Shaikh v Davis 2026 NY Slip Op 31320(U) April 1, 2026 Supreme Court, New York County Docket Number: Index No. 100809/2025 Judge: Hasa A. Kingo presents the question of what happens if a CPLR 3211 motion is made after an answer.

“Plaintiff Zia H. Shaikh (pro se) commenced this legal malpractice action on August 1,

The complaint names Jeffrey Davis and his law office (the “Davis Defendants”) among
others, and includes multiple causes of action arising out of the Davis Defendants’ representation of plaintiff in an underlying estate litigation (Index No. 158656/2017). The summons was served on the Davis Defendants on August 1, 2025. On August 26, 2025, the Davis Defendants served a notice of motion (dated August 26, 2025) to dismiss the Second, Third and Fifth causes of action under CPLR §§ 3211(a)(1) and (7) failure to state a claim and lack of jurisdictional defense), and for summary judgment under CPLR § 3212. The motion was returnable December 2, 2025. Thereafter, on October 1, 2025, the Davis Defendants served a verified answer to the complaint,
joining issue. Plaintiff timely opposed the motion, asserting among other things that the pre-answer motion is moot once the answer has been served.

Defendants contend that each challenged cause of action fails to state a claim. They argue that, even under liberal pleading standards, plaintiff’s Second, Third and Fifth causes are legally defective and duplicative of the malpractice claim. Defendants rely on CPLR § 3211(a)(7) (dismissal for failure to state a cause) and invoke CPLR § 3211(a)(1) to the extent the allegations are flatly contradicted by undisputed documentary evidence. They also assert that their motion istimely and that, because it was filed after service of the summons, CPLR § 3211(f) extended their time to answer (and was preserved by the answer), but even if not, the court may treat the motion on the merits. They further contend that the verified complaint, despite being lengthy, alleges no separate cognizable duty beyond general legal malpractice, so that any contract, fiduciary or fraud claims must be dismissed as duplicative. Defendants also seek summary judgment (CPLR § 3212), arguing that the complaint is based solely on conclusory allegations and that plaintiff cannot prove her damages or causation.”

“Under New York law, a complaint that asserts a legal malpractice claim may not be
accompanied by independent claims that duplicate the malpractice cause. As the Appellate Division, First Department, has held, a breach of contract or fiduciary duty cause that alleges no additional facts beyond those underlying the malpractice claim is duplicative and must be dismissed (Sage Realty Corp. v. Proskauer Rose, 251 AD2d 35, 38 [1st Dept 1998]; Cohen v. Kachroo, 115 AD3d 512, 513–14 [1st Dept 2014]). Similarly, a claim that an attorney violated professional conduct rules or fiduciary obligations does not, without more, give rise to a separate cause of action (Cohen v. Kachroo, 115 AD3d 512, 513–14 [1st Dept 2014]). In Cohen v. Kachroo, for example, the Appellate Division, First Department, affirmed dismissal of a breach-offiduciary-duty cause as duplicative of the malpractice count because it alleged no new facts or damages; the court likewise held that mere violations of the disciplinary rules cannot independently sustain a malpractice claim (id.). In Sage Realty Corp. v. Proskauer Rose, the Appellate Division, First Department, similarly upheld the dismissal of contract and fraud claims as redundant of a malpractice claim arising from the same attorney conduct (251 AD2d at 38). Applying these principles, the Second, Third and Fifth causes of action here – all of which arise from the same underlying conduct (the Davis Defendants’ representation in the estate litigation) – cannot stand independently. Plaintiff’s detailed affidavit (Complaint ¶¶7–9) admits that defendants owed the conventional duty of care as her lawyers, and that any breach, causation and damages would be for legal malpractice. Any breach-of-contract claim (e.g. for failure to perform services) or fraud/misrepresentation claim based on those same allegations is subsumed. Likewise, to the extent any Fifth cause asserts a fiduciary violation or professional ethics breach,
it duplicates the malpractice count. As in Cohen v. Kachroo, plaintiff’s fiduciary duty claim “alleged no new facts and sought the same damages” as her malpractice claim, and thus must be dismissed. In short, accepting the pleaded facts as true, the Second, Third and Fifth causes of action fail to state an independent claim. defendants are entitled to dismissal of those claims under CPLR §c3211(a)(7) as duplicative of the malpractice cause.

Defendants’ summary judgment motion, however, cannot be granted. Under CPLR § 3212, the moving party must establish entitlement to judgment as a matter of law by submitting admissible evidence eliminating any triable issue (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). Here defendants submitted no affidavits or admissible proof tending to negate plaintiff’s claims. Nor did they produce any documentary evidence decisively contradicting the complaint (the email exhibits filed by plaintiff are not disputed on this motion). On the contrary, plaintiff’s verified complaint and supporting affirmation may be treated as evidence under CPLR § 105(u) and Rovello v. Orofino, 40 NY2d 633 (1976). In these circumstances, summary judgment must be
denied, because plaintiff has raised factual questions (for example, whether but for defendants’ conduct plaintiff would have obtained a more favorable outcome, and the nature and amount of plaintiff’s damages) that can only be resolved at trial. It is black letter law that issues of credibility or weight of evidence are to be resolved by the trier of fact, not on a motion to dismiss or for summary judgment.

As such, defendants’ motion to dismiss and for summary judgment is granted in part and denied in part. Consistent with the foregoing, the Second, Third and Fifth causes of action are dismissed pursuant to CPLR § 3211(a)(7) as duplicative of the legal malpractice claim (the First and any other causes not challenged survive). In all other respects, defendants’ motion is denied. Because plaintiff’s allegations must be accepted as true at this stage, the remaining malpractice cause may proceed. No further relief is granted.”

Aberbach-Marolda v Cherner 2026 NY Slip Op 02089 April 8, 2026 Appellate Division, Second Department is a real curiosity. A star appellate team for Defendant-Appellant, appealing from a negative outcome at a very rare legal malpractice trial and what seems to be an uninsured attorney Plainitff. Much seems to turn on evidentiary missteps prior to trial.

