We previously discussed Giannone v Silvestri 2026 NY Slip Op 30171(U) February 4, 2026 Supreme Court, Tioga County Docket Number: Index No. 2024-00064107
Judge: Eugene D. Faughnan and stopped after a discussion of the fraud claims against all. The attorney defendants (really third-party defendants) have special defenses to the claims that they allowed a fraudster to claim ownership of real property and sell it fraudulently to their clients.

“In addition to the lack of particularity argument, Pasto and Pasto Law Finn also argue
that the fraud claim should be dismissed because it duplicates the negligence claim. The fraud claim against Pasto alleges that she failed to protect Defendants from misrepresentations in the sale of the premises (NYSCEF Doc. No. 6 at , 67).

The alleged negligence here was in Pasto/Pasto Law failing to protect Defendants from
the impostor. Where a cause of action for fraud arises from “the same facts as the [negligence or] legal malpractice cause of action, and [does] _not allege distinct damages”; the fraud claim is properly dismissed. Biberaj v. Acocella, 120 AD3d 1285, 1287 (2nd Dept. 2014); see, Postiglione v. Castro, 119 AD3d 920 (2nd Dept. 2014); Daniels v. Turco, 84 AD3d 858 (2nd Dept. 2011). Silvestri and Lamb allege that they retained Pasto to handle the sale and to protect their rights. Since the Court has concluded that Silvestri and Lamb are entitled to discovery to identify and describe the fraud, the Court cannot yet determine if the fraud and negligence/legal malpractice cause of actions are based the same underlying facts. Therefore, the Court cannot dismiss the fraud cause of action against Pasto and Pasto Law Finn as duplicative at this
juncture.”

“Pasto/Pasto Law represented Silvestri and Lamb, the buyers in this transaction. It is
alleged that Defendants completed the purchase as advised by Pasto, and that Pasto/Pasto Law profited due to their own negligence. Thus, the basis of the claim is that Pasto’ s negligence led to Defendant’s loss and pecuniary gain to Pasto/Pasto Law, such that Pasto/Pasto Law was unjustly enriched. The Court concludes that the facts, legal arguments and relief sought are the same, and that the unjust enrichment claim against Pasto/Pasto Law duplicates the negligence claim. See, e.g. Boesky v. Levin, l 93 AD3d 403 (1 st Dept. 2021 ); O.K. Petroleum Intl., Ltd. v. Palmieri & Castiglione, LLP, 136 AD3d_ 767 (2nd Dept. 2016); Hyman v. Burgess, 125 AD3d 1213 .”

“An unjust enrichment claim is not a “catchall” and is generally not available when other
causes of action are available. Here, the Court concludes that Defendants’ unjust enrichment claims are duplicative of their claims for negligence and breach of contract. Accordingly, the unjust enrichment claim is dismissed against all parties.”

“Pasto and Pasto Law argue that Defendants have failed to allege sufficient facts to
support a claim for legal malpractice. In particular, Pasto and Pasto Law_point out that
Defendants signed the purchase contract prior to retaining Pasto and Pasto Law, so they had already been defrauded by the impostor. They further claim that Defendants have failed to allege any facts that Pasto knew, or should have known, of the fact that someone else was posing as Giannone, or that Pasto deviated from the standard of care to provide competent legal services.

Although it appears that Defendants signed the contract prior to retaining Pasto, the Court is unpersuaded th_at such a fact shields a buyers’ attorney from any and al~ duties or liability pertaining to a forged seller’s signature. In a real estate transaction, it is not uncommon for the buyer to sign the contract ·first and then retain an attorney to handle to transaction and closing. The fact that the contract was signed does not mean that the buyer’s attorney is insulated from the effects of the execution of the contract, or the terms contained therein. In fact, review of the contract is the starting point of the representation, as it contains many items crucial to the buyer’s attorney’s representation. Those could include things such as inspection deadlines, any contingencies, property description, price, earnest money deposit, closing date, items included or excluded, as well as the parties. to the contract. Although the contract may have already been signed, the buyer’s attorney needs to ensure that all the criteria are met, and that may include considering if the seller has authority to sell the property. The Court cannot identify all the responsibilities that a buyer’s attorney may have, and Defendants have not provided details about what other actions ought to have been taken, but as noted above, the fraud and concealment surrounding the impostor make facts and details scarce to the buyers. Such facts may come to light during discovery, and the Court finds that it would be premature to dismiss Defendants’ claim for negligence/legal malpractice at this point.”

