Williams v Biggs July 29, 2026 Appellate Division, Second Department is a long decision to read. Pro-se plaintiff loses most causes of action, but the final paragraphs prove to be a potential victory.

“This action stems from an underlying action commenced by the plaintiff against New York City Health and Hospitals Corporation (hereinafter NYCHHC), several physicians that NYCHHC employed, including the defendant Carina Biggs, and Kings County Hospital Center (hereinafter KCHC) to recover damages for medical malpractice and lack of informed consent. The plaintiff initially was represented in the underlying medical malpractice action by the defendant Law Offices of Goldfarb & Gerzog (hereinafter G & G). The defendant McAloon & Friedman, P.C. (hereinafter M & F), and the defendants Laura R. Shapiro, Lisa B. Goldstein, and Michael S. Kivowitz (hereinafter collectively the M & F defendants) represented the defendants in the underlying medical malpractice action.

The defendant Ira D. Gerzog left G & G on or about May 25, 2018, and the plaintiff allegedly executed a consent to change attorney form designating Law Offices of Steven M. Goldfarb (hereinafter LOSMG) as in coming counsel. After LOSMG assumed the plaintiff’s representation, in October 2018, the defendant Rhonda Rosen, a deputy litigation chief of the medical litigation unit of NYCHHC, made a settlement offer on behalf of NYCHHC to the plaintiff. Thereafter, the defendant Steven M. Goldfarb executed a stipulation discontinuing the underlying medical malpractice action against the physician defendants only. The case was marked “SETTLED BEFORE TRIAL” on the New York State Courts Electronic Filing System.

The plaintiff, however, refused to sign a release because he believed that certain of the medical records produced at the depositions of the defendant physicians were forged. Communications between Goldfarb and the plaintiff deteriorated, and the plaintiff requested that Goldfarb sign a consent to change attorney form designating the plaintiff as proceeding pro se, which Goldfarb allegedly did not return.

On or about March 20, 2020, the plaintiff commenced this action against Goldfarb, G & G, LOSMG, and the defendant Karen Levine, who worked for G & G and LOSMG (hereinafter collectively the Goldfarb defendants), the defendant Sara Kim, a resident physician who the plaintiff alleged forged his signature on an informed consent form, Gerzog, the M & F defendants, as well as Biggs, Rosen, and the defendant Dawn Maynard, an individual who certified NYCHHC’s records. Biggs, Rosen, and Maynard are employed by NYCHHC (hereinafter collectively the municipal defendants). The complaint alleged that the defendants, acting in concert with each other and aiding and abetting each other, used forged medical records in the underlying medical malpractice action to minimize the defendants’ liability and to induce the plaintiff to accept the settlement offer. The complaint asserted 20 cases of action, including violations of Judiciary Law § 487, legal malpractice, fraud, forgery, prima facie tort, intentional infliction of emotional distress, conversion, breach of fiduciary duty, breach of contract, and for declaratory relief.”

“The first cause of action, to recover damages for violation of Judiciary Law § 487, failed to state a cause of action upon which relief can be granted against Rosen. An attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party,” is guilty of a misdemeanor and liable for treble damages (Judiciary Law § 487[1]). “Relief pursuant to Judiciary Law § 487 is not lightly given, and requires a showing of egregious conduct or a chronic and extreme pattern of behavior on the part of the defendant attorneys” (Kaufman v Moritt Hock & Hamroff, LLP, 192 AD3d 1092, 1093 [citation and internal quotation marks omitted]; see Savitt v Greenberg Traurig, LLP, 126 AD3d 506, 507; Chowaiki & Co. Fine Art Ltd. v Lacher, 115 AD3d 600, 601). “A cause of action alleging a violation of Judiciary Law § 487 must be pleaded with specificity” (Kaufman v Moritt Hock & Hamroff, LLP, 192 AD3d at 1093 [internal quotation marks omitted]).

The first cause of action failed to allege facts upon which it can reasonably be inferred that Rosen intended to deceive the Supreme Court (see Klein v Rieff, 135 AD3d 910, 912). Additionally, even accepting the allegations in the first cause of action as true, Rosen’s alleged conduct of making a settlement offer does not allege “‘egregious conduct or a chronic and extreme pattern of behavior on'” Rosen’s part (Grasso v Guarino, 227 AD3d 872, 873, quoting Kaufman v Moritt Hock & Hamroff, LLP, 192 AD3d at 1093).”

