Getty v Schiavetta 2024 NY Slip Op 50697(U) [83 Misc 3d 1212(A)] Decided on May 18, 2024 Supreme Court, Westchester County Ondrovic, J. is a claim of legal malpractice and violation of Judiciary Law 487. Portions of the case were dismissed and motions for default were denied.

“By way of background, pro se plaintiff commenced this action by filing a summons and complaint on September 24, 2023, to recover damages for alleged legal malpractice. The complaint asserts claims for legal malpractice and violation of Judicial Law § 487. Plaintiff alleges that defendants committed legal malpractice in their representation of plaintiff in prior litigations for damages stemming from mold contamination in plaintiff’s cooperative unit located in Port Chester, New York.^[FN1] The parties in the underlying litigations participated in private mediation and the litigations were settled by agreement in October 2020 (Settlement Agreement). Plaintiff alleges that he agreed to settlement terms on August 11, 2020, but defendants had “put plaintiff against a wall” and left “him with no choice but to agree to a different settlement” (i.e., the Settlement Agreement) (complaint at 4-5 [NYSCEF Doc. 1]).”

“Here, Russo defendants demonstrated that they were not properly served since Carroll was not authorized to accept service on behalf of Russo & Gould. Plaintiff failed to rebut Russo defendants’ showing with admissible evidence.^[FN4] To the extent plaintiff calls into question Carroll’s apparent authority to accept service, the Court in its discretion finds any error on Carroll’s part akin to law office failure and therefore Russo defendants’ default is excused (see CPLR 2005). Russo defendants also demonstrated potentially meritorious defenses, which plaintiff failed to substantively address beyond reasserting allegations from the complaint.

Furthermore, the relatively brief length in the delay in appearing (from purported service), Russo defendants’ efforts to secure from plaintiff an extension of time to respond, lack of prejudice to plaintiff, and the strong public policy in favor of resolving cases on the merits all inure to the benefit of Russo defendants.

Accordingly, plaintiff’s application for default judgment against Russo defendants is DENIED.”

“Here, the complaint fails to allege facts establishing proximate cause, namely, that the defendants in the prior litigations would have executed an agreement requiring them to pay more than what was agreed to in the Settlement Agreement or to additionally repair plaintiff’s cooperative unit at their own expense. Moreover, the complaint fails to allege fraud with any particularity (see CPLR 3016[b]; see Browne v Lyft, Inc., 219 AD3d 445, 447 [2d Dept 2023]; Shah v Mitra, 171 ADed 971, 976 [2d Dept 2019]). These deficiencies warrant dismissal of the legal malpractice claim pursuant to CPLR 3211(a)(7), but the latter deficiency is also fatal to plaintiff’s opposition to relief pursuant to CPLR 3211(a)(1) premised on plaintiff’s execution of the Settlement Agreement.

The Settlement Agreement, signed by plaintiff, includes the following representation attributed to plaintiff as the releasor:

Releasor hereby declares that the terms of this Release have been completely read and are fully understood and voluntarily accepted for the purpose of making a full and final settlement of any and all claims (exhibit B to Oxenburg affirmation, Settlement Agreement at 3 [NYSCEF Doc. 49] [emphasis added]).

Given that the Settlement Agreement declares plaintiff “voluntarily accepted” the terms of the agreement, absent a sufficient pleading of fraud, coercion, or inducement, the Settlement Agreement utterly refutes plaintiff’s factual allegations (Miller v Brunner, 164 AD3d 1228, 1231 [2d Dept 2018] [“A signed release shifts the burden of going forward . . . to the plaintiff to show that there has been fraud, duress or some other fact which will be sufficient to void the release” [internal quotation marks, brackets, and citation omitted]).

As to plaintiff’s Judiciary Law § 487 cause of action, “[a] violation of Judiciary Law § 487 requires an intent to deceive” (Guliyev v Banilov & Assoc., P.C., 221 AD3d 589, 591 [2d Dept 2023] [internal quotation marks and citation omitted]). “Allegations regarding an act of deceit or intent to deceive must be stated with particularity” (id. [internal quotation marks and citation omitted]).

Here, the complaint also fails to allege deceit or intent to deceive with any particularity, which necessitates dismissal of the Judiciary Law § 487 cause of action (see id.; DeMartino, 189 AD3d at 776 [dismissing Judiciary Law § 487 claims because only conclusory pleading of intent to deceive]).