“Pasto seeks to dismiss claims directed at her individually. She claims, and Defendants do not dispute, that all the actions she to~k were through her law firm. For example, the Third-Party _ Complaint notes that Defendants “utilized Rhonda Pasto, Esq. of Pasto Law Firm, P.C. as their Attorney for this process.” There are no allegations that Ms. Pasto acted in her individual capacity or in any manner other than through her law firm or professional corporation.

Despite the fact that Pasto performed services through her professional corporation, that does not mean she is not exposed to any personal liability. Where a legal malpractice claim is brought against a law firm organized as a professional corporation, a member “can be personally liable for the negligent performance of those services if [ s ]he participated in the negligent acts or supervised and controlled the members of the corporation who committed the negligent acts” Beltrone v. General Schuyler & Co., 223 AD2d 938, 939 (3rd Dept. 1996), citing We ‘re Assocs.Co. v. Cohen, Stracher & Bloom, 103 AD2d 130 (2nd Dept. 1984), aff’d65 NY2d 148 (1985); Business Corporation Law§ 1505(a); see, Ruggiero v. Miles, 125 AD3d 1216 (3rd Dept. 2015).

Therefore, the motion to dismiss Pasto individually is denied.”

Giannone v Silvestri 2026 NY Slip Op 30171(U) February 4, 2026 Supreme Court, Tioga County Docket Number: Index No. 2024-00064107 Judge: Eugene D. Faughnan is a classic fraudster story. Property owner acquires title to property in 2014 through a bankruptcy sale. People are brought to the property, told it is for sale, and sign a contract. Problem is that the “seller” is not the actual owner. Chaos ensues after a closing.

“his case involves ownership of real property located at 211 Weiss Road in the Town of
Tioga. Plaintiff, Robert Giannone commenced an action to quiet title to the property pursuant to Article 15 of the Real Property and Proceedings Law. Plaintiff claims that, despite Silvestri and Lamb filing a deed to the property on September 30, 2024, Plaintiff is the rightful owner, having obtained title to the property via a bankruptcy sale on January 27, 2014 for $81,500, and that he has not transferred his ownership.
The Silvestri and Lamb deed was filed by Pasto Law Firm, P.C., which had been retained
by Defendants to handle the closing. The purchase price was listed as $80,000, and the closing statement shows the total cost of purchase as $81,336.81 when including filing fees and tax payments. Notwithstanding that deed, Plaintiff claims that the 2024 deed is a forgery and that he never sold his property to the Defendants. He points out that the notarization of his signature was made by a Texas notary on September 13, 2024, but that Plaintiff lives in New Jersey, further supporting a conclusion that the signature on the deed was not his.
According to Defendants, they were looking to buy land in the Tioga County area to be
used for hunting and other recreational purposes. Defendants worked with Tom Bronk, from Howard Hanna Real Estate Services (“Howard Hanna”), to help locate a suitable property. The property was listed in a posting by Howard Hanna. Believing the property to be for sale, Silvestri and Lamb walked the property with Bronk on July 21, 2024 and made an offer to purchase the property. The following day, they signed a purchase offer, which was apparently accepted by an impostor purporting to be the owner. The person posing as the owner/seller has never been identified.
Defendants retained Rhonda Pasto, with Pasto Law Firm, to handle the purchase and
closing. The purported owner/seller was represented by Thomas Collison and Meagher
Attorneys at Law (“TCM”), and TCM provided an Abstract of Title Continuation. The closing took place at the Law offices ofTCM on September 27, 2024. The deed transfer was pre-signed, supposedly by Giannone, and contains a notarization from Minerva Hollingsworth, who is employed by Great American Title Company of Baytown, Texas (“Great American Title”). Subsequent to the closing, information was obtained that Ms. Hollingsworth’s notary stamp was compromised. Defendants assert that Great American has dealt with multiple fraudulent transfers because of that notary breach.