“Contrary to the plaintiff’s contentions, the Supreme Court properly granted that branch of Gerzog’s motion which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against him and properly granted the separate motion of the Goldfarb defendants pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them, with the exception of the nineteenth cause of action. The first cause of action, to recover damages for violation of Judiciary Law § 487(1), failed to allege sufficiently specific facts from which it could be reasonably inferred that Gerzog or the Goldfarb defendants acted with the requisite degree of scienter (see Langton v Sussman & Watkins, 238 AD3d 726, 730; Guliyev v Banilov & Assoc., P.C., 221 AD3d 589, 591; Briarpatch Ltd., L.P. v Frankfurt Garbus Klein & Selz, P.C., 13 AD3d 296, 297-298). The first cause of action also failed to adequately allege that Gerzog’s allegedly deceitful conduct proximately caused the plaintiff’s damages (see Barouh v Law Offs. of Jason L. Abelove, 131 AD3d 988, 990).

The second cause of action failed to state a cause of action to recover damages for violation of Judiciary Law § 487(2). An attorney violates Judiciary Law § 487(2) where he “[w]illfully delays his client’s suit with a view to his own gain” (id.; see Coccia v Liotti, 70 AD3d 747, 754). With respect to Gerzog, the allegations are largely based on conduct that occurred after Gerzog had departed from G & G, and the plaintiff’s allegation that Gerzog delayed filing the note of issue to force secret settlement discussions, in addition to being speculative, contradicts his allegation that Gerzog prematurely filed the note of issue before discovery was complete. In any event, the allegation that Gerzog delayed filing the note of issue did not amount to willful delay (see Sciocchetti v Molinsek, 223 AD3d 1046, 1048). Further, the allegations that Goldfarb failed to make various motions, failed to retain a forensic document examiner after accepting the settlement offer, or failed to return the executed consent to change attorney form designating the plaintiff as proceeding pro se did not support an inference that Goldfarb intended to delay the case for his own gain (see Sciocchetti v Molinsek, 223 AD3d at 1047). The plaintiff alleged that Goldfarb requested that the plaintiff sign the general release, which would have resolved the underlying medical malpractice action, not delayed it. Moreover, considering that Goldfarb was entitled to a percentage of any verdict or settlement the plaintiff received upon the execution of the general release, it is not reasonable to infer that he refused to prosecute the case for his own gain.”

“Nevertheless, we agree with the plaintiff that the Supreme Court erred in directing dismissal of the nineteenth cause of action for a judgment, in effect, declaring that Gerzog, G & G, and LOSMG may not recover legal fees for the work performed in the underlying medical malpractice action. The plaintiff alleged that Gerzog improperly withdrew his representation of the plaintiff (see 22 NYCRR 1200.0, rule 8.4[d]) and that the plaintiff terminated Goldfarb’s representation for cause. On this record, Gerzog failed to demonstrate his entitlement to dismissal of the nineteenth cause of action as a matter of law. Further, “[i]n general, a hearing is required to determine whether a client has cause for discharging an attorney” (Doviak v Finkelstein & Partners, LLP, 90 AD3d 696, 699).”

In Matter of Solomon v Broderick 2026 NY Slip Op 04510 July 22, 2026 Appellate Division, Second Department. the father unsuccessfully invoked Judiciary Law 487 to try to avoid paying child support.

“In 2006, a matrimonial action between Jeffrey Solomon and his former wife was commenced in the Supreme Court. In September 2007, Solomon and his former wife apparently entered into a stipulation of settlement, which was incorporated but did not merge with a January 2008 judgment of divorce. Pursuant to the stipulation and judgment of divorce, Solomon became obligated to pay child support. An order dated March 26, 2018, made after a hearing, addressed Solomon’s and Solomon’s former wife’s various post-judgment of divorce applications. Thereafter, it appears that the Nassau County Department of Social Services (hereinafter the DSS), through its Support Collection Unit, took actions to collect child support arrears from Solomon.

In September 2019, Solomon commenced this CPLR article 78 proceeding against Paul F. Broderick, in his capacity as the DSS’s Acting Commissioner, inter alia, in effect, to enforce the order dated March 26, 2018, and to prohibit the DSS’s Support Collection Unit from enforcing payment of his alleged child support arrears. In October 2019, in response to the petition, the DSS submitted an affirmation of Ellen Abberbock, an attorney employed with the DSS’s Support Collection Unit, together with records regarding the alleged arrears. In a judgment dated March 11, 2020, the Supreme Court denied the petition.

