as true, and according Mid City the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87), the complaint failed to plead specific factual allegations demonstrating that, but for the defendants’ alleged negligence, there would have been a more favorable outcome regarding the termination of Mid City’s status as a DBE (see Rudovic v Law Off. of Timothy A. Green, 200 AD3d at 815; Denisco [*3]v Uysal, 195 AD3d at 991; Cusimano v Wilson, Elser, Moskowitz, Edelman & Dicker LLP, 118 AD3d 542, 542). The allegation that Mid City lost the opportunity to pursue an administrative appeal, without any indication that the appeal would be successful, is insufficient to state a claim (see Coccia v Liotti, 70 AD3d 747, 754). Similarly, the allegation that Mid City would have been recertified as a DBE had the defendants requested a hearing, rather than having filed a written response to the initial letter proposing termination of its status as a DBE, is speculative and conclusory (see Densico v Uysal, 195 AD3d at 991).

Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the legal malpractice cause of action insofar as asserted by McFarlin and Holzer against them, but should have granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the legal malpractice cause of action insofar as asserted by Mid City against them.”