To summarize, it appears that some unknown person pretended to own the vacant
premises, enticed Silvestri and Lamb to make a purchase offer, then forged Giannone’s signature on the deed utilizing a fake notarization. By pre-signing the deed, the impostor did not have to appear at the clos~g, which proceeded, and resulted in Silvestri and Lamb obtaininged filing a deed to the property. Sometime later, Giannone discovered that someone else was claiming to be the owner of this property, and signed a deed without his knowledge.”

“CPLR § 3016(b) also states that “[ w ]here a cause of action or defense is based upon
misrepresentation, fraud, mistake, wilful default, breach of trust or undue influence, the
circumstances constituting the wrong shall be stated in detail.” Accordingly, it has been
recognized that an action based on fraud is subject to a heightened pleading standard. See, Garza v. Nunz Realty LLC, 187 AD3d 467 (1 st Dept. 2020); Orchard Hotel LLC v. D.A.B. Group LLC, 172 AD3d 530 (1st Dept. 2019). The purpose of the heightened pleading standard is to inform the defendant of the acts giving rise to the claim of fraud. Vague allegations will not be sufficient to sustain a claim for fraud.

However, “section 3016 (b) should not be so strictly interpreted as to prevent an
otherwise valid cause.of action in situations where it may be impossible to state in detail the circumstances constituting a fraud … Thus, where concrete facts are peculiarly within the knowledge of the party charged with the fraud, it would work a potentially unnecessary injustice to dismiss a case at an early stage where any pleading deficiency might be cured later in the proceedings” Pludeman v. Northern Leasing Sys., Inc., 10 NY3d 486, 491-492 (2008) (internal quotation marks, citations and end citations omitted); see, Neptune Issue Inc. Profit Sharing Plan v. Eliopoulos, 242 AD3d 1474 (3rd Dept. 2025).

In the instant matter, while all three motions are correct that Silvestri and Lamb have not provided much detail as to the alleged fraud committed by any of the Third-Party Defendants, the Court concludes that the flaw does not require dismissal. The underlying premise of the Defendants’ claims is that they were duped into signing a contract to purchase property from a fraudster, who ultimately did not actually own the property. Defendants were misled into believing they were dealing with a person who had a legal right to convey the property. Plaintiff claims to be unaware of who falsely posed as owner of the property; Silvestri and Lamb did not ever meet the person who signed the deed to them, nor do they have any information concerning that person or how they came to be involved in this transaction. Since the identity of the impostor was concealed from Silvestri and Lamb, and they were unaware that the person from
whom they were purchasing the land did not really own it, it is understandable, and unavoidable, that Defendants would not be able to provide particularity. They do not have details of how this occurred; if they knew, they might have been able to avoid the scam in the first place. On the other hand, other parties, including the proposed Third-Party Defendants would more likely be in possession of the facts concerning the alleged fraud, or how it occurred. Ultimately, it may be that the unidentified fraudster is the only culpable party and concealed all pertinent facts from everyone, but Silvestri and Lamb should at least be able to conduct discovery to determine the role, if any, of other parties in the transaction, or any details that could shed light on how the fraud occurred. If appropriate, Silvestri and Lamb may need to amend their Third- Party
Complaint and/or file a Bill of Particulars to reflect any information that comes to light during discovery. Furthermore, a motion, or motions, for summary judgment can be made in the future depending on what facts are revealed during discovery. Therefore, the Court will not dismiss the fraud claim on the basis that it has not been set forth with particularity.· That determination only addresses the heightened pleading aspect, but the Third-Party Defendants have also raised other grounds for dismissal of the fraud claim.”

Judicial estoppel is an equitable doctrine which prevents a litigant from taking a position which is inconsistent with the position it previously took in earlier litigation. Another phrase might be “flip-flopping.”

In Lending Assets, LLC v Gerbi 2026 NY Slip Op 00472 Decided on February 03, 2026
Appellate Division, First Department defendants were able to invoke this principle.