In June 2021, the petitioner moved, inter alia, pursuant to CPLR 5015(a)(3) to vacate the judgment dated March 11, 2020, on the ground that Abberbock had no authority to act on behalf of the DSS, and for various sanctions against Abberbock on that ground. The DSS opposed the motion. In an order entered January 31, 2022, the Supreme Court denied the petitioner’s motion. The petitioner appeals.

Contrary to the petitioner’s contention, the Supreme Court properly denied that branch of his motion which was pursuant to CPLR 5015(a)(3) to vacate the judgment dated March 11, 2020 (see Taunton Metals of Fla., Inc. v Solutions in Stainless, Inc., 234 AD3d 726). CPLR 5015(a)(3) “permits a court to vacate a judgment or order on the basis that a party may have been prevented from fully and fairly litigating the matter due to fraud, misrepresentation, or other misconduct of an adverse party in obtaining the judgment or order” (Abakporo v Abakporo, 202 AD3d 646, 649 [internal quotation marks omitted]; see Taunton Metals of Fla., Inc. v Solutions in Stainless, Inc., 234 AD3d 726; Bank of N.Y., N.A. v Scarso, 233 AD3d 739, 740). Here, the petitioner failed to satisfy his burden of establishing that the judgment was procured through fraud or other misconduct (see Washington Mut. Bank v Baldera, 208 AD3d 1278, 1280; cf. Belesi v Connecticut Mut. Life Ins. Co., 272 AD2d 353, 354).”

“The petitioner’s remaining contentions, including that Abberbock committed deceit within the meaning of Judiciary Law § 487, are without merit.”

In Mrkulhttps://www.nycourts.gov/reporter/current/3dseries/2026/2026_04499.shtmlic v Peters 2026 NY Slip Op 04499 July 22, 2026 Appellate Division, Second Department, the Supreme Court judge gave leave to file a default, then agreed with defendants that there should be no default, and then once again agreed with plaintiffs that there should be a default. Three years later the Second Department stepped in.

“In an action to recover damages for legal malpractice, the defendants appeal from (1) an order of the Supreme Court, Kings County (Debra Silber, J.), dated August 8, 2023, and (2) a judgment of the same court dated August 23, 2023. The order granted the plaintiff’s motion for leave to reargue his opposition to the defendants’ prior motion pursuant to CPLR 5015 to vacate an order of the same court (Richard Velasquez, J.) dated March 1, 2022, granting the plaintiff’s unopposed motion for leave to enter a default judgment against the defendants, which had been granted in an order of the same court (Debra Silber, J.) dated March 30, 2023, and, upon reargument, vacated so much of the order dated March 30, 2023, as granted the defendants’ prior motion and directed that the defendants’ answer be considered timely served and filed, reinstated the order dated March 1, 2022, and thereupon, in effect, denied the defendants’ prior motion. The judgment, upon the order dated August 8, 2023, is in favor of the plaintiff and against the defendants in the principal sum of $255,405.86.”

“The plaintiff commenced this action to recover damages for legal malpractice. In an order dated March 1, 2022, the Supreme Court granted the plaintiff’s unopposed motion for leave to enter a default judgment against the defendants and directed the entry of a money judgment in favor of the plaintiff and against the defendants in the amount demanded in the complaint. The defendants moved pursuant to CPLR 5015 to vacate the order dated March 1, 2022, and the plaintiff opposed the motion. In an order dated March 30, 2023, the court, inter alia, granted the defendants’ motion and directed that the defendants’ answer be considered timely served and filed. The plaintiff moved for leave to reargue his opposition to the defendants’ prior motion to vacate the order dated March 1, 2022. In an order dated August 8, 2023, the court granted the plaintiff’s motion for leave to reargue and, upon reargument, vacated so much of the order dated March 30, 2023, as granted the defendants’ prior motion to vacate the order dated March 1, 2022, and directed that the defendants’ answer be considered timely served and filed, reinstated the order dated March 1, 2022, and thereupon, in effect, denied the defendants’ prior motion. A judgment dated August 23, 2023, upon the order dated August 8, 2023, was issued in favor of the plaintiff and against the defendants in the principal sum of $255,405.86. The defendants appeal.

