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]).”

The client didn’t exercise a right of first refusal. Was it the attorney’s fault for not presenting a complete package to the client including a title report, or was it the client’s choice not to proceed?

In Sathyanarayanan v Moberg 2026 NY Slip Op 50237(U) Decided on February 27, 2026
Supreme Court, Suffolk County Pastoressa, J, the court finds for the attorneys.

“This is a legal malpractice action. Defendants, Michael Moberg and Moberg Law Group P.C., represented plaintiffs, Pranav Sathyanarayanan and Kaitlin Pranav, in a real estate transaction. Pursuant to a January 2022 contract, plaintiffs purchased the premises at 416 Oakwood Road in Port Jefferson, New York, from nonparties John Reiersen and Eugenia Reiersen. As pertinent here, paragraph 45 of the rider to the contract stated that “[t]he PURCHASERS shall have a Right of First Refusal with regard to the purchase of the adjacent lot (0206/66/1/1034) to be exercised, if at all, no later than 10 business days from the date they are served with notice of a valid purchase offer from a third party, by SELLERS.” Paragraph 38 of the rider to the contract stated that “[t]he parties hereby designate their respective attorneys as their agents to send or receive any notices pursuant to this contract.”

On March 30, 2022, the Reiersens’ counsel sent to defendants notice of a valid offer to purchase the adjacent lot for $232,000.00. The next day, defendants emailed plaintiffs with the Reiersens’ counsel’s letter. On April 4, defendants emailed plaintiffs again to ensure that they received the letter. Sathyanarayanan responded, stating that he had seen the letter. In an April 13 email, plaintiffs asked for an update on the title search for the adjacent lot (Amended Complaint, NYSCEF doc. 21, at ¶ 29 citing Emails, NYSCEF doc. 16). Defendants responded that he had still not received the title report for the adjacent lot and asked if April 29 was a good closing date for the main property (id.; Emails, NYSCEF doc. 16). Plaintiffs stated that they “aren’t really in a position to make an offer since without [sic] knowing its [sic] a pink elephant of an investment” (Amended Complaint, NYSCEF doc. 21, at ¶ 30), stated that April 29 was a good closing date for the main property, and that they were “[l]ooking forward to putting pen to paper on this!” (Emails, NYSCEF doc. 16).

Two years later, in March 2024, an entity named J & E Associates transferred the [*2]adjacent lot to M3K Development, LLC. Plaintiffs then commenced this action for legal malpractice and breach of fiduciary, all based on their failure to exercise their right of first refusal for the adjacent lot in 2022. Their amended complaint alleges, in broad terms, that defendants committed legal malpractice and breached their fiduciary duties by failing to demand proper service of the notice of purchase upon plaintiffs, as service on defendants was allegedly improper; failing to give plaintiffs an accurate date by which they had to exercise their right of first refusal; failing to object to the Reiersens’ counsel’s letter as insufficient; failing to draft a proper right of first refusal; and failing to record the contract of sale, with the right of first refusal, against the adjacent lot.”

“Defendants correctly argue that plaintiffs have not pleaded but-for causation, so the legal malpractice claim is dismissed. The emails between the parties, which were quoted in the complaint and referenced in the complaint by NYSCEF document number,^[FN1] reveal that plaintiffs declined to exercise their right of first refusal, at which point their right to do so was extinguished (Yudell Trust I v API Westchester Assoc., 227 AD2d 471, 473; McPeady & Co. v Chestnut St. Props., 179 AD2d 915, 917; Story v Wood, 166 AD2d 124, 129). The amended complaint pleads that without a title report, plaintiffs “[we]ren’t really in a position to make an offer since without [sic] knowing it’s a pink elephant of an investment” (Amended Complaint, at ¶ 30, citing Email, NYSCEF doc. 16). In other words, the amended complaint pleads that plaintiffs declined to exercise their right of first refusal.^[FN2] Without any allegation that defendants’ failure to procure a title report quicker constituted malpractice, plaintiffs’ decision not to purchase the adjacent lot eliminates any but-for causation.