“Supreme Court properly dismissed this action, as the documentary evidence submitted by defendants in support of their motion to dismiss utterly refutes an essential element of plaintiff’s legal malpractice claims — specifically, that defendants had a nondelegable duty to obtain valid title policies and ensure that certain mortgages were recorded in first lien positions (see Mill Fin., LLC v Gillett, 122 AD3d 98, 103 [1st Dept 2014]). Indeed, plaintiff admitted in a complaint in another action that it believed a third party had the duties that plaintiff ascribes to defendants in this complaint, that it relied on this belief to its detriment, and that this reliance led to damages. Thus, negligence, an essential element of a legal malpractice claim, has been “utterly refute[d]” because the allegations in the other complaint amount to a concession that the duties underlying plaintiff’s legal malpractice cause of action are not, in fact, attributable to defendants (CPLR 3211[a][1]; see Excelsior Capital LLC v K&L Gates LLP, 138 AD3d 492, 492 [1st Dept 2016], lv denied 28 NY3d 906 [2016]; see also Yassky v Meltzer, Lippe, Goldstein & Schlissel, P.C., 36 AD3d 420, 421 [1st Dept 2007]). Furthermore, these judicial admissions constitute admissible documentary evidence for purposes of defendants’ motion to dismiss (see New Greenwich Litig. Trustee, LLC v Citco Fund Servs. [Europe] B.V., 145 AD3d 16, 25 [1st Dept 2016], lv denied 29 NY3d 917 [2017]).”

It is our anecdotal experience that legal malpractice cases suffer a higher percentage of dismissals at the CPLR 3211 stage than do other types of claims, including medical malpractice. Park W. Exec. Servs., Inc. v Gallo Vitucci & Klar, LLP 2026 NY Slip Op 00428
Decided on January 29, 2026 Appellate Division, First Department is a case lost on a CPLR 3211 motion and reversed on appeal.

This legal malpractice action arises from an underlying personal injury action in which defendants represented Park West Executive Services, a company that furnishes taxi and limousine drivers to customers in need of transportation. The underlying action involved a motor vehicle accident in which the driver of one of the vehicles, nonparty Margaret Rivera, had an independent contractor contract with Park West to offer driving services to customers secured by Park West. The driver of the second vehicle involved in the accident commenced the underlying personal injury action against Park West, Rivera, and the owner of the vehicle that was leased to Rivera. In that underlying action, defendants conceded that Rivera was Park West’s employee. A settlement was reached in the underlying action and, shortly thereafter, plaintiffs commenced this action for legal malpractice.

The motion court improperly held that plaintiffs failed to state a cause of action for legal malpractice against defendants. To state a claim for legal malpractice, a “plaintiff must show that (1) the attorney was negligent; (2) the attorney’s negligence was a proximate cause of plaintiff’s losses; and (3) plaintiff suffered actual damages” (Springs v L&D Law P.C., 234 AD3d 422, 423 [1st Dept 2025]). Moreover, 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” (83 Willow LLC v Apollo, 187 AD3d 563, 563 [1st Dept 2020] [internal citation omitted]).

Here, plaintiffs argue that but for defendants’ negligence in waiving Park West’s independent contractor defense in the underlying action, without their consent and without disclosing conflicts in their representation of several defendants in the action, they would not have been compelled to settle the action, and they would not have been held vicariously liable for Rivera’s negligence. To prevail on its malpractice claim, plaintiffs will ultimately have to prove proximate cause. The discovery in the underlying personal injury action raised factual issues as to whether Park West controlled the means and methods of Rivera’s work (see Goodwin v Comcast Corp., 42 AD3d 322, 322 [1st Dept 2007]), regardless of the existence of the independent contractor agreement between Rivera and Park West (see Edwards v Rosario, 166 AD3d 453 [1st Dept 2018]; Cross v Supersonic Motor Messenger Courier, Inc., 140 AD3d 503, 504 [1st Dept 2016]), and the motion court or a jury will need to resolve this issue post-discovery. However, at this pre-answer motion to dismiss stage of the litigation, plaintiffs have sufficiently plead a claim for legal malpractice.

Defendants’ argument concerning litigation strategy/professional judgment was raised for the first time on appeal and is therefore unpreserved (see Diarrassouba v Consolidated Edison Co. of N.Y. Inc., 123 AD3d 525, 525 [1st Dept 2014]).”

Beyond that question, when does Melcher v. Greenberg Traurig, LLP, ‘s 6-year statute of limitation apply and when does Farage v. Ehrenberg’s three year statute apply?