A motion for leave to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion” (CPLR 2221[d][2]). While the determination to grant leave to reargue lies within the sound discretion of the court (see Garcia v Cali CW Realty Assoc., L.P., 230 AD3d 1231, 1232), a motion for leave to reargue “is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided, or to present arguments different from those originally presented” (McGill v Goldman, 261 AD2d 593, 594; see Wells Fargo Bank, N.A. v Weiss, 237 AD3d 1003, 1005; Emigrant Bank v Kaufman, 223 AD3d 650, 652).

Here, the Supreme Court improvidently exercised its discretion in granting the plaintiff’s motion for leave to reargue, since the plaintiff failed to demonstrate that the court overlooked or misapprehended the relevant facts or misapplied any controlling principle of law (see Garcia v Cali CW Realty Assoc., L.P., 230 AD3d at 1232; Degraw Constr. Group, Inc. v McGowan Bldrs., Inc., 178 AD3d 772, 773).”

Ardent Harmony Fund, Inc. v BDO Trinity Ltd. 2026 NY Slip Op 02090 [248 AD3d 859]

April 8, 2026 Appellate Division, Second Department describes the attempt to bring an accounting malpractice case in New York, where all of the players were off-shore. The only activity in NY was communications with credit advisors, which was insufficient.

“The plaintiff is a mutual fund domiciled in the Cayman Islands. In 2014 and 2015, the plaintiff engaged the services of nonparty BDO Cayman Ltd. (hereinafter BDO Cayman), also based in the Cayman Islands, to conduct audits of the plaintiff’s financial statements for the financial years ending December 31, 2013, and December 31, 2014, respectively. BDO Cayman delegated certain work in connection with those audits to the defendant, BDO Trinity Ltd., doing business as BDO Trinidad & Tobago, a company existing under the laws of Trinidad & Tobago, with its principal place of business in Trinidad & Tobago. In November 2019, the plaintiff commenced this action, inter alia, to recover damages for accounting malpractice, alleging that the defendant was negligent in connection with those audits by failing to uncover an alleged fraud perpetrated by New York-based credit advisors with whom the plaintiff had invested the bulk of its assets.”

“ong as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted” (Fischbarg v Doucet, 9 NY3d at 380 [internal quotation marks omitted]).

Here, accepting as true the allegations set forth in the complaint and in opposition to the defendant’s renewed motion, and according the plaintiff the benefit of every favorable inference (see Nick v Schneider, 150 AD3d 1250, 1251 [2017]), the plaintiff failed to make a prima facie showing that the defendant was subject to personal jurisdiction in New York (see Law Off. of Cary Scott Goldinger, P.C. v Deluca, 219 AD3d 598, 600 [2023]; Bloomgarden v Lanza, 143 AD3d 850, 851 [2016]). The complaint alleged that the plaintiff, a Cayman Island fund, hired a Cayman Islands-based auditor to conduct audits of its financial statements, and that the Cayman Islands auditor delegated certain work to the defendant, which is based in Trinidad & Tobago. Jurisdictional discovery established that all of the defendant’s employees are based in Trinidad & Tobago, that all work performed by the defendant in connection with the audits took place in Trinidad & Tobago, and that the defendant’s employees never traveled to New York in connection with the audits. The defendant’s only connection to New York consisted of phone calls and approximately 60 emails with the New York-based credit advisors with whom the plaintiff’s funds were invested. These incidental communications, undertaken by the defendant merely because the credit advisors were domiciled in New York, are insufficient to establish personal jurisdiction over the defendant pursuant to CPLR 302 (a) (1) (see Musial v Donohue, 225 AD3d 1164, 1165 [2024]; Bloomgarden v Lanza, 143 AD3d at 852; CRT Invs., Ltd. v BDO Seidman, LLP, 85 AD3d 470, 471 [2011]).”

Kolyer v Sallah 2026 NY Slip Op 04287 July 8, 2026 Appellate Division, Second Department is one of those cases from the Second Department that is a little short on description and requires reading between the lines. What the evidence of departures in handling of the spouses’ QDRO or division of a pension might have been remains unsaid.

“In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Maureen T. Liccione, J.), dated September 20, 2024. The order granted the defendants’ motion pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the order is affirmed, with costs.”