A breach of fiduciary duty claim also requires but-for causation “in the context of an action asserting attorney liability” (Lambro Indus., Inc. v Gilbert, 233 AD3d 765, 767; see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 10). For the reasons explained above, this claim is dismissed too.”

PCO 1500 Inv., L.P. v Ahmuty, Demers & McManus 2026 NY Slip Op 30664(U)
February 25, 2026 Supreme Court, New York County Docket Number: Index No. 158852/2025 Judge: James d’Auguste quickly telegraphs its decision by finding that dismissal was in no way attributed to departures by the attorneys.

“Defendant Ahmuty, Demers & McManus (“Ahmuty”) seeks dismissal of this attorney
malpractice litigation commenced by its former client, plaintiff Zapco 1500 Investment, L.P. (“Zapco”). The motion to dismiss is granted.
Zapco was a defendant in the underlying litigation in this Court captioned Citizen Watch
Company of America, Inc. v. Zapco 1500 Investment, LP., Index No. 655565/2020. In an
amended complaint filed in the underlying litigation, Citizen asserted ten causes of action against Zapco: (1) Breach of Contract; (2) Rescission/Termination for Water Leaks; (3) Fraudulent Concealment; (4) Breach of Covenant of Quiet Enjoyment; (5) Nuisance; (6) Mandatory Injunction; (7) Specific Performance; (8) Rescission/Termination – Frustration of Purpose; (9) Rescission/Termination-Impossibility of Performance; and (10) Reformation of Lease. In its answer to the amended complaint, Zapco disputed Citizen’s allegations in support of its claims and opposed the relief sought against it.

On May 25, 2021, a preliminary conference order was issued setting discovery deadlines. Notably, Zapco failed to meet its discovery obligations as directed by court order. There is no contention that this failure is in any way attributable to Ahmuty. As a result of Zapco’s failure to produce relevant discovery, Citizen filed a sanctions motion. After providing the parties with a full opportunity to brief the issue and hearing oral argument, the Court (Masley, J.), on January 14, 2022, issued an order of conditional dismissal. NYSCEF Doc. No. 23. In its order, the Court directed Zapco to provide documents, identify its records custodian together with search terms used to search responsive files, produce a privilege log, and, concerning one individual, a Jackson affidavit detailing a good faith search for responsive documents. Id.
Zapco failed to comply with the terms of the conditional order striking its pleading.
Citizen then sought to enforce the conditional order. On July 4, 2022, the Court (Masley, J.) found Zapco’s discovery responses to be inadequate to comply with the conditional order. NYSCEF Doc. No. 26. As a result, Zapco’s answer was stricken and Citizen was awarded $62,113.25 in attorneys’ fees. Id. A judgment was filed by the Clerk on August 10, 2022, which entered a money judgment and declared the lease between Zapco and Citizen to have been rescinded and terminated. NYSCEF Doc. No. 27. In an opinion dated May 25, 2023, the First Department affirmed the striking of Zapco’s answer, together with the declaration that the lease had been terminated and rescinded. NYSCEF Doc. No. 29.”