“In an action, inter alia, to recover damages for breach of contract, the defendant appeals from a judgment of the Supreme Court, Westchester County (William J. Giacomo, J.), dated August 13, 2019. The judgment, (1) upon an order of the same court (Joan B. Lefkowitz, J.) dated April 30, 2018, inter alia, denying those branches of the defendant’s motion which were to compel the plaintiff Susanne Aberbach-Marolda to provide authorizations for Internet providers to release certain emails, to pay the fees and costs associated with her deposition, to provide a sworn statement detailing all claims made on her malpractice insurance policy over a certain period of time, and to produce certain bank and telephone records, granting that branch of the defendant’s motion which was to compel the plaintiff Susanne Aberbach-Marolda to appear for a new deposition only to the extent of directing her to appear for a deposition limited to certain lines of inquiry, and granting that branch of the motion of the plaintiff Susanne Aberbach-Marolda and Doris T. Friedman which was to preclude the defendant from introducing at trial video recordings of the deposition of the plaintiff Susanne Aberbach-Marolda, (2) upon an order of the same court (Joan B. Lefkowitz, J.) dated December 17, 2018, inter alia, denying those branches of the defendant’s motion which were to compel the plaintiff Susanne-Aberbach Marolda to provide authorizations for Internet providers to release certain emails, to appear for a new deposition and to pay the fees and costs associated with her deposition, to provide a sworn statement detailing all claims made on her malpractice insurance policy over a certain period of time, and to produce certain telephone records, (3) upon an order of the same court (Joan B. Lefkowitz, J.) dated March 6, 2019, denying the defendant’s motion to vacate the note of issue and trial readiness order, and (4) upon a jury verdict, is in favor of the plaintiff Susanne Aberbach-Marolda and against the defendant in the principal sum of $56,148.98 and, in effect, dismissed the defendant’s counterclaims. Justice Ford has been substituted for former Justice Zayas (see 22 NYCRR 1250.1[b]).”

“This appeal stems from a fee dispute. In September 2013, the defendant retained the plaintiff Susanne Aberbach-Marolda to represent him in a matrimonial action. At the same time, with the knowledge and consent of the defendant, Doris T. Friedman became of counsel to Aberbach-Marolda on the matrimonial action. The representation of the defendant by Aberbach-Marolda and Friedman included a multiday nonjury trial on the issues of equitable distribution and culminated in a judgment of divorce entered January 21, 2016 (see Ospina-Cherner v Cherner, 178 AD3d 1059). In June 2016, Aberbach-Marolda and Friedman commenced this action against the defendant, inter alia, to recover damages for breach of contract, alleging that the defendant had not paid the majority of his attorneys’ fees. The defendant interposed an answer containing 35 counterclaims, including counterclaims to recover damages for legal malpractice.

After court conferences were conducted in October and December 2017, the defendant moved, among other things, to compel Aberbach-Marolda to provide authorizations for Internet providers to release certain emails, to appear for a new deposition and to pay the fees and costs associated with her deposition, to provide a sworn statement detailing all claims made on her malpractice insurance policy over a certain period of time, and to produce certain bank and telephone records. Aberbach-Marolda and Friedman moved, inter alia, to preclude the defendant from introducing at trial video recordings of Aberbach-Marolda’s deposition. In an order dated April 30, 2018, the Supreme Court, among other things, granted that branch of the motion of Aberbach-Marolda and Friedman which was to preclude the defendant from introducing at trial video recordings of Aberbach-Marolda’s deposition, granted that branch of the defendant’s motion which was to compel Aberbach-Marolda to appear for a new deposition to the extent of directing her to appear for a deposition limited to certain lines of inquiry, and denied those branches of the defendant’s motion which were to compel Aberbach-Marolda to provide authorizations for Internet providers to release certain emails, to pay the fees and costs associated with her deposition, to provide a sworn statement detailing all claims made on her malpractice insurance policy over a certain period of time, and to produce certain bank and telephone records.”

“The Supreme Court providently exercised its discretion in granting that branch of the defendant’s motion which was to compel Aberbach-Marolda to appear for a new deposition only to the extent of directing her to appear for a new deposition on 12 specific lines of inquiry. To the extent that the defendant requested an additional deposition beyond what was directed, his request was without merit. Further, the court did not improvidently exercise its discretion in denying that branch of the defendant’s motion which was to compel Aberbach-Marolda pay the fees and costs associated with her first deposition, as she neither left the deposition early nor refused to answer clear questions (cf. O’Neill v Ho, 28 AD3d 626).

Furthermore, the Supreme Court did not err in granting that branch of the motion of Aberbach-Marolda and Friedman which was to preclude the defendant from introducing at trial video recordings of Aberbach-Marolda’s deposition. Pursuant to a compliance conference order dated December 20, 2017, Aberbach-Marolda’s deposition was scheduled to be conducted in New York on February 2, 2018, and pursuant to a stipulation of the parties, if Aberbach-Marolda’s deposition continued after that date, it would be continued by video while she was in South Carolina. One day prior to Aberbach-Marolda’s deposition in New York, the defendant’s attorneys sent a fax to Aberbach-Marolda confirming that the deposition would be videotaped, without including any information regarding the videotape operator. Aberbach-Marolda and Friedman objected to the video deposition but ultimately participated.

Section 202.15 of the Uniform Rules for the New York State Trial Courts requires that “[e]very notice or subpoena for the taking of a videotaped deposition shall state that it is to be videotaped and the name and address of the videotape operator and of the operator’s employers, if any” (22 NYCRR 202.15[c]). CPLR 3107 requires a party desiring to take the deposition of another person to give each party 20 days’ notice. The interplay between 22 NYCRR 202.15(c) and CPLR 3107 requires that a videotaped deposition must be properly noticed at least 20 days prior. As the

defendant’s deposition notice was procedurally improper, the Supreme Court did not err in precluding the introduction at trial of video recordings of Aberbach-Marolda’s deposition (see id. § 3103[c]).”

“The Supreme Court providently exercised its discretion in denying that branch of the defendant’s motion which was to compel Aberbach-Marolda to provide a sworn statement detailing all claims made on her malpractice insurance policy during the time that she represented him. Such a statement would have no probative value in this case, where it is undisputed that Aberbach-Marolda’s malpractice insurance policy lapsed in September 2014, well prior to the defendant’s claims.