Accordingly, Schiavetta defendants’ cross-motion for an order dismissing the complaint pursuant to CPLR 3211(a)(1) and (a)(7) is GRANTED, but as the dismissal is due to deficiencies in the pleading, the dismissal will be without prejudice (see Cadet-Duval v Gursim Holding, Inc., 147 AD3d 718, 720 [2d Dept 2017]).”

We have often argued that attorneys are given many dispensations in legal malpractice litigation that defendants in other professional negligence cases and in most litigation do not enjoy. Our colleagues in the legal defense bar don’t exactly disagree, but generally argue that the rules are fair. One item that no one disagrees with is that in order to have a good legal malpractice claim against a criminal defense attorney, the plaintiff must show “actual innocence as we see in Brooks v Winston & Strawn LLP 2024 NY Slip Op 33362(U) September 24, 2024 Supreme Court, New York County Docket Number: Index No. 159003/2021 Judge: Lisa S. Headley.

“On September 30, 2021, plaintiff, Jeffrey Brooks, filed this action as the acting personal representative of the decedent, David Brooks, against the decedent’s former attorneys, Gerald L. Shargel, Esq., Law Office of Gerald L. Shargel LLP and Winston & Strawn LLP ( collectively, “defendants”) for legal malpractice while representing the decedent, who was subject to federal grand jury investigations in 2006, and subsequently convicted in August 2010, following a trial, for fraud and obstruction to justice, and sentenced to a term of imprisonment, a fine, and a forfeiture motion judgment and restitution. The decedent died on October 27, 2016, while in federal custody. Specifically, the plaintiff alleges, inter alia, the defendants provided incorrect legal advice, and failed to represent the decedent with reasonable care, skill and diligence ordinarily exercised by attorneys specializing in the areas of law. Plaintiff asserts in the Complaint that the defendants held themselves out as experts in the field of federal grand jury investigations, and white-collar criminal defense, however they breached their fiduciary duty, inter alia, by failing to take action that would have exposed unlawful use of an expired grand jury by the Assistant United States Attorney prosecuting the federal criminal case against the decedent. Plaintiff is also seeking monetary damages for defendants’ legal malpractice, negligence, breach of fiduciary duty, and breach of contract. “

“To state a cause of action for legal malpractice arising from negligent representation in a criminal proceeding, plaintiff must allege his innocence or a colorable claim of innocence of the underlying offense for so long as the determination of his guilt of that offense remains undisturbed, no cause of action will lie. This requirement is central to the determination of causation in a cause of action for legal malpractice arising from a criminal proceeding. The client must show that the attorney was the proximate cause of his or her conviction.” See, Britt v. Legal Aid Soc., Inc., 95 N.Y.2d 443, 446 (2000) [internal citations omitted]. Here, the plaintiff’s Complaint fails to state a cognizable cause of action for professional malpractice and breach of contract. As it pertains to the legal malpractice claim, “[ d]ecisions regarding the evidentiary support for a motion or the legal theory of a case are commonly strategic decisions and a client’s disagreement with its attorney’s strategy does not support a malpractice claim, even if the strategy had its flaws.” Brookwood Companies, Inc. v. Alston & Bird LLP, 146 A.D.3d 662 (1st Dep’t 2017). To survive dismissal, the complaint must show that “but for counsel’s alleged malpractice, the plaintiff would not have sustained some actual ascertainable damages.” Franklin v. Winard, 199 A.D.2d 220 (1st Dep’t 1993) [internal citations omitted]. In addition, “it must be established that the attorney failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community. It must also be established that the attorney’s negligence was a proximate cause of the loss sustained, and that the plaintiff incurred damages as a direct result of the attorney’s actions.” Hwang v. Bierman, 206 A.D.2d 360 (2d Dep’t 1994) [internal citations omitted]. Furthermore, this Court finds plaintiff’s arguments do not prevail, and even if the defendants executed a different strategy, that would not have rendered the decedent a more favorable outcome in the criminal action. The decedent’s grievances or disappointment in the outcome of the criminal action handled by the defendants does not constitute legal malpractice. In addition, the defendants argue that the decedent’s guilty plea bars this action because the decedent did not have a “colorable claim of innocence.” “[W]hen a frustrated litigant complained of counsel’s omissions,’ [p ]lain tiffs remedy relies on prima facie proof that he would have succeeded'[.]” Pellegrino v. File, 291 A.D.2d 60, 63 (1st Dep’t 2002). Here, there is no dispute that the decedent pled guilty to certain charges and was found guilty on some charges after a jury trial. (See, NYSCEF Doc. No. 52). As such, the Court hereby dismisses the plaintiff’s legal malpractice cause of action.”