“Zapco has not asserted a meritorious claim of professional negligence. Legal
malpractice requires two showings: “(1) that the attorney ‘failed to exercise the ordinary
reasonable skill and knowledge commonly possessed by a member of the legal profession’; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages.” Dempster v Liotti, 86 A.D.3d 169, 176 (2d Dep’t 2011). Zapco has not alleged facts supporting a legal conclusion that either of the factors necessary to support a claim oflegal malpractice has been met under the circumstances presented.
First, ” [ a ]ttorneys may select among reasonable courses of action in prosecuting their
clients’ cases without thereby committing malpractice. Dweck Law Firm, LLP v. Mann, 283 A.D.2d 292,293 (1st Dep’t 2001); see also Dimondv. Salvan, 78 A.D.3d 407,408 (1st Dep’t 2010) (rejecting malpractice claim even if law firm could have “advanced other theories”); MII Exports, Inc. v Mooney, 223 A.D.2d 499,499 (1st Dep’t 1996) (that attorneys moved to vacate, modify or reopen a prior summary judgment order in the underlying action instead of appealing that order, and that they negotiated a settlement upon the consent of their clients, plaintiffs herein, does not raise an issue of fact as to legal malpractice). In this regard, it was reasonable to await the conclusion of discovery to file a dispositive motion for what could only be partial summary judgment. However, the challenge is impermissibly based upon hindsight, given the striking of Zapco’ s answer. Ahmuty was not required to clairvoyantly predict Zapco’ s willful failure to abide by its discovery obligations. It was also reasonable to address the sanctions motion without attempting to file a dispositive motion, which would have represented an application that the Court would have been permitted to deny as moot once the answer was stricken. Liberty Community Assoc., LP v DeClemente, 139 A.D.3d 532, 532 (1st Dep’t 2015) (denial of defendant’s cross motion to dismiss was moot in case where defendant’s answer had been stricken as a discovery sanction). Notably, Zapco has not cited a single case supporting the proposition that attorneys commit legal malpractice for not filing dispositive motions earlier in a case because they failed to anticipate a client’s willful violation of multiple court orders to produce discovery.
Second, Zapco has not met the second factor necessary to show legal malpractice, which is proximate cause. In this regard, Zapco was required to plead facts showing that any purported professional negligence was the proximate cause of its damages. Nomura Asset Capital Corporation v. Cadwalader Wickersham & Taft, 26 N.Y.3d 40, 49-50 (2015). Causation is a “high bar to attorney malpractice liability, [which] seeks to insure a tight causal relationship exists between the claimed injuries and the alleged malpractice.” Flutie Bros. v. Hayes, 2006 WL 1379594, at *5 (S.D.N.Y. May 18, 2006) (internal citations and quotations omitted). Here, Ahmuty did not miss any deadlines for filing a dispositive motion. Indeed, such a motion was capable of being raised even after a Note of Issue would have been filed pursuant to the CPLR and the preliminary conference order. Assuming Zapco had meritorious defenses to certain claims, it was Zapco’ s misconduct that resulted in the imposition of a judgment in favor of Citizen pursuant to CPLR 3126. See Bernard v. Proskauer Rose, LLP, 87 A.D.3d 412,416 (1st
Dep’t 2011) (affirming dismissal of attorney malpractice claim where “it was plaintiffs own misconduct prior to and apart from any advice from defendants that led to his termination for cause”). Zapco cannot show that “but for” Ahrnuty’s purported professional negligence there would have been a more favorable outcome since it was not Ahrnuty that deprived Zapco of a merits-based resolution of Citizen’s claim.
Finally, Zapco’s assertion that it would have prevailed in the underlying action is based
upon impermissible speculation. Giambrone v. Bank of New York, 253 A.D.2d 786, 787 (2d Dep’t 1998). Citizen lodged multiple substantive claims of misconduct against Zapco. For instance, Citizen asserted that Zapco committed fraud in relation to the water leaks. Notably, Zapco willfully violated court orders to produce discovery in relation to issues surrounding this very issue. For example, the keywords used by Zapco to search its records did not even include the term “water leaks.” The striking of Zapco’s answer demonstrates that the court in the underlying action believed that Zapco’ s conduct was “clearly deliberate or contumacious.”
Henry Rosenfeld, Inc. v. Bower & Gardner, 161 A.D.2d 374,374 (1st Dep’t 1990). Considering this ruling, it is speculative in the extreme to contend that the court in the underlying action would have permitted any sort of end run around its order striking the answer in its entirety.”

In Sebastiano v Bamundo, Zwal & Schermerhorn LLP 2026 NY Slip Op 01145
Decided on February 26, 2026 Appellate Division, First Department Plaintiff was injured on an interior stairway which lacked treads. The case was lost either because the stairway did not need treads or because the plaintiff expert failed to convince the court that the stariway required treads. It all depends on when the building was built.