The Supreme Court also providently exercised its discretion in denying that branch of the defendant’s motion which was to compel Aberbach-Marolda to produce certain bank and telephone records. The defendant does not deny that Aberbach-Marolda and Friedman had produced documents in response to his request for bank records, and there is no indication in the record that there were any requests outstanding in this regard. As for Aberbach-Marolda’s telephone records, the defendant’s motion provided little explanation as to why these records are relevant to his case. Under the circumstances, where the court was “actively involved in managing the case and [was] intimately familiar with the particularities of the matter,” there is no basis in this record to disturb the determination that the defendant’s request for Aberbach-Marolda’s telephone records amounted to nothing more than a fishing expedition (Auerbach v Klein, 30 AD3d 451, 452).”

Link Motion Inc. v DLA Piper LLP (us) 2026 NY Slip Op 02066 April 7, 2026

Appellate Division, First Department is a short distillation of how a legal malpractice clame can go wrong. Here, it ended in dismissal, attorney-fee sanction and the award of $ 482,390 to DLA Piper.

“Judgment, Supreme Court, New York County (Andrew Borrok, J.), entered June 16, 2025, awarding defendant DLA Piper LLP (US) sanctions and attorneys’ fees in the amount of $482,390.56, plus interest, against plaintiff Link Motion Inc. and nonparty-appellants Felicello Law P.C., Rosanne Felicello, and Michael Maloney, unanimously affirmed, with costs. Appeals from order, same court and Justice, entered on or about February 19, 2025, dismissing the amended complaint and awarding defendants sanctions, including their reasonable attorneys’ fees incurred in defending the action, and from supplemental order, same court and Justice, entered on or about March 11, 2025, clarifying the February 19, 2025 order and referring the matter for a hearing to determine the amount of attorneys’ fees to be awarded, unanimously dismissed, without costs, as subsumed in the judgment.

The court correctly found that the record of the communications between DLA and plaintiff concerning DLA’s limited representation of plaintiff in the first stage of a federal derivative action clearly established that plaintiff was on notice that DLA’s representation in that action ended as of January 21, 2019. That was the day that plaintiff told DLA it could not pay DLA, in response to DLA’s message from a day earlier requesting consent to withdraw from representation if plaintiff could not pay it to go forward. These communications to and from plaintiff refute any allegations to the contrary, as well as the allegations that the legal representation continued after that date until at least February 4, 2019 (see Shumsky v Eisenstein, 96 NY2d 164, 171 [2001] [“even when further representation concerning the specific matter in which the attorney allegedly committed the complained of malpractice is needed and contemplated by the client, the continuous representation toll would nonetheless end once the client is informed or otherwise put on notice of the attorney’s withdrawal from representation”]; Walsh v Wallace Law Off., 203 AD3d 684, 685 [1st Dept 2022]). In the absence of a “continuous representation toll,” the claim was untimely filed, even if the COVID toll were to apply.

The action was, in any event, properly dismissed for failure to state a cause of action. The record of the communications described above between DLA and plaintiff concerning the former’s representation in the federal case forecloses the possibility that plaintiff could show, or that Felicello Law could in good faith have believed, that DLA’s conduct in that matter breached a duty to provide competent legal services.

The court correctly awarded sanctions pursuant to 22 NYCRR 130-1.1 against plaintiff and Felicello Law for the assertion of the same frivolous legal malpractice claim that resulted in Rule 11 sanctions in the mirror image federal malpractice action. The record establishes that certain allegations in the complaint were false and that plaintiff and its counsel had no possibility of proving, nor any good faith basis for believing, that DLA acted negligently in its representation (see Kyowa Seni, Co., Ltd. v ANA Aircraft Technics, Co., Ltd., 239 AD3d 413, 414 [1st Dept 2025]). Furthermore, the court providently exercised its discretion in determining, based on the evidence submitted at the fee hearing, the reasonable amount of attorneys’ fees and disbursements incurred by DLA in defending the litigation (see e.g. Sprecase v Tenreiro, 216 AD3d 499 [1st Dept 2023], lv dismissed 40 NY3d 1090 [2024])”

North Flats LLC v Belkin Burden Goldman, LLP 2026 NY Slip Op 01165 Decided on March 03, 2026 Appellate Division, First Department is an example of where the defenses of insufficient expert causation evidence coupled with “intervening cause” entitle defendant to summary judgment.

“The court properly dismissed plaintiff’s claim for legal malpractice because defendant established prima facie entitlement to summary judgment by submitting the affirmation of an expert who opined that plaintiff did not have a claim for legal malpractice because its decision to rely on the sworn certification of plaintiff’s architect was reasonable under the circumstances, that withdrawal of the Certification of Article 7-B Compliance was not feasible, and that an application to extend the deadline for compliance would have been futile (see Global Bus. Inst. v Rivkin Radler LLP, 101 AD3d 651, 651 [1st Dept 2012]; see also North Flats LLC v Belkin Burden Goldman, LLP, 217 AD3d 427, 427-428 [1st Dept 2023]). Plaintiff failed to raise an issue of fact because its expert’s affidavit identified “no more than an error of judgment,” which “does not rise to the level of malpractice” (Rosner v Paley, 65 NY2d 736, 738 [1985]). Further, plaintiff chose to waive the rent arrears from several tenants. This demonstrates “an intervening cause . . . responsible” for plaintiff’s alleged injury (see Brooks v Lewin, 21 AD3d 731, 734 [1st Dept 2005], lv denied 6 NY3d 713 [2006]). To the extent that plaintiff claims damages “in the form of fees . . . incur[red] by substitute counsel, [plaintiff] would have incurred such fees whether [it] was represented by defendant[] or other counsel” (Cohen v Kachroo, 115 AD3d 512, 513 [1st Dept 2014]).”

It’s a puzzling set of facts, and as enunciated by the Court, it seems that the two sons running a liquor store signed papers selling the store and the building when they had no authority to do so. Was the buyer’s attorney potentially liable to the owner?

Adel Wine & Liqs., Inc. v Randy’s 925 Corp. 2026 NY Slip Op 31054(U) March 19, 2026
Supreme Court, New York County Docket Number: Index No. 659194/2025 Judge: Lyle E. Frank says the answer is no.