In either setting Pergament v Government Employees Ins. Co. (“GEICO”) 2026 NY Slip Op 00267 Decided on January 21, 2026 Appellate Division, Second Department reminds us that only attorneys engaged in deceit, in a litigation setting can be held under Judiciary Law 487.

“In May 2023, the plaintiff, as Chapter 7 Trustee of the estate of Melissa Gace Bryant, moved for leave to amend the complaint to add a new cause of action, alleging that the defendants violated Judiciary Law § 487(1), inter alia, by engaging in deceit and collusion to intentionally mislead Bryant by convincing her to file for bankruptcy in an effort to “wipe out” a judgment in an underlying personal injury action against her to the extent that the amount of the judgment exceeded her available insurance coverage. Additionally, the proposed amendment alleged that this was part of a scheme to avoid any causes of action alleging bad faith and legal malpractice against the defendants and to protect their own interests to the detriment of Bryant. The proposed amendment further alleged that the defendants misled Bryant into rejecting a settlement offer after entry of the underlying judgment that included Bryant assigning over to the injured plaintiff in the underlying action her rights to bring this action against the defendants in exchange for a forbearance of the excess. The defendants opposed the motion. In an order entered November 21, 2023, the Supreme Court granted that branch of the plaintiff’s motion which was for leave to amend the complaint to add a cause of action alleging a violation of Judiciary Law § 487(1) against the defendants Picciano & Scahill, LLP, and Gilbert J. Hardy (hereinafter together the P & S defendants) and the defendants Neil H. Greenberg & Associates, P.C., and Neil H. Greenberg (hereinafter together the Greenberg defendants), and denied that branch of the motion which was for leave to amend the complaint to add a cause of action alleging a violation of Judiciary Law § 487(1) against the defendant Government Employees Insurance Company (“GEICO”) (hereinafter Geico). The P & S defendants and the Greenberg defendants separately appeal, and the plaintiff cross-appeals. We affirm.”

“The Greenberg defendants’ contention that the proposed amendment insofar as asserted against them was patently devoid of merit because it was time-barred by the applicable statute of limitations is improperly raised for the first time on appeal (see Chao v Westchester Med. Ctr. Advanced Physicians Servs., P.C., 131 AD3d 1130; Melendez v City of New York, 271 AD2d 416).

The P & S defendants’ contention that the proposed amendment insofar as asserted against them was patently devoid of merit because it was time-barred by the applicable statute of limitations is without merit. The proposed new cause of action alleging a violation of Judiciary Law § 487(1), which was premised upon the same facts, transactions, or occurrences alleged in the original complaint seeking damages for legal malpractice against the P & S defendants, related back to the date of the original timely complaint (see CPLR 203[f]; see O’Keefe v Barra, 215 AD3d 1039; MBIA Ins. Corp. v J.P. Morgan Sec., LLC, 144 AD3d 635; Cinao v Reers, 27 Misc 3d 195 [Sup Ct, Kings County]).

Contrary to the contentions of the P & S defendants and the Greenberg defendants, “the [proposed] cause of action alleging violation of Judiciary Law § 487 is not duplicative of the cause of action alleging legal malpractice. ‘A violation of Judiciary Law § 487 requires an intent to deceive (see Judiciary Law § 487), whereas a legal malpractice claim is based on negligent conduct'” (Bianco v Law Offs. of Yuri Prakhin, 189 AD3d 1326, 1329, quoting Moormann v Perini & Hoerger, 65 AD3d 1106, 1108; see Bill Birds, Inc. v Stein Law Firm, P.C., 164 AD3d at 637).

Further, under the circumstances presented here, the P & S defendants and the Greenberg defendants failed to demonstrate that they would be surprised or prejudiced by the proposed amendment to the complaint or that the proposed amendment was palpably insufficient or patently devoid of merit (see Flowers v Mombrun, 212 AD3d 713, 714-715; Lauder v Goldhamer, 122 AD3d 908).

Accordingly, the Supreme Court properly granted that branch of the plaintiff’s motion which was for leave to amend the complaint to add a cause of action alleging a violation of Judiciary Law § 487(1) against the P & S defendants and the Greenberg defendants.