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

:

There are limits on when a Judiciary Law 487 claim applies, and Nimkoff v Waldbaum
2026 NY Slip Op 04203 July 1, 2026 Appellate Division, Second Department holds that one of them is that the attorney who is accused of deceit must have been acting as an attorney.

“In June 2019, the plaintiff commenced this action against his former wife, the defendant Nancy Waldbaum, and their daughter, the defendant Ilana Joy Waldbaum, sued herein as Ilana Joy Nimkoff (hereinafter Ilana Waldbaum). The plaintiff commenced this action by filing a summons with notice. The plaintiff served the summons with notice upon the defendants in January 2020 and served the complaint in March 2020. He asserted causes of action, inter alia, to recover damages for malicious prosecution and defamation, alleging that the defendants filed a false police report against him. The defendants each interposed an answer and each asserted a counterclaim to recover damages for a violation of Judiciary Law § 487, alleging that the plaintiff, an attorney, engaged in a deceitful act by using therapy sessions with the defendants to gain information to use in this action without informing the defendants that he had commenced this action. Ilana Waldbaum also asserted a counterclaim for an award of counsel fees as child support.

On August 25, 2020, the Supreme Court issued a discovery order (hereinafter the August 2020 discovery order) directing the plaintiff to act diligently to convert this action to an electronically filed action no later than 30 days from the date of the order. The court further directed that the plaintiff would have 30 days from the date this action was converted to move for a protective order with respect to the outstanding discovery demands and, should the plaintiff fail to timely move for a protective order, the plaintiff’s full and complete responses, in proper form, must be served upon each defendant within 45 days of the conversion.”

“The Supreme Court properly granted that branch of the plaintiff’s motion which was pursuant to CPLR 3211(a) to dismiss the defendants’ counterclaims to recover damages for a violation of Judiciary Law § 487. While Judiciary Law § 487 may apply to an attorney acting pro se (see AQ Asset Mgt., LLC v Levine, 119 AD3d 457), the statute applies only to actions taken by that party acting in their capacity as an attorney (see Altman v DiPreta, 204 AD3d 965, 969; Pinkesz Mut. Holdings, LLC v Pinkesz, 198 AD3d 693, 698). Here, the plaintiff was not acting as an attorney in connection with the therapy sessions at which the deceitful conduct allegedly occurred, and that conduct is therefore not subject to Judiciary Law § 487.”

Gruber v Donaldsons, Inc. 2026 NY Slip Op 04182 July 1, 2026 Appellate Division, Second Department is an unusual set up for a legal malpractice case, which involves the car dealership, GEICO, attorneys hired by GEICO and the owner of the vehicle.

“In an action, inter alia, to recover damages for fraud and legal malpractice, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Francis D. Ricigliano, J.), dated March 24, 2023. The order granted that branch of the motion of the defendants GEICO General Insurance Company, Inc., and Russo & Tambasco which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them, denied the plaintiffs’ motion for summary judgment on the issue of liability on the causes of action to recover damages for fraud, breach of the covenant of good faith and fair dealing, and legal malpractice, granted that branch of the cross-motion of the defendants GEICO General Insurance Company, Inc., and Russo & Tambasco which was for summary judgment dismissing the complaint insofar as asserted against them, and granted that branch of the cross-motion of the defendant Donaldsons, Inc., which was for summary judgment dismissing the complaint insofar as asserted against it.

ORDERED that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the motion of the defendants GEICO General Insurance Company, Inc., and Russo & Tambasco which was pursuant to CPLR 3211(a) to dismiss the cause of action to recover damages for legal malpractice, and substituting therefor a provision denying that branch of the motion, and (2) by deleting the provision thereof granting that branch of the cross-motion of the defendants GEICO General Insurance Company, Inc., and Russo & Tambasco which was for summary judgment dismissing the cause of action to recover damages for legal malpractice, and substituting therefor a provision denying that branch of the cross-motion; as so modified, the order is affirmed, with one bill of costs to the defendant Donaldsons, Inc., payable by the plaintiffs.

On October 6, 2014, a vehicle registered to the plaintiff Kevin W. Gruber and being driven by the plaintiff Thomas E. Difolco was involved in an accident with a motorcycle. The motorcycle driver allegedly suffered serious injuries and subsequently commenced a personal injury action against Gruber and Difolco (hereinafter together the plaintiffs). The defendant Russo & Tambasco (hereinafter the GEICO attorneys) represented the plaintiffs in connection with the personal injury action. The motorcycle driver obtained summary judgment on the issue of liability, and Gruber was ultimately liable for so much of the settlement award as exceeded the insurance policy limits.