“The complaint alleges that plaintiff, a New York corporation, located at 925 Columbus
Avenue, New York, New York, is owned and operated by Adelaida Melendez “Melendez”), and Melendez was the sole shareholder, director and officer of the corporation. Further, Melendez is the sole shareholder, director and president of M Brothers Inc. the entity which owns the building where plaintiff is located.

Since approximately September 2016, Melendez had relied upon her sons Javier Melendez and Alberto Melendez to operate Adel Wines and since about September 2022 has lived at an assisted living facility. Plaintiff alleges that Melendez was approached by two unknown visitors, her son Alberto Melendez was also present, and that defendant Dunnington, through attorney Swetnick, provided documents to Melendez without explaining the contents of the documents and asked Melendez to sign the documents. Melendez did not learn until 2025, that the unknown visitor that provided the documents to her was Swetnick.

The complaint further alleges that the documents were for the sale of the business and
transfer of a liquor license rather than a lease.”

“The complaint asserts six causes of action, however only one cause of action is asserted against Dunnington, sounding in legal malpractice. During oral argument, plaintiff’s counsel urged the Court to review the complaint with the implication that although not framed as such, the complaint contains sufficient allegations of fraud as against Dunnington if the Court were to deem the legal malpractice cause of action insufficient.
“In order to state a cause of action for legal malpractice, the complaint must set forth
three elements: the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and actual damages” (Mamoon v Dot Net Inc., 135 AD3d 656, 658 [1st Dept 2016] internal citations omitted). Additionally, “absent an attorney-client relationship, a cause of action for legal malpractice cannot be stated” (Fed. Ins. Co. v N. Am. Specialty Ins. Co., 47 AD3d 52, 59 [1st Dept 2007]).”

“The complaint repeatedly alleges that the unknown visitors, later identified as Glass and Swetnick, did not speak to Melendez, nor made any statements regarding the content of the documents, therefore there were no fraudulent statements made to induce Melendez into signing the documents. The complaint offers no factual basis as
to why Melendez believed that the documents were for a lease rather than a sale.
Further, the allegation of legal malpractice is also insufficient as it is undisputed that
defendant was not counsel for plaintiff, therefore no attorney client relatio nship exists to support a legal malpractice claim. Because the Court finds that the complaint fails to state a cause of action as against Dunnington the Court will not reach the movants arguments with respect to documentary evidence and lack of a necessary party.”

Dixie v Scheer 2025 NY Slip Op 30167(U) January 11, 2025 Supreme Court, New York County Docket Number: Index No. 654690/2022 Judge: Andrea Masley is a chronocal of how an investment can be completely undermined by mergers and sales of assets so that the investment is completely lost. Were the attorneys a cause, is a derivitive claim possible and are they liable?

“Plaintiff Dino Dixie brings this action individually and derivatively on behalf of New Amsterdam Distributors, LLC (NAO) and Terriodiol Ohio LLC (TO). Dixie alleges that he was a founding member of NAO, which through NYCI Holding, LLC (NYCI) owned a 50% interest in nonparty NYCANNA LLC. (NYSCEF 1, Complaint 2, 20, 28.) NAO is the sole shareholder of NYCI. (Id. ,i 28.) Dixie’s ownership interest in NAO is 13%. (Id. ,i 2.)
In May 2015, NAO and nonparty EPMMNY, LLC discussed the formation of a partnership to jointly pursue a medical cannabis license. 2 (Id. ,i 9.) NAO retained defendants Sheer and BSK to provide legal services, including the formation of NYCANNA for the purpose of pursuing the license. (Id. ,i 10.) Upon NYCANNA’s formation, Scheer and BSK “simultaneously became attorneys for NAO, NYCI, and NYCANNA.” (Id.)

On November 20, 2016, Scheer sent NAD’s principals notice that NYCANNA was merging with nonparty NY Medicinal Research and Caring, LLC (NYMRC) to assist with financing. (Id. ,i 13.) NYMRC was owned by nonparty High Street Capital Partners (High Street). (Id.) High Street is Acreage’s predecessor. 3 This merger allegedly diluted Dixie’s equity interest as it substantially divested NAD’s members of their ownership interests. (Id. ,i 14.) Specifically, Dixie alleges that Scheer and BSK conspired with the incoming investors, including NYMRC, NYCI, and Acreage, to divest NAO of its interest in NYCANNA. (Id.)

In May 2017, the New York State Department of Health awarded a medical marijuana license to NY CAN NA. (Id. ,i 16.) Thereafter, Scheer introduced Dixie to Dai no, who had an existing relationship with Scheer. (Id. ,i 17.) At Scheer’s recommendation, Daina became a member and manager of NAO despite not having experience in the industry. (Id.) Dixie alleges he was sidelined as Scheer and Daino essentially took over NAO. (Id. ,i 19.)
“In May 2018, NYCI sold its fifty percent interest in NYCANNA to High Street.” (Id. ,i 20.) Dixie alleges that Scheer structured the transaction so that High Street/Acreage acquired all of NYCANNA’s equity. (Id.) NAD’s officers, including Dixie were removed as NYCANNA’s management, leaving it a mere shell company. (Id.) This transaction came about after Daina met with representatives from High Street. After this meeting, Daina informed Dixie “that there was going to be a $2 million cash call, and that if he did not meet the call by investing the necessary cash, his percentage ownership in NYCANNA would be reduced.” (Id. ,i 22.) Daino then presented an alternative to the cash call – selling NYCANNA to High Street/Acreage Holdings. (Id. ,i 23.) “Daina said that the transaction needed to be approved by the NYCANNA shareholders within 8 hours” and represented that the value of the “transaction would be approximately $40 million based on the stock valuation.” (Id.) The consideration for the sale of NYCl’s interest in NYCANNA to High Street/Acreage was cash and stock in Acreage. (Id. ,i 20 [NYCI sold its in interest “in exchange for cash and class D units of High Street”].)
Dixie alleges that Scheer violated his fiduciary duty to the NAO members by falsely advising that the transaction was favorable to NYCANNA, NYCI and NAO, and immediate approval was necessary, depriving them “of the opportunity to conduct a
proper due diligence investigation of the proposed transaction.” (Id. ,I 25.) Dixie and
the other NAO members approved the transaction based upon Daina and Scheer’s
representations. (Id.)”