Contrary to the plaintiff’s contention, that branch of his motion which was for leave to amend the complaint to add a cause of action alleging a violation of Judiciary Law § 487(1) against Geico was properly denied as patently devoid of merit (see McCluskey v Gabor & Gabor, 61 AD3d 646, 648), because, among other things, the plaintiff did not allege that Geico acted as counsel of record in any legal proceeding to which Bryant was a party (see Bill Birds, Inc. v Stein Law Firm, P.C., 35 NY3d at 177; Pinkesz Mut. Holdings, LLC v Pinkesz, 198 AD3d 693, 697-698; Mazzocchi v Gilbert, 185 AD3d 438).”

“

Will B. Sandler Disclaimer Trust v Swersky 2025 NY Slip Op 05909 [242 AD3d 625]
October 23, 2025 Appellate Division, First Department is a fairly unusual case in which an attorney was in business with a clieint for 30 years or more. When the attorney dieed, his interest in a particular LLC was a bequest to his wife, who rejected the bequest. The LLC interest passed to a “Disclaimer Trust” which then sued the former partner over a $ 3.5 million dollar asset. Counterclaims against the trust fell.

“Nonparty Will B. Sandler was an attorney who entered into a number of business ventures with defendant David M. Swersky over the course of approximately 30 years. In addition to being a co-investor in the ventures, Sandler typically acted as counsel, negotiating and drafting the deal documents. Swersky typically acted as the sole manager and controlling partner of the joint venture. Sandler and Swersky formed defendant S&S 34 Investors LLC as a vehicle through which they would invest in Manhattan real estate. According to the complaint, Sandler received an 8.518% interest in S&S. In 2014, Swersky and Sandler invested in an entity that held an interest in real property located at 460 West 34th Street (2014 transaction).

Sandler died in 2015 and, upon his death, his wife, plaintiff Muriel Sandler, rejected the bequest of Sandler’s interest in S&S, which then passed to plaintiff Will B. Sandler Disclaimer Trust. Muriel is the sole beneficiary of the Trust and she and her two children are its Trustees.

Plaintiffs commenced this action alleging that defendants improperly withheld from plaintiffs $3.5 million in proceeds from Sandler’s interest in S&S and actively concealed this from plaintiffs. Defendants asserted a counterclaim for rescission against plaintiffs, alleging that the 2014 transaction was the product of Sandler’s breach of the New York Rules of Professional Conduct or, alternatively, a breach of Sandler’s fiduciary duty as Swersky’s attorney. Defendants also asserted a counterclaim for legal malpractice against plaintiffs, alleging that Sandler committed legal malpractice through his various errors and intentional acts surrounding the 2014 transaction.

Supreme Court properly granted plaintiffs’ motion to dismiss the counterclaims for failure to state a cause of action as against plaintiffs because plaintiffs are not the proper parties to the counterclaims. Despite being labelled as a claim for rescission, the first counterclaim asserts a claim against plaintiffs for Sandler’s alleged breach of his ethical and fiduciary duty to defendants. This counterclaim is based only on the alleged conduct of Sandler and not on the conduct of plaintiffs. Accordingly, there is no basis to assert the counterclaim against plaintiffs, who did not owe an ethical or fiduciary duty to defendants.

Moreover, rescission is an equitable remedy and a claim for rescission may only be asserted against a person who is a party to the contract (see McGarry v Miller, 158 AD2d 327, 328 [1st Dept 1990] [dismissing rescission cause of action against nonparty to the contract]; Steinberg v Sherman, 2008 WL 2156726, *7, 2008 US Dist LEXIS 37367, *19-21 [SD NY, May 8, 2008, No. 07cv1001 (WHP)]). Here, plaintiffs were not parties to the 2014 transaction.”

Real estate litigation and legal malpractice share a long brotherhood, and Chef Michael Barton Rest., LLC v Wknapp LTD. 2025 NY Slip Op 35003(U) December 23, 2025
Supreme Court, New York County Docket Number: Index No. 654339/2022 Judge: Kathleen Waterman-Marshall is an example of how the lack of privity dooms the claim.