“Order, Supreme Court, Bronx County (Elizabeth A. Taylor, J.), entered on or about January 23, 2025, which, to the extent appealed from, denied defendant law firm’s motion for summary judgment dismissing the legal malpractice action as against it, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

The law firm established its prima facie entitlement to summary judgment because its expert opined that the 1914 Building Code applied, since the plans for the construction of the staircase were approved in 1915, and the approval date was the operative date for the purposes of applying a code provision to any portion of a structure. The 1914 Code, as opposed to the 1916 Code, did not require that interior stairs have non-slip treads.

Plaintiff failed to raise a triable issue of fact as to which code applied, and so we are able to decide as a matter of law that the 1914 code applied (see DeRosa v City of New York, 30 AD3d 323, 326 [1st Dept 2006]). Accordingly, since plaintiff, as required by General Municipal Law § 205-e, is unable to cite to a predicate code and/or ordinance, which did require that the stairs that plaintiff’s decedent fell on have a non-slip tread, he cannot establish any causal connection between the law firm’s failure to determine the station’s “built” date and applicable building code, and the dismissal of the complaint in the underlying action (see Gallet, Dreyer & Berkey, LLP v Basile, 141 AD3d 405, 405 [1st Dept 2016]).”

In 538 Morgan Realty LLC v Law Off. of Aihong You, PC 2025 NYSlipOp 06639 December 2, 2025 the Appellate Division, First Department parses the responsiblity of several groups of attorneys. Some remain in the case.

“Plaintiffs alleged facts permitting a reasonable inference that the liquidated damages clause would have been found unenforceable had the You defendants timely challenged it in the underlying action (see generally Bates Adv. USA, Inc. v 498 Seventh, LLC, 7 NY3d 115, 120 [2006]; Truck Rent-A-Ctr. v Puritan Farms 2nd, 41 NY2d 420, 423-425 [1977]). Plaintiffs adequately pleaded that contract damages could have been readily ascertained by deducting the contract price from the fair market value of the property at the time of the breach (see generally White v Farrell, 20 NY3d 487, 489 [2013]), obviating the need to resort to liquidated damages, and/or that the liquidated damages amount was grossly disproportionate to any potential actual damages. Moreover, the testimony of the contracting parties’ representatives that the liquidated damages clause constituted a “punishment” or “penalty” supports plaintiffs’ claims that the clause was unenforceable, as well as plaintiffs’ allegations that the You defendants advised them that the liquidated damages clause was unenforceable.

The contract’s statements that “Purchaser’s damages in case of Seller’s default might be impossible to ascertain” and that the liquidated damages amount was “a fair and reasonable amount of damages under the circumstances” are not dispositive (see Truck Rent-A-Ctr., 41 NY2d at 425).

Plaintiffs also alleged facts permitting a reasonable inference that had the liquidated damages clause been deemed unenforceable, the damages awarded at trial (which were largely based on the liquidated damages amount) would have been significantly reduced, and given plaintiffs greater leverage in settlement negotiations (cf. Bernstein v Oppenheim & Co., 160 AD2d 428, 430 [1st Dept 1990] [claim for malpractice stated where counsel’s mistakes compelled settlement]).

Plaintiffs did not, however, adequately plead a legal malpractice claim against defendants Joseph & Smargiassi, LLC, John Smargiassi, and Mario Alexis Joseph (the JS defendants) with respect to the alleged negligent failure to challenge the liquidated damages clause. The JS defendants were not retained until four years after the motion to dismiss was decided, an amended complaint filed and answered, and approximately seven months after the note of issue was filed. Plaintiffs argue that defendants should have filed a summary judgment motion seeking dismissal of the claim for liquidated damages; however, by the time the JS defendants were retained, the time to file such a motion had already expired (see CPLR 3212 [a]). Although a court may grant leave to file a late summary judgment motion “on good cause shown” (CPLR 3212 [a]), the You defendants had already moved to vacate the note of issue and to file a late summary judgment motion, and those motions were denied.