“Scheer and BSK assert that this cause of action is time barred as any claim in connection with the alleged delay in the transfer of Acreage stock accrued on May 15,There is a dispute whether the three- or six-year statute of limitations applies.”

“A three-year statute of limitations applies where a plaintiff “seeks purely monetary relief, not equitable relief for which an award of monetary damages would not be adequate.” (VA Mgt., LP v Estate of Valvani, 192 AD3d 615, 615 [1st Dept 2021 ]. ) Where a plaintiff uses “the term ‘disgorgement’ instead of other equally applicable terms such as repayment, recoupment, refund, or reimbursement,” it “should not be permitted to distort the nature of the claim so as to expand the applicable limitations period from three years to six.” (Access Point Med., LLC v Mandell, 106 AD3d 40, 44 [1st Dept 2013]; see also VA Mgt., LP, 192 AD3d at 615 [stating that “[p]laintiff’s characterization of that relief as ‘disgorgement’ of [defendant’s] compensation does not convert it into a claim for equitable relief to which the six-year statute of limitations would apply” (citations omitted)].):”

“Here, there is one alleged tortious actScheer’s delay in transferring the stock to Dixie – which first occurred at the end of the lockup on May 15, 2019. “The doctrine is inapplicable where there is one tortious act complained of since the cause of action accrues in those cases at the time that the wrongful act first injured plaintiff and it does not change as a result of ‘continuing consequential damages.”‘ (Id. [citations omitted].) Although the single alleged action of delay may have caused a continuing increase in damages, the continuing wrong doctrine does not apply. (Id. at 601-602 [“where a plaintiff asserts a single breach-with damages increasing as the breach continued-the continuing wrong theory does not apply” (citations omitted)].) The claim to the extent it is based on defendants’ alleged failure “to diligently pursue the necessary process for transferring Acreage shares from NYCI to Dixie and other individual members of NAO once the NYCI Board of Managers authorized it” is dismissed. (NYSCEF 1, Complaint ,i 65)
Scheer and BSK do not address the timeliness of this claim to the extent it is based on their alleged “erroneous tax advice regarding the purported tax consequences of transferring the Acreage stock into their own individual names.” (NYSCEF 1, Complaint ,i 66.) Thus, the claim to the extent it is based on this alleged conduct is sustained.”

Seibel v Scarola Zubatov Schaffin PLLC 2025 NY Slip Op 00067 [234 AD3d 457]
January 7, 2025 Appellate Division, First Department answers a murky question: How can a law firm set up an exit strategy in its retainer agreement and keep the fees already paid?

Order, Supreme Court, New York County (Jennifer G. Schecter, J.), entered on or about August 31, 2023, which, to the extent appealed from as limited by the briefs, granted defendant Scarola Zubatov Schaffzin PLLC’s (SZS) motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

The court properly granted defendant’s motion for summary judgment dismissing the complaint for legal malpractice and breach of contract. Contrary to plaintiffs’ contention, the affidavit by defendant law firm managing member, Richard Scarola, was admissible. Scarola’s statements, recounting what Steven Bennett, now deceased, one of the attorneys assigned to plaintiffs’ case, told him, were not offered for the truth of the matters asserted, but for the effect those statements had on Scarola’s state of mind, specifically on why he decided that SZS should discontinue its representation of plaintiffs Rowen Seibel and the Seibel-related entities (see Matter of Bergstein v Board of Educ., Union Free School Dist. No. 1 of Towns of Ossining, New Castle & Yorktown, 34 NY2d 318, 323-324 [1974]). The affidavit of Daniel Brooks, the other attorney assigned to plaintiffs’ matter, was admissible based on his personal knowledge of the facts stated therein. Also contrary to plaintiffs’ contention, the Brooks affidavit did not require the attachment of SZS’s billing statements, as Seibel not only failed to object to the billing statements, but admittedly paid the fees (see Aronson Mayefsky & Sloan, LLP v Praeger, 228 AD3d 182, 185 [1st Dept 2024]). In fact, Seibel did not object to the fees until the instant action; such belated protest is insufficient to defeat summary judgment (see Mintz & Gold LLP v Daibes, 125 AD3d 488, 489 [1st Dept 2015]).

SZS was properly granted summary judgment based on Seibel’s breach of the parties’ retainer agreement (see Markov v Katt, 176 AD3d 401, 401-402 [1st Dept 2019]). The retainer agreement called for a retainer and installment payments from Seibel totaling $500,000 as a cap through discovery and summary judgment (if any). The retainer agreement further provided that either party could terminate the relationship at any time, with SZS having the right to terminate its services if Seibel failed “to cooperate with a reasonable request, or if [SZS] determines, in its sole discretion, that continuing services to [Seibel] would be unethical, impractical, improper or otherwise inappropriate.” Several circumstances warranted SZS’s discontinuation of its representation of Seibel, including: the breach of Seibel’s duty to be truthful about certain kickbacks and his supposed disassociation from agreements with Caesars Enterprises Inc.; Seibel’s refusal to cooperate with SZS’s reasonable request that he produce his prenuptial agreement to Caesars; and the impracticability of continuing the representation due to Seibel’s failure to pay key vendors and expert witnesses and because of Bennett’s untimely death.

Furthermore, SZS demonstrated [*2]that it had grounds to discontinue its services without refunding Seibel’s fees. Seibel failed to object to the billing, which exceeded the $500,000 cap, and admitted that he paid that amount, thereby waiving any right he may have had to insist that SZS either continue representation or refund a portion of its fees (see generally Hyperion Med. P.C. v TriNet HR III, Inc., 190 AD3d 456, 458 [1st Dept 2021]). Seibel is also estopped from claiming that SZS breached the retainer agreement by terminating its services (see Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 184 [1982]). SZS relied to its detriment upon Seibel’s agreement to find replacement counsel, and Seibel never claimed that SZS was not entitled to discontinue its representation, nor did he request that SZS refund the fees already paid.”