“This action arises out of the sale of a restaurant business. Defendant Wknapp LTD
(“Wknapp”) sold its restaurant business to plaintiff Chef Michael Barton Restaurants LLC
(“Barton Restaurants”) pursuant to an Asset Purchase Agreement (the “ASA”) and a later amended Asset Purchase Agreement (the “Amended ASA”). Mr. Knapp signed both ASAs in his corporate capacity on behalf of Wknapp, and in his individual capacity only “as to his obligations under paragraph 14.” Defendant and second-third party plaintiff Elissa Hecker, Esq. (“Ms. Hecker”) was Barton Restaurants’ attorney in the purchase transaction.
As relevant to this motion, paragraph 14 of the ASA is a non-compete covenant. When
the ASA was amended, the paragraph numbering changed, and paragraph 14 of the ASA was renumbered as paragraph 13 in the Amended ASA. Despite being renumbered as paragraph 13 in the Amended ASA, the non-compete paragraph continued to internally reference itself as paragraph 14. The signature block for Mr. Knapp in both the ASA and Amended ASA stated that he signed in his personal capacity only as to paragraph 14, notwithstanding the change in paragraph numbers.
Barton Restaurants and Michael Barton commenced this action alleging, in sum and
substance, that Mr. Knapp and Wknapp breached the express warranties in the ASA by
misrepresenting the condition of the premises, and that Ms. Hecker committed malpractice by failing to perform the appropriate due diligence to discover publicly available unresolved Department of Building violations related to the premises. By decision and order dated October 11, 2023, the jurist previously assigned to this matter dismissed plaintiffs’ claims against Mr. Knapp, finding that the only portion of the ASA signed in Mr. Knapp’s individual capacity was the covenant not to compete with plaintiffs after the sale.
In December 2024, Ms. Hecker filed the second third-party action against Mr. Knapp,
seeking common law indemnification and contribution from him for any damages the Barton plaintiffs obtain against Ms. Hecker.”

“Ms. Hecker’s second-third party complaint for contribution and indemnification is not
viable because there is no basis to seek contribution or indemnification for legal malpracticefrom Mr. Knapp (see generally, Rivas v Raymond Schwartzberg & Associates, PLLC, 52 AD3d 401 [1st Dept 2008]). Contrary to Ms. Hecker’s argument, neither the ASA nor the Amended ASA require Mr. Knapp to contractually indemnify Ms. Hecker for legal malpractice.
To the extent that Ms. Hecker’s second third-party complaint seeks common law
indemnity, it is likewise unviable because she did not delegate her due diligence responsibility as counsel for Barton Restaurants to Mr. Knapp (Board of Mgrs. of Oliver Park Condominium v Maspeth Props., LLC, 170 AD3d 645, 647 [2d Dept 2019] [party seeking common law indemnification “must have delegated exclusive responsibility… to the party from whom indemnification is sought”]; Desena v North Shore Hebrew Academy, 119 AD3d 631, 635 [2014] [“predicate of common law indemnity is liability without actual fault”] quoting Trustees of Columbia Univ. v Michell/Giurgola Assoc., 109 AD2d 449, 453 [1st Dept 1985]). That Mr. Knapp owes a duty to Ms. Hecker’s former client Barton Restaurant under the non-compete covenant does not transform into a duty owed to Ms. Hecker regarding her due diligence as counsel. Put simply, Mr. Knapp does not share in Ms. Hecker’s responsibility, if any, for plaintiffs’ alleged malpractice loss (Rivas, 52 AD3d at 401).
Contribution is permitted only between parties who are subject to liability for damages
for the same injury (CPLR § 1401). “The critical requirement for apportionment under… CPLR article 14 is that the breach of duty by the contributing party must have had a part in causing or augmenting the injury for which contribution is sought” (Nassau Roofing & Sheet Metal Co. Inc. v Facilities Dev. Corp., 71 NY2d 599 [1988]). As Mr. Knapp has been dismissed from the main party action, as a matter of law he does not share in responsibility for the injuries alleged in the main party action and, therefore, contribution for the main party claims is unavailable (see generally, Gonzales v Jacoby & Meyers, 258 AD2d 560 [2d Dept 1999] [law firm could not seek contribution from third-party for malpractice claim where the third-party was not responsible for the malpractice]).
Therefore, dismissal of the second-third party complaint is also appropriate under CPLR
3211(a)(7).”