Further, the legal malpractice claim was properly dismissed as against all defendants to the extent that it was premised on their alleged failure to take measures beyond the motion to dismiss to shield the individual plaintiffs from personal liability in the underlying action on the conversion claim. Plaintiffs failed to allege facts permitting a reasonable inference that any motion to establish that they lacked “complete domination and control” over their entity would have been successful (see Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d 135, 141-142 [1993]; Tap Holdings, LLC v Orix Fin. Corp., 109 AD3d 167, 174 [1st Dept 2013]). Further, that defendants may have promised to file such a motion is not sufficient. The court in the underlying action found that the allegations in the complaint supported a piercing the corporate veil theory, and the testimony at trial showed that the individual plaintiffs personally received the contract prepayment amount. The trial court’s comments at the posttrial hearing do not give any indication as to how it would have ruled had the issue of personal liability actually been before it.”

Lee v Leifer 2026 NY Slip Op 30589(U) February 18, 2026 Supreme Court, New York County Docket Number: Index No. 159786/2020 Judge: Sabrina Kraus brings up the question of why anyone would not answer a complaint.

“Around 2004, Plaintiff and nonparty Eddie Choi formed a venture to operate a japanese restaurant named “Kyoto” in Flushing, Queens. Plaintiff owned a 75% stake in the business and handled daily operations, while Choi owned 25% of the business. The restaurant consisted of both a main area for regular customers and an adjacent building used as a private party venue.

Around 2006, Plaintiff and Choi formed an entity called “Kyoto Sushi, Inc.” to operate
the restaurant. The shareholder agreement provided that Plaintiff would own 75% of the corporation’s shares and Choi would own 25% (NYSCEF Doc No. 138). Around 2010, the two agreed that Choi, who was then living in China, would transfer his 25% ownership interest to his mother, Nancy Ng (“Ng”). The new shareholder agreement provided that Plaintiff would own 75% of the corporation’s shares and Ng would own 25% (NYSCEF Doc No. 91, Ex. G).
Around January 2013, Plaintiff formed a new entity, ESquared Group, Inc., to allegedly
take over the operations of the restaurant’s private party room (NYSCEF Doc No. 92). Plaintiff testified that he never got Ng’s approval for the creation (NYSCEF Doc No. 93, at 51). Around 2013, Plaintiff also formed an entity called ASquared, Inc., to allegedly take over the operations of the main area of the restaurant. Plaintiff testified that he did not give Ng a stock certificate with 25% of the company’s shares, nor did he notify her of the formation (id. at 51, 61).
Around 2014, Plaintiff dissolved several prior corporations connected to the restaurant
without notifying Ng (id. at 49–50).
Around February 2016, Choi requested a review of the company’s bank statements, and
Plaintiff allegedly refused. Around October 2016, Plaintiff sold ASquared, Inc. to an entity called Stella 153, Inc., which was owned by the girlfriend of Plaintiff’s father (id. at 56–57). Plaintiff did not give Ng a 25% interest in the sale proceeds.

The following information forms the basis of the current action and was admitted by
Defendants.
In August 2016, Plaintiff contacted defendant-attorney Max Leifer (“Leifer”) to seek help
with his business dispute with Ng. Plaintiff requested that Leifer contact Ng’s attorney and convey that he was willing to settle with her. Leifer then contacted Ng’s attorney and provided Ng’s attorney with tax records that were relevant to the dispute. Leifer also scheduled a meeting with Ng and her attorney in September 2016 to discuss a settlement; however, the meeting never materialized.
On November 28, 2016, Ng commenced the Prior Action by filing a Summons and
Complaint, alleging causes of action for breach of fiduciary duty among others (Ng v ASquared,
Inc. et al., Case No. 714168/2016). Plaintiff was required to file an answer to Ng’s complaint by
January 25, 2017 (see Case No. 714168/2016, NYSCEF Doc No. 7 [affidavit of service filed
onto NYSCEF on December 26, 2017]).
The parties dispute the following information.
Plaintiff alleges that after he was served with process, Leifer advised him that he would
not be liable for punitive damages such that if he failed to file an answer to Ng’s complaint, he would only be liable for the amount limited to the shareholder agreements. Plaintiff alleges that he had a meritorious defense to Ng’s request for punitive damages but that the failure to interpose an answer precluded him from asserting that defense.
Defendants allege that no such conversation between Leifer and Plaintiff occurred and
that Leifer advised Plaintiff that Leifer would file an answer for Plaintiff if his law firm formally entered into a retainer agreement with Plaintiff and Plaintiff paid a retainer fee of $5,000.00. Defendants allege that Leifer advised Plaintiff that failure to file an answer could result in a default judgment but that Plaintiff, seeking to avoid the legal fees, voluntarily decided not to retain Leifer and willfully chose not to file an answer.
Plaintiff did not file an answer in the Prior Action. On December 21, 2017, Ng moved for
a default judgment (NYSCEF Doc No. 122, at 2). On January 11, 2018, Leifer filed an affidavit in opposition to Ng’s motion for a default judgment in which he stated that he represented Plaintiff in the Prior Action (NYSCEF Doc No. 124).”