Accounting malpractice is different from legal malpractice in several important ways. The first is the nature of yearly tax filings, which sets the structure for the application of the statute of limitations to a mistake in a single tax year and often rules out any question of the tolling of that statute because of continuing representation. A second difference is the prevalence of engagement letters that strongly favor the accountants and the general acceptance of such conditions as “gross negligence”, limitations of damages and the necessity of notice.

We recently discussed the statute of limitations issues and now follow up on the balance of the decision.

In Island Consol. v Grassi & Co., Certified Public Accountants PC 2025 NY Slip Op 30094(U) January 7, 2025 Supreme Court, New York County Docket Number: Index No. 451469/2023, Judge Margaret A. Chan works her way through many of these issues.

“In this professional malpractice action, plaintiffs Island Consolidated, Eastern Materials Corp., Island International Exterior Fabricators Del LLC, and Island Exterior Fabricators LLC (hereinafter collectively referred to as “Island” or “Plaintiffs”) allege professional malpractice and gross negligence against their accountant, defendant Grassi & Co., Certified Public Accountants PC for the sales tax advice it gave plaintiffs in 2015. In reliance on defendant’s 2015 sales tax advice, plaintiffs sustained monetary damages through tax penalties and interests on repayment costs to the New York State Department of Taxation and Finance, costs, and lost profits. Defendant moves to dismiss plaintiffs’ Amended Complaint for failure to: (1) comply with the condition precedent before bringing a suit against defendant; (2) timely bring their claims within the three-year statute of limitations; and (3) state a cause of action with sufficiency. Alternatively, defendant urges dismissal of damages on the grounds that they are not recoverable and is limited by the parties’ agreement. Plaintiffs oppose the motion.
For the reasons stated below, defendant’s motion is denied.”

“Defendant raises the three-year statute of limitations for professional malpractice claims as barring plaintiffs suit on the 2015 sales tax advice that defendant did not work on since 2015 forestalling plaintiffs’ argument on continuous representation (id. at 9-11).

As to the plaintiffs’ claims for gross negligence and intentional misrepresentation, defendant argues that plaintiffs failed to state a cause of action for these claim as their allegations are insufficient. Further, defendant argue that the misrepresentation claim should be dismissed also because it is duplicative of the malpractice claim.

Finally, defendant argues that absent gross negligence, plaintiffs’ damages
claims are limited by the parties’ Engagement Letters.

“Defendant argues that because plaintiffs failed to comply with the terms of the Engagement Letters by failing to give defendant requisite notice of claim within
one year of completion of subject services and failing to seek mediation as a
condition precedent to bring suit, the complaint should be dismissed (NYSCEF # 39

Deft’s MOL at 5-9). Defendant contends that the Engagement Letters signed by both parties are binding and dispositive (id. at 5). Defendant states that plaintiffs agreed that written notice of the dispute was required to be provided within one year from the date of completion of the subject services and that mediation was a condition precedent to bringing suit (id. at 6-8). Defendant informs that while the alleged advice and services rendered occurred in 2015, plaintiffs’ notice of a potential claim came on June 6, 2022, and their request for mediation followed five months thereafter (id. at 8).
Plaintiffs assert that the Engagement Letters attached as defendants’ exhibits C-M (NYSCEF #’s 61-71) do not apply to the 2014-2015 sales tax advice because other “written communications” sufficiently document the advice and the subject services are not covered by any Engagement Letters (Pltfs’ MOL at 6). The sales tax advice at issue is evidenced in written communications and in emails from April 2015 and 2020-2021 (id. at 7). Thus, plaintiff concludes that the condition precedent in the Engagement Letters do not apply to the 2014-2015 sales tax advice.
In any event, plaintiffs address the required one-year notice of claims upon completion of services. Plaintiffs assert that in December 2021 they had asked defendants to let their insurer know to expect claims to be forthcoming, and in June 2022, defendant was put on notice of plaintiffs’ claim against it with the summons with notice for this suit (id. at 9; NYSCEF # 59, Exh A- Summons). Plaintiffs claim that the notice was timely because until at least October 28, 2021, defendant was working on the tax appeal on the 2015 sales tax advice. Hence, plaintiffs conclude that the “completion of services” was at the end of October 2021 (Pltfs’ MOL at 9).
Contractual provisions that place a requirement on plaintiffs to file a notice of claim or to seek mediation before they can bring suit are commonly approved and upheld by New York courts as valid conditions precedent (see A.H.A. General Const., Inc. v New York City Housing Authority, 92 NY2d 20, 31-32 [1998] [holding a provision requiring plaintiffs to serve a timely notice of claim was a valid condition precedent, and not an exculpatory clause]). Failure to comply has often been found as a reason for dismissal of a plaintiffs’ complaint (see Archstone Dev. LLC v Renval Constr. LLC, 156 AD3d 432, 433 [1st Dept 2017] [holding lower court correctly dismissed breach of contract claim on the ground that plaintiff failed to satisfy a condition precedent of pursuing mediation prior to bringing suit]; see also Centennial Elevator Industries, Inc. v JRM Construction Management, LLC, 212 AD3d 457, 458 [1st Dept 2023] [same].

Here, the Engagement Letters from 2012 to 2020 include provisions requiring plaintiffs to provide notice of claim within one year from the date of the completion of the subject services and to pursue mediation within 90 days after (see e.g. Exhs C through M). These provisions make it such that noncompliance renders a plaintiffs claim as waived (see David Fanara!, Inc. v Dember Const. Corp., 195 AD2d 346, 348 [1st Dept 1993]). However, none of these Engagement Letters cover the sales tax advice service. Thus, plaintiffs’ point that the condition precedent in the Engagement Letters does not cover the sales tax service is well taken.”