On September 30, 2018, the plaintiffs commenced the instant action against Donaldsons, Inc. (hereinafter Donaldsons), the dealership where the vehicle involved in the accident was purchased, GEICO General Insurance Company, Inc. (hereinafter GEICO), and the GEICO attorneys. The complaint, inter alia, asserted causes of action to recover damages for fraud against Donaldsons and GEICO, a cause of action alleging breach of the covenant of good faith and fair dealing against GEICO, and a cause of action alleging legal malpractice against the GEICO attorneys. The plaintiffs alleged that Donaldsons fraudulently induced Gruber to purchase and become the registered owner of the vehicle, which was intended for Difolco’s use, by misrepresenting that only the person named in the insurance policy for the vehicle, and not the registered owner of the vehicle, had any liability for the vehicle. The complaint also alleged that Donaldsons fraudulently secured insurance coverage for the vehicle through GEICO in Difolco’s name, even though Gruber was not named as an insured on the policy. Further, the plaintiffs alleged that GEICO breached the covenant of good faith and fair dealing by issuing a New York State insurance identification card to Gruber that misrepresented that GEICO had issued an owner’s policy of insurance to him. The complaint also alleged that the GEICO attorneys committed legal malpractice, among other things, in failing to meaningfully oppose the motorcycle driver’s motion for summary judgment in the personal injury action.”

“Initially, we are unpersuaded by Donaldsons’s contention that the appeal should be dismissed on the ground that no appeal lies from a decision. “Decisions may not be appealed, although appeals may be taken from orders and final judgments” (Charalabidis v Elnagar, 188 AD3d 44, 47 [citations omitted]; see CPLR 5501[a]; 5512[a]). Here, the paper appealed from meets the criteria for an order set forth in CPLR 2219(a) and determined the respective motions and cross-motions (see Bellizzi v Bellizzi, 82 AD3d 1541, 1542-1543).

The Supreme Court should have denied that branch of the GEICO defendants’ motion which was to dismiss the cause of action to recover damages for legal malpractice pursuant to CPLR 3211(a)(1) and (7) pursuant to the single motion rule (see id. § 3211[e]; Eustache v Board of Educ. of the City Sch. Dist. of the City of N.Y., 236 AD3d 590, 591; Oakley v County of Nassau, 127 AD3d 946, 947). The GEICO defendants did not provide a sufficient reason for not including the argument to dismiss the cause of action to recover damages for legal malpractice pursuant to CPLR 3211(a)(1) and (7) as an alternative basis for relief in the GEICO attorneys’ prior motion to dismiss (see Oakley v County of Nassau, 127 AD3d at 947).

Contrary to the plaintiffs’ contention, the complaint failed to state a cause of action to recover damages for breach of the covenant of good faith and fair dealing against GEICO. “‘Implicit in every contract is an implied covenant of good faith and fair dealing'” (East Ramapo Cent. Sch. Dist. v New York Schs. Ins. Reciprocal, 199 AD3d 881, 884, quoting 25 Bay Terrace Assoc., L.P. v Public Serv. Mut. Ins. Co., 194 AD3d 668, 671-672). “The implied covenant of good faith and fair dealing is a pledge that neither party to the contract shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruit of the contract, even if the terms of the contract do not explicitly prohibit such conduct” (id. [internal quotation marks omitted]; see Moran v Erk, 11 NY3d 452, 456; Gutierrez v Government Empls. Ins. Co., 136 AD3d 975, 976-977). “‘No obligation may be implied that would be inconsistent with other terms of the contractual relationship'” (East Ramapo Cent. Sch. Dist. v New York Schs. Ins. Reciprocal, 199 AD3d at 884, quoting Celauro v 4C Foods Corp., 187 AD3d 836, 838). “In the context of an insurance-related dispute, the implied covenant of good faith and fair dealing means that the insurer must investigate claims for coverage in good faith, must not manufacture factually incorrect reasons to deny insurance coverage, must not deviate from its own practices or from industry practices, and must not act with ‘gross disregard of the insured’s interests'” (id. [internal quotation marks omitted], quoting Smith v General Acc. Ins. Co., 91 NY2d 648, 653; see Pavia v State Farm Mut. Auto. Ins. Co., 82 NY2d 445, 453).