Chen v Romona Keveza Collection LLC 2025 NY Slip Op 34953(U) December 16, 2025
Supreme Court, New York County Docket Number: Index No. 153413/2020
Judge: Emily Morales-Minerva

Attorney wants out, client wants him to stay, huge payments and unauthorized use of a corporate credit card notwithstanding.

“Non-party movant Sutton Sachs Meyer PLLC, New York, NY (Zachary G. Meyers, Esq., of counsel), moves, by order to show cause (mot. seq. no. 010), pursuant to CPLR § 321 (bl (2), for an order permitting it to withdraw as attorney of record for defendants ROMONA KEVEZA COLLECTION, LLC, ROMONA KEVEZA ONE ROCK, LLC, ROMONA KEVEZA 1 ROCK, LLC, and ROMONA KEVEZA (defendants) . 1 Plaintiffs JOSEPH CHEN, INC., and DINA KOZLOVSKA (plaintiffs) oppose the application, {l) arguing prejudice and
(2) asserting that non-party Zachary G. Meyers, Esq., of counsel to defendants, has engaged in a “repeated pattern of misconduct and dilatory behaviorn (New York State Courts Electronic Filing System [NYSCEF) Doc. No. 375, affirmation of James E. Murphy in Opposition, ~ 2). Therefore, plaintiffs move for sanctions against non-party movant Sutton Sachs Meyer PLLC, New York, NY (Zachary G. Meyers, Esq., of counsel) and/or Zachary G. Meyers, Esq., individually (see id.; see also Uniform Civil Rules for Supreme Court [22 NYCRR] § 130-1.1 [c] [2] [Costs;sanctions])”

“On record, Zachary G. Meyers stated that the attorneyclient relationship between non-party law firm and defendants is irretrievably broken. In support of this contention, Zachary G. Meyers stated that Romana Keveza threatened to file a legal malpractice action against him and that she threatened to report Zachary G. Meyers to the bar, among other things.

Romona Keveza countered, under oath, that she never made such threats and that Zachary G. Meyers’s statements are completely false. Romona Keveza affirmed that she did not know how to reach the bar, and that she was completely surprised by the allegations her counsel was making against her. Further, Romona Keveza expressed wanting Zachary G. Meyers to continue to represent her and defendants Romana Keveza Collection, LLC, Romona Keveza One Rock, LLC, and Romona Keveza 1 Rock, LLC.”

In response, Zachary G. Meyers explicitly stated that his client was lying to the Court, insisting that she did threaten him with a legal malpractice action and challenging other
statements Romona Keveza made on the record as untrue. Romona Keveza asserted, under oath, that, among other things, Zachary G. Meyers charged at or around $180,000.00 to her corporate credit card without her permission, and that she
has paid him substantially for his services. Romona Keveza continued to express shock at how counsel characterized her. Still, Romona Keveza expressed hope of not having to engage new counsel and of having this Court deny non-party’s application.

An attorney may withdraw as counsel upon a showing of good and sufficient cause, and reasonable notice (see CPLR § 321 [b] [2]; see also Bok v Werner, 9 AD3d 318 [1st Dept
2004]). “Good cause exists [for counsel] to end [their] relationship with [a] client [when there is an] irretrievable breakdown in the relationship or a failure of cooperation by the
client” (Matter of Cassini, 182 AD3d 13, 40 [2d Dept 2020]; see also Raff & Becker LLP v Kaiser Saurborn & Mair, P.C., 160 AD3d 479 (1st Dept 2018]). The question of whether good cause exists lies within the sound discretion of the court (see Rivadeneria v
New York City Health & Hosps. Corp., 306 AD2d 394 [2d Dept 2003]).”

“Here, counsel Zachary G. Meyers and his client Romona Keveza make serious statements against each other, advancing materially different versions of the facts underlying nonparty’s motion for withdrawal. This circumstance presents a clear question of credibility. However, no genuine question exists that their attorney-client relationship has irreparably broken down.
Therefore, the Court exercises its discretion to grant the subject motion, permitting non-party Sutton Sachs Meyer PLLC to withdraw, and staying this action to provide defendants an opportunity to obtain new counsel.”