“On February 21, 2018, the Queens County Supreme Court (Butler, J.S.C.) granted Ng’s
motion for a default judgment against Plaintiff for failure to file an answer (Case No.
714168/2016, NYSCEF Doc No. 26).
On March 17, 2020, after an inquest hearing, the Queens County Supreme Court
(Modica, J.S.C.) issued a decision granting Ng $700,000.00 in punitive damages, $135,208.98 in compensatory damages and $42,345.00 in legal fees together with interest (Case No. 714168/2016, NYSCEF Doc No. 46, at 22–23).”

“An attorney commits legal malpractice when (1) the attorney was negligent, (2) such
negligence was a proximate cause of plaintiff’s losses, and (3) the plaintiff sustained actual damages (Global Bus. Inst. v Rivkin Radler LLP, 101 AD3d 651, 651 [1st Dept 2012]). “[T]he failure to show proximate cause mandates the dismissal of a legal malpractice action regardless of whether the attorney was negligent” (Wo Yee Hing Realty Corp. v Stern, 99 AD3d 58, 63 [1st Dept 2012] [internal quotation omitted]). A defendant meets their initial burden on proximate cause “by showing an absence of proximate cause” between the alleged negligence and plaintiff’s damages (Levine v Lacher & Lovell-Taylor, 256 AD2d 147, 151 [1st Dept 1998]).
Defendants argue that Plaintiff’s claim fails because the Queens County Supreme Court
ruled in the previous action that Plaintiff did not have a meritorious defense to Ng’s claims which negates Plaintiff’s proximate cause argument in this action. Plaintiff’s complaint specifically alleges that Plaintiff would have been able to defend against Ng’s punitive damages claim because:
[Plaintiff] did not steal the business, he never disputed Ms. Ng’s (and Mr. Choi’s)
25% ownership in the business. Throughout the operation of the business Plaintiff
shared 25% of the profits with Mr. Choi and Ms. Ng – when the business was
profitable – and continuously recognized and acknowledged Ms. Ng’s and Mr.
Choi’s ownership interest in the business. Even after various corporate
reorganizations, Mr. Lee continued to distribute to Ms. Ng (and Mr. Choi) 25% of
any distributable profits and, following the sale of the business, Mr. Lee did not
dispute that Ms. Ng (and Mr. Choi) were entitled to their respective share of the
proceeds . . . There was no quasi-criminal conduct that would have supported Ms.
Ng’s claims for punitive damages. (NYSCEF Doc No. 5, at 2–3).

Plaintiff argues that he would not have been liable for punitive damages had he asserted this defense as punitive damages are recoverable for breach of fiduciary duty where “it appears that the breach may demonstrate a high degree of ‘moral culpability’” (Stein v McDowell, 74 AD3d 1323, 1326 [2d Dept 2010], quoting Giblin v Murphy, 73 NY2d 769, 772 [1988]).
Defendants’ position ignore the First Department’s decision in this case affirming denial
of their CPLR § 3211. The First Department held:

Lee’s default required the court to accept as true all allegations against him as to
liability. While Lee had the opportunity to contest the punitive damages claim at
the subsequent damages inquest, he was not permitted to introduce evidence to
counter the underlying cause of action.
Although the inquest court rejected the substance of Lee’s purportedly meritorious
defense, it did so on a limited record. “[W]hile [defaulting] defendants are entitled
to present testimony and evidence and cross-examine the plaintiff’s witnesses at the
inquest on damages, they may not conduct discovery.” Because Lee, having
defaulted, forfeited the right to discovery, he was deprived of the opportunity to
amass a record on which the inquest court might have credited his defense to the
punitive damages claim.
(Lee v Leifer, 209 AD3d 531, 532 [1st Dept 2022] [emphasis added] [internal citations
omitted]).”