The complaint alleged not that GEICO failed to fulfill its obligations under the policy of insurance, but rather that GEICO acted in bad faith in issuing the policy. Such allegations fall outside the scope of the implied covenant of good faith and fair dealing, which “is a pledge that neither party to the contract shall do anything which will have the effect of destroying or injuring the right of the other party to receive the fruit of the contract” (Gutierrez v Government Empls. Ins. Co., 136 AD3d at 976).

The Supreme Court also properly granted those branches of the cross-motions of the GEICO defendants and Donaldsons which were for summary judgment dismissing the causes of action alleging fraud, because the defendants demonstrated, prima facie, that the plaintiffs’ reliance on Donaldsons’s misrepresentation was unreasonable as a matter of law (see ISS Action, Inc. v Tutor Perini Corp., 170 AD3d 686, 689). “[I]f the facts represented are not matters peculiarly within the party’s knowledge, and the other party has the means available to him [or her] of knowing, by the exercise of ordinary intelligence, the truth or the real quality of the subject of the representation, he [or she] must make use of those means, or he [or she] will not be heard to complain that he [or she] was induced to enter into the transaction by misrepresentations” (id. at 688 [internal quotation marks omitted]). Gruber’s liability as a registered vehicle owner pursuant to section 388 of the Vehicle and Traffic Law is not a matter peculiarly within the defendants’ knowledge, and the plaintiffs could have easily made an inquiry as to whether Gruber would be liable under the arrangement (see R. Vig Props., LLC v Rahimzada, 213 AD3d 871, 872; DeFilippo v Hidden Ponds Assoc., 146 AD2d 737, 737). In opposition to the defendants’ prima facie showing, the plaintiffs failed to raise a triable issue of fact as to whether their reliance on the alleged misrepresentation was justified (see ISS Action, Inc. v Tutor Perini Corp., 170 AD3d at 689). For the same reasons, the court properly denied that branch of the plaintiffs’ motion which was for summary judgment on the issue of liability on the causes of action alleging fraud.

In an action to recover damages for legal malpractice, “a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused [the] plaintiff to sustain actual and ascertainable damages” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [internal quotation marks omitted]). Here, the plaintiffs’ evidentiary submission failed to establish, prima facie, that Gruber would not have been personally liable for the settlement award beyond the insurance policy but for the GEICO attorneys’ negligence (see id. at 443; Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1018).

However, “[a] defendant seeking summary judgment dismissing a legal malpractice cause of action has the burden of establishing prima facie that he or she did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages” (Bakcheva v Law Offs. of Stein & Assoc., 169 AD3d 624, 625). Contrary to their contention, the GEICO defendants failed to meet this burden (see Gardner v Sacco & Fillas, LLP, 216 AD3d 1139, 1140). Accordingly, the Supreme Court erred in granting that branch of their motion which was for summary judgment dismissing the cause of action to recover damages for legal malpractice.”

Kushakow v Law Offs. of Joseph B. Rosenberg 2026 NY Slip Op 00882 [246 AD3d 885]
February 18, 2026 Appellate Division, Second Department mentions but does not really discuss Judiciary Law 487. It does illustrate the problem in estate or elder law legal malpractice cases, that is, capacity to sue and standing to sue. Too often it is the beneficiary who has been injured, yet lacks either capacity or standing.

“The plaintiff commenced this action against the defendant Joseph B. Rosenberg and his firm, the defendant Law Offices of Joseph B. Rosenberg, to recover damages for legal malpractice, fraud, negligent misrepresentation, breach of fiduciary duty, unjust enrichment, and violation of Judiciary Law § 487, and for a constructive trust. The plaintiff alleged that the defendants were retained as estate planning counsel by the plaintiff’s parents, Stanley Kushakow (hereinafter Stanley) and Rita Kushakow (hereinafter Rita) in 2004. In 2005, the defendants prepared, among other things, wills and various trust documents for Stanley and Rita. The plaintiff alleged that in June 2007, Rita obtained a life insurance policy with a pay out in the sum of $10,000,000, naming Stanley as the sole beneficiary. After Stanley died in August 2014, the beneficiary of the policy was not changed, such that Stanley remained the beneficiary. On November 6, 2015, Rosenberg met with Rita to review various new estate planning documents, including, inter alia, her 2015 will, nominating Rosenberg as co-executor with the plaintiff, and a disclosure as to commissions and fees of attorney/fiduciary, which allowed for the attorney/fiduciary to receive a full commission. On September 8, 2020, Rita died. According to the plaintiff, it was the family’s intention to leave the life insurance policy proceeds to the plaintiff. The plaintiff alleged that because no amendments were made to the life insurance policy after Stanley’s death, nor were estate planning devices undertaken by the defendants, the proceeds from the life insurance policy passed through Rita’s estate, causing estate taxes to be applied and depriving the plaintiff of the full proceeds, while generating the sum of approximately $234,000 in commissions and other fees to the defendants.