“Defendant argues that because gross negligence is different from ordinary negligence in that it is conduct that ‘smacks of intentional wrongdoing’, plaintiffs have failed to plead any facts that would arise to the level of gross negligence as a matter of law.
It is true that in the context of liability, “‘gross negligence’ differs in kind, not only degree, from claims of ordinary negligence [and] evinces a reckless disregard for the rights of others” (see Colnaghi, U.S.A. v Jewelers Protection Servs, 81 NY2d 821, 824 [1993]). Where a plaintiffs cause of action merely repeats the allegations for a negligence cause of action and simply adds a claim that the defendant recklessly disregarded facts, this allegation will be insufficient to meet any special pleading standards that may be required (see Credit Alliance Corp. v Arthur Andersen & Co, 65 NY2d 536, 554 [1985] [holding that where a cause of action for fraud repeats the allegations for negligence and merely adds a claim that defendant recklessly disregarded facts which would have apprised it that its reports were misleading, this allegation was insufficient under the special pleading standards required under CPLR 3016[b] and the case should have been dismissed]). Claims of gross negligence and recklessness have been found to be sufficiently particularized under CPLR 3016(b) where the complaint alleges that the defendant failed to independently verify provided information, despite having notice of particular circumstances raising doubts as to the verity of such information (see Foothill Capital Corp. v Grant Thornton LLP, 276 AD2d 437 [1st Dept 2000]).
Plaintiffs here have sufficiently pleaded their claim of gross negligence with sufficient particularity so as to survive the motion to dismiss. In their complaint, plaintiffs specifically allege that defendant acted with not just reckless disregard but that defendant provided different and correct sales tax advice and guidance to other similarly situated clients, while failing to notify plaintiffs of its error or take any remedial steps to mitigate the damage. Plaintiffs further allege that defendant took steps to intentionally conceal any such negligence by falsely representing to plaintiffs in 2020 that their newfound conclusions were a result of a change in law. Thus, plaintiffs have gone beyond merely adding a claim that defendant acted with a reckless disregard for plaintiffs’ right and have specifically enumerated factual allegations, which if taken as true as the court must do at the pleading stage, could reasonably be found by a fact-finder to evince an utter indifference to plaintiffs’ rights. Plaintiffs’ claim for gross negligence withstands defendant’s motion to dismiss.”

Accounting malpractice is different from legal malpractice in several important ways. The first is the nature of yearly tax filings, which sets the structure for the application of the statute of limitations to a mistake in a single tax year and often rules out any question of the tolling of that statute because of continuing representation. A second difference is the prevalence of engagement letters that strongly favor the accountants and the general acceptance of such conditions as “gross negligence”, limitations of damages and the necessity of notice.

In Island Consol. v Grassi & Co., Certified Public Accountants PC 2025 NY Slip Op 30094(U) January 7, 2025 Supreme Court, New York County Docket Number: Index No. 451469/2023, Judge Margaret A. Chan works her way through many of these issues. The decision is fairly long (too long for a blog) but well worth reading.

“In this professional malpractice action, plaintiffs Island Consolidated, Eastern Materials Corp., Island International Exterior Fabricators Del LLC, and Island Exterior Fabricators LLC (hereinafter collectively referred to as “Island” or “Plaintiffs”) allege professional malpractice and gross negligence against their accountant, defendant Grassi & Co., Certified Public Accountants PC for the sales tax advice it gave plaintiffs in 2015. In reliance on defendant’s 2015 sales tax advice, plaintiffs sustained monetary damages through tax penalties and interests on repayment costs to the New York State Department of Taxation and Finance, costs, and lost profits. Defendant moves to dismiss plaintiffs’ Amended Complaint for failure to: (1) comply with the condition precedent before bringing a suit against defendant; (2) timely bring their claims within the three-year statute of limitations; and (3) state a cause of action with sufficiency. Alternatively, defendant urges dismissal of damages on the grounds that they are not recoverable and is limited by the parties’ agreement. Plaintiffs oppose the motion.”

“Defendant makes three arguments to dismiss the plaintiffs’ claims: (1) failure to comply with a condition precedent set forth in the Engagement Letters; (2) the
three-year statute of limitations bars this suit; and (3) plaintiffs fail to state a cause
of action based on documentary evidence, or allege their intentional misrepresentation with specificity, which claim is also duplicative of their professional malpractice claim, or allege their gross negligence claim with sufficiency. Each of the three arguments with plaintiffs’ corresponding opposition will be addressed in turn starting with defendant’s statute of limitations argument, followed by the condition precedent issue, the failure to state a cause of action arguments, and finally, the damages issue.”

“Defendant argues that plaintiffs’ causes of action based on malpractice for its sales tax advice in 2015 are barred by the three-year statute of limitations for professional malpractice (id. at 9-11). And because such a claim accrues when the malpractice is initially committed, plaintiffs’ claims for professional malpractice expired in 2018 (id. at 10). Defendant adds that the continuous representation doctrine did not toll the statute of limitations here because the recurrence of any professional relationship between the parties was limited to incidental and general advising and not specific to the 2015 advice (id. at 11).
In opposing defendant’s statute of limitations argument, plaintiffs contend that the parties had an understanding that more work is needed and that defendant had to engage in corrective measures or remedial measures (id. at 18). Citing Shumsky v Eisenstein (96 NY2d 164, 168 [2001]), plaintiffs assert that “[f]or accounting malpractice, the statute of limitations begins to run when the accounting representation is completed. The continuous representation doctrine tolled the statute of limitations for plaintiffs’ cause of action such that their complaint is timely” (id. at 18-19). Plaintiffs contend that defendant continued to provide their professional advice and guidance on the sales tax issues from 2015 through late 2021 and dealt with tax authorities to try to avoid the very sales taxes that defendant had claimed were not taxable (id.). Plaintiffs claim that defendants were engaged in continuous representant which tolls the statute of limitations for accounting malpractice (id. at 18 citing Lemle v Regen, Benz & MacKenzie, CPA, PC, 165 AD3d 414, 415 [1st Dept 2018]).”

“Here, plaintiffs have alleged sufficient facts establishing that the continuous
representation doctrine tolled the statute of limitations for professional malpractice
in this case. While the follow-up June 16, 2020, memorandum and follow-up 2021 emails do repeat, clarify, and elaborate on the advice first given, this alone is likely not sufficient to rise to what is needed to trigger the continuous representation doctrine (see Apple Bank for Sau., 70 AD3d at 438). However, plaintiffs here also allege and demonstrate that defendant continued to provide their professional advice and guidance regarding sales taxes by defending a tax appeal on the exact issues through late 2021 (see Lemle, 165 AD3d at 414). These allegations support a reasonable inference that the parties’ professional relationship was not just comprised of a recurrence of general duties.
Accordingly, defendant’s motion to dismiss the amended complaint as barred by the statute of limitations is denied.”