“Thus, giving Plaintiff the benefit of every reasonable inference, Defendants do not
establish a prima facie case of lack of causation as a matter of law or that Plaintiff would not have been able to defend against Ng’s punitive damages claim even if the Defendants filed an answer to her Complaint.”

Jones Law Firm, P.C. v J Synergy Green, Inc. 2026 NY Slip Op 00840 Decided on February 17, 2026 Appellate Division, First Department is interesting as it covers Fraud, separate Judiciary Law 487 application as well as when a settlement is effectively compelled.

“The court properly concluded that the counterclaims and third-party complaint state causes of action for fraud (see generally Ambac Assur. Corp. v Countrywide Home Loans, Inc., 151 AD3d 83, 85 [1st Dept 2017], affd 31 NY3d 569 [2018]). Defendants’ causes of action allege that at the time defendants signed an engagement agreement with plaintiff in 2021, plaintiff failed to disclose the close relationship its principal, third-party defendant Tanner Jones, had with the arbitration forum chosen to handle fee disputes, third-party defendant Professional Arbitration and Mediation LLC (PAM). Defendants allege that in the fee arbitration plaintiff instituted against them, they had no input in the selection of the arbitrator, third-party defendant David Treyster, Esq. After Treyster rendered a decision awarding plaintiff $118,796.04 without a hearing, defendants learned that Treyster had a prior relationship with Jones and had been represented by Jones, that Jones had an interest in PAM, and that plaintiff and PAM shared an address in New York. At this pleading stage, appellants have failed to establish that their misrepresentations or omissions were immaterial (see Roni LLC v Arfa, 74 AD3d 442, 445 [1st Dept 2010], affd 18 NY3d 846 [2011]; cf. Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330, 350 [1999]).

Defendants also adequately allege damages, insofar as it can be inferred from the counterclaims that, had they known the truth about the relationship, they would not have hired plaintiff (cf. Connaughton v Chipotle Mexican Grill, Inc., 135 AD3d 535, 538 [1st Dept 2016], affd 29 NY3d 137 [2017]). We have considered and rejected appellants’ argument that defendants’ claims constitute breach of contract damages (cf. MaÑas v VMS Assoc., LLC, 53 AD3d 451, 454 [1st Dept 2008]).

Defendants also adequately alleged ascertainable damages in their malpractice claim by alleging that plaintiff’s conduct with respect to actions in Nassau County and the Eastern District of New York, as well as in an earlier arbitration before JAMS, exposed them to fee-shifting and rendered them unable to prove damages, forcing them to settle the matters on unfavorable terms (see generally Dweck Law Firm v Mann, 283 AD2d 292, 293 [1st Dept 2001]). Whether plaintiff sought to remedy any defects in the arbitration is a question of fact not resolvable at this pleading stage.

Furthermore, defendants sufficiently alleged damages in their Judiciary Law § 487 claims (Amalfitano v Rosenberg, 12 NY3d 8, 13 [2009]; Garanin v Hiatt, 219 AD3d 958, 958-960 [2d Dept 2023]). A claim under Judiciary Law § 487 must be supported by an allegation of damages proximately caused by an alleged false statement to the court (Saporito v Branda, 213 AD3d 588, 589 [1st Dept 2023]). Defendants specifically allege that they suffered damages in the form of legal fees incurred while defending the Article 75 summary proceeding which plaintiff initiated under false pretenses to confirm the PAM arbitration award obtained through plaintiff’s deceitful conduct (Amalfitano, 12 NY3d at 13; Garanin, 219 AD3d at 958-960).”