The defendants moved pursuant to CPLR 3211 (a) to dismiss the amended complaint. In an order entered February 14, 2024, the Supreme Court granted the motion, concluding, among other things, that the plaintiff lacked the capacity to sue. The plaintiff appeals.”

“”[S]tanding . . . concerns the absence or presence of a sufficiently cognizable stake in the outcome of the litigation” (Nicke v Schwartzapfel Partners, P.C., 148 AD3d 1168, 1171 [2017]), whereas “[c]apacity to sue concerns a litigant’s power to appear and bring [his or her] grievance before the court” (id. at 1170). “Standing and capacity to sue are related, but distinguishable, legal concepts . . . [and] are both components of a party’s authority to sue” (Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242 [2007]; see Matter of Hamm v Board of Elections in the City of N.Y., 194 AD3d 73, 77 [2021]). Lack of standing and lack of capacity are both addressed within the scope of the same statutory subdivision, CPLR 3211 (a) (3) (see Wilmington Sav. Fund Socy., FSB v Matamoro, 200 AD3d 79, 89 [2021]).

A “proposed” administrator who has not obtained letters of administration lacks capacity to bring an action to recover damages on behalf of the decedent’s estate (see Gulledge v Jefferson County, 172 AD3d 1666, 1667 [2019]; Muriel v New York City Health & Hosps. Corp., 52 AD3d 792, 792 [2008]).

Here, the relief awarded by the Supreme Court, in the form of directing dismissal of the amended complaint based on the plaintiff’s lack of capacity, was not too dramatically unlike the relief sought by the defendants and was not prejudicial to the plaintiff (see Robinson v Big City Yonkers, Inc., 179 AD3d at 963; Matter of Blauman-Spindler v Blauman, 68 AD3d at 1106). Although in their motion pursuant to CPLR 3211 (a) to dismiss the amended complaint, the defendants did not formally and specifically request dismissal of the amended complaint on the ground of lack of capacity, they did argue for dismissal on the ground of lack of standing, based upon the plaintiff’s failure to provide letters testamentary to enable him to sue the defendants on behalf of Rita’s estate (see Matter of Blauman-Spindler v Blauman, 68 AD3d at 1106; see also Matter of Hamm v Board of Elections in the City of N.Y., 194 AD3d at 77). While the court directed dismissal of the amended complaint for lack of capacity rather than lack of standing, the basis for the dismissal was for the same reason argued by the defendants, that is, that the plaintiff had not provided letters of administration or letters testamentary enabling him to initiate a lawsuit on behalf of Rita’s estate (see Matter of Blauman-Spindler v Blauman, 68 AD3d at 1106; see also Matter of Hamm v Board of Elections in the City of N.Y., 194 AD3d at 77). Thus, the court properly treated the motion as one made, in effect, pursuant to CPLR 3211 (a) (3) to dismiss the amended complaint for lack of capacity (see Matter of Blauman-Spindler v Blauman, 68 AD3d at 1106) and properly directed dismissal of the amended complaint on that ground, as the plaintiff’s failure to provide letters of administration or letters testamentary deprived him of capacity to bring this lawsuit on behalf of Rita’s estate (see Gulledge v Jefferson County, 172 AD3d at 1667; Muriel v New York City Health & Hosps. Corp., 52 AD3d at 792). Thus, the facts plainly appearing on the papers warranted the relief granted (see Matter of Blauman-Spindler v Blauman, 68 AD3d at 1106).

Accordingly, the Supreme Court properly granted the defendants’ motion pursuant to CPLR 3211 (a) to dismiss the amended complaint.”