Gans v Leech Tishman Fuscaldo & Lampl, LLC 2026 NY Slip Op 01305 Decided on March 10, 2026 Appellate Division, First Department features some of the biggest players in the legal malpractice defense world, a surprise entry on the plaintiff’s side and a party in the underlying transactions with the same name but that has nothing to do with this author.

“Plaintiff is an experienced real estate investor who held a real estate portfolio of approximately 20 commercial properties (the Gans Entities), including Westside Realty of New York, Inc. (Westside). Westside owned property located at West 28th Street in Manhattan (the 28th St property). In June of 2018, plaintiff began having cash flow issues due to a failed investment. In an effortto generate more cash, he entered into three separate loans: (i) a preferred equity agreement between plaintiff’s entity (the Common Member) and nonparty Eli Tabak’s entity (the Preferred Member), whereby the Preferred Member invested $5 million in a joint venture that owned 100% of the stock in Westside, secured by UCC liens; (ii) cross-collateralized mortgages on the Gans Entities with nonparty Mack Real Estate Credit (Mack) for $130 million in senior debt; and (iii) an $18 million loan agreement with nonparty Bluestone Group LLC (Bluestone) for mezzanine financing.

In 2020, during the pandemic, plaintiff defaulted on his obligations with the Preferred Member, Mack, and Bluestone. Plaintiff subsequently reached out to his lawyers of more than 25 years, defendants Robinson Brog Leinwand Greene Genovese & Gluck, P.C., Neil S. Goldstein, and Philip H. Thomas (collectively, Robinson Brog), to assist with modifying the joint venture agreement and restructuring his debt with Mack and Bluestone. However, on June 17, 2021, the Preferred Member gave notice that it would sell Common Member’s interests in the joint venture at a public sale to be held on August 11, 2021. According to plaintiff, despite obtaining an offer to purchase the 28th St property for $27 million, the Preferred Member elected to move forward with the auction. As a result, plaintiff’s common membership interest in the joint venture was sold for only $100,000.

In March 2024, plaintiff sued defendants for malpractice, alleging inter alia,that Robinson Brog committed malpractice by failing to take necessary actions and provide certain advice to plaintiff to prevent the foreclosure of the 28th St property. Further, plaintiff alleges that because he was unable to use the proceeds of the proposed sale of the 28th St property, the ongoing negotiations with Mack and Bluestone concerning the restructuring of debt failed, causing plaintiff to file for bankruptcy. Finally, plaintiffalleges that Robinson Brog’s negligence caused him to lose ownership of his property portfolio in which he held equity of over $80 million.

The court correctly granted Robinson Brog’s motion to dismiss the legal malpractice action against them. “[T]o state a cause of action for legal malpractice, the complaint must set forth three elements: the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and proof of actual damages” (Bishop v Maurer, 33 AD3d 497, 498 [1st Dept 2006], affd 9 NY3d 910 [2007]; see also e.g. AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]). Even assuming plaintiff satisfied the first element of negligence, he failed to demonstrate the second element of proximate cause (see Leder v Spiegel, 31 AD3d 266, 268 [1st Dept 2006], affd 9 NY3d 836 [2007], cert denied 552 US 1257 [2008]). Plaintiff failed to show that “but for” Robinson Brog’s negligence, he would not have lost his interest in the 28th St property, which caused him even greater losses (Bishop, 33 AD3d at 498).

Plaintiff’s argument that the foreclosure of his interest in the 28th St property could have been prevented had Robinson Brog promptly contacted Preferred Member’s counsel, Isaac Neuberger, after notice of the auction or Neuberger’s June 30, 2021 email, is unavailing and purely speculative (see Brooks v Lewin, 21 AD3d 731, 734-735 [1st Dept 2005], lv denied 6 NY3d 713 [2006] [“[S]peculation on future events is insufficient to establish that the defendant lawyer’s malpractice, if any, was a proximate cause of [the plaintiff’s] loss”]). Robinson Brog asserts that they did reach out to Neuberger before the auction to explain that it was adverse to the Preferred Member’s business interests because it would enable senior lenders Mack and Bluestone to foreclose on the property. Moreover, even if Robinson Brog contacted Neuberger, plaintiff’s admission that the Preferred Member “had not been acting in good faith throughout the process” and had a “scheme” to steal the 28th St property contradicts plaintiff’s allegations of malpractice (see generally Lisi v Lowenstein Sandler LLP, 170 AD3d 461, 462 [1st Dept 2019] [dismissing malpractice claim where complaint’s allegations contradicted the plaintiff’s theory]). Further, it appears that the offer to purchase the 28th St property for $27 million would have been insufficient to make the Preferred Member whole, and thus it would have still been within its rights to sell. In short, plaintiff failed to demonstrate that but for Robinson Brog’s inaction or delayed action as discussed above, the foreclosure would not have occurred.

Plaintiff’s argument that Robinson Brog should have tried to enjoin the auction is also without merit. Because the Common Member owned shares of Westside, which owned a commercial property, it could not demonstrate irreparable injury (see Broadway 500 W. Monroe Mezz II LLC v Transwestern Mezzanine Realty Partners II, LLC, 80 AD3d 483, 484 [1st Dept 2011]; see also RTW Retailwinds, Inc. v Colucci & Umans, 213 AD3d 509, 510 [1st Dept 2023] [“Reasonable strategic decisions made by an attorney cannot form the basis of a cause of action for legal malpractice”]). Moreover, plaintiff’s contention that the Preferred Member needed the senior lender’s consent to remove the Common Member as manager lacks merit. While the senior loan agreement prohibited Westside from permitting such removal, it did not require the Preferred Member to obtain Mack’s consent before exercising its rights under the joint venture agreement.

Additionally, assuming Robinson Brog advised plaintiff again to pursue bankruptcy before the auction, it is speculative to assume that the bankruptcy would ultimately have allowed plaintiff to keep the equity in his properties (see Heritage Partners, LLC v Stroock & Stroock & Lavan LLP, 133 AD3d 428, 428-429 [1st Dept 2015], lv denied 27 NY3d 904 [2016]).”