It’s rare to see a legal malpractice case in Civil Court rather than Supreme Court, if only for the lower jurisdictional damage numbers available. Here, the claim is potentially timely, given a broad view of “continuing representation” but is dismissed nevertheless on speculation or lack of proximate cause.

“”On a motion pursuant to CPLR 3211 (a) (5) to dismiss a complaint as barred by the applicable statute of limitations, the moving defendant must establish, prima facie, that the time in which to commence the action has expired” (Kitty Jie Yuan v 2368 W. 12th St., LLC, 119 AD3d 674 [2d Dept 2014]). The burden then shifts to the plaintiff to raise a triable issue of fact as to whether the statute of limitations is tolled or is otherwise inapplicable (see Beizer v Hirsch, 116 AD3d 725 [2d Dept 2014]). Pursuant to CPLR § 214 (6), an action to recover damages for legal malpractice must be commenced within three (3) years of when the alleged malpractice was committed.

In a legal malpractice action, the continuous representation doctrine tolls the statute of limitations only where the continuing representation pertains specifically to the matter in which the attorney committed the alleged malpractice (Shumsky v Eisenstein, 96 NY2d 164, 168 [2001]). Representation is continuous when there is “clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney” (Farage v Ehrenberg, 124 AD3d 159, 164 [2d Dept 2014], lv denied 25 NY3d 906 [2015]), or “a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” (Matter of Merker, 18 AD3d 332, 333 [1st Dept 2005]).

In the matter at bar, defendant fails to demonstrate, prima facie, that plaintiff failed to commence the action within three years of the alleged malpractice. It is uncontroverted that by the Letter, that defendant indicated that on January 6, 2021, plaintiff was informed that the case had been “closed and forfeited,” and that plaintiff agreed with defendant’s office that defendant would file a CBP Freedom of Information Act Request (FOIA) (plaintiff’s exhibit C). The Letter further indicated that on December 9, 2022, defendant even spoke to plaintiff about the results of the FOIA request. The Letter reflects an indicium of a mutual understanding of the need for further representation on the forfeiture action. Defendant’s own submissions in support of its motion raises issues of fact as to whether defendant continuously represented plaintiff, thereby tolling the statute of limitations. The FOIA request submitted by defendant clearly pertains specifically to the matter in which defendant committed the alleged malpractice. Even assuming that defendant had satisfied its initial burden, plaintiff’s submissions in opposition sufficiently establish that an issue of fact exists as to whether the defendant continuously represented him, which would toll the statute of limitations. Accordingly, this portion of defendant’s motion is denied.
[*3]Failure to State a Claim

“To establish a cause of action for legal malpractice, plaintiff must show that: (i) the attorney was negligent; (ii) the attorney’s negligence was a proximate cause of plaintiff’s loss; and (iii) plaintiff suffered actual damages” (RTW Retailwinds, Inc. v Colucci & Umans, 213 AD3d 509, 510 [1st Dept 2023]). To constitute negligence, an attorney’s conduct must be below the “ordinary and reasonable skill and knowledge commonly possessed by a member of the profession” (Bernstein v Oppenheim & Co., P.C., 160 AD2d 428, 430 [1st Dept 1990]). Plaintiff must also establish that “but for counsel’s alleged malpractice, the plaintiff would not have sustained some actual ascertainable damages” (Pellegrino v File 291 AD2d 60, 63 [1st Dept 2002], lv denied 98 NY2d 606 [2002]). Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative (Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d 714, 716 [2d Dept 2022]).

Here, even accepting the facts as alleged as true, the complaint lacks sufficient factual allegations to support plaintiff’s contention that he would have succeeded in recovering his seized assets but for defendant’s alleged negligence (see Gopstein v Bellinson Law, LLC, 227 AD3d 465 [1st Dept 2024]). Plaintiff’s assertion that had defendant timely filed the petition, his money would have been returned to him, and that he would have only been penalized 10% for failing to declare his assets are wholly unsupported, conclusory and speculative. Further, plaintiff fails to rebut defendant’s contention that his forfeiture petition would not have been successful because plaintiff failed establish the source of the funds.”