Chang v Yi Lin 2024 NY Slip Op 33338(U) September 20, 2024 Supreme Court, New York County Docket Number: Index No. 161222/2023 Judge: Mary V. Rosado is an not unusual legal malpractice claim in which it is unclear whether the attorney actually represented plaintiff (or whether he represented her husband only). Added to the factual mix is whether too much time has gone by already.

“This is a legal malpractice action. Plaintiff alleges Defendant represented her and her former husband in various real estate, immigration, and business-related matters (see NYSCEF Doc. 1 at ,i 3). Plaintiff alleges Defendant represented her former husband in a divorce proceeding (id. at ,i 15). Plaintiff further alleges that she consulted with Defendant prior to the divorce proceeding about her desire to divorce her husband. During the divorce proceeding, she believed Defendant was representing both her and her husband (id. at ,i 16). Plaintiff was allegedly never told she should seek independent counsel (id. at ,i 19). Allegedly, it was only after consulting with a separate attorney that Plaintiff learned Defendant made numerous misrepresentations to Plaintiff during the divorce proceedings, and there were assets omitted from the parties’ divorce agreement (id. at ,r,r 44-45). Plaintiff also alleges that pursuant to a 2020 telephone call from Defendant, she learned her name was not taken off certain marital liabilities.”

“A defendant who moves to dismiss based on the statute of limitations bears the initial burden of proving that the time to sue has expired (Lebedev v Blavatnik, 144 AD3d 24 [1st Dept 2022]). CPLR § 214(6) provides for a three-year period of limitations for legal malpractice claims. As held by the Court of Appeals, most legal malpractice claims accrue from the day an actionable injury occurs, even if the aggrieved party is ignorant of the wrong (McCoy v Feinman, 99 NY2d 295 [2002]; see also Flintlock Const. Servs., LLC v Rubin, Fiorella & Friedman, LLP, 188 AD3d 530 [1st Dept 2020]). Here, the alleged wrongs occurred during a divorce proceeding which was concluded in 2015 (see Zorn v Gilbert, 8 NY3d 933 [2007] [malpractice claim accrued, at the latest, when a judgment of divorce was entered in the underlying action]). The Complaint was not filed until November 15, 2023. Therefore, the claims related to the divorce are untimely. Although Plaintiff is correct the continuous representation doctrine tolls the statute of limitations, this doctrine is only applicable where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim (McCoy, supra at 306). Here, there are no facts alleging any representation as to the divorce proceedings after 2015, aside from an isolated telephone call in 2020. However, it is only alleged that on the November 2020 telephone call, Defendant called Plaintiff to have Plaintiffs name removed from an SBA loan and the deeds and mortgage for various properties in Pennsylvania. This telephone call, which is the only timely legal interaction between Plaintiff and Defendant, is by itself insufficient to state a legal malpractice claim.”

“Simply, there is no clear indicia of an ongoing, continuous, and dependent relationship between the client and attorney related to the divorce proceeding. There is only a conclusory and self-serving affidavit of Plaintiff which fails to list any conversations or ongoing legal work between Plaintiff and Defendant after the divorce proceeding and prior to the November 2020 telephone related to the underlying divorce proceeding (see NYSCEF Doc. 13). Therefore, the legal malpractice cause of action predicated on Defendant’s alleged representation of Plaintiff in her divorce proceeding is dismissed as time barred.”

After several go-rounds the matter of Prospect Capital Corp. v Morgan Lewis & Bockius LLP 2024 NY Slip Op 33322(U) September 19, 2024 Supreme Court, New York County Docket Number: Index No. 653941/2022 Judge: Margaret A. Chan is moving forward. Initially dismissed, then re-argued, the case turns on “the real harm “flowing from defendants’ alleged negligence was Prospect’s loss of [the Turnover Claim] cause of action and its distinct remedies, rather than its ability to obtain a more favorable economic result in the SVB Litigation after losing the turnover remedy” (NYSCEF # 90, Reargument Decision, at 6).”

More to the point of this blog post, plaintiff has been required to turn over its mediation statements and documents from the underlying US District Court case.

“The parties are now in discovery. Several months ago, Morgan Lewis filed a Rule 14 letter arguing that Prospect should produce its “mediation statements and other communications submitted in connection with Prospect’s efforts to resolve” the SVB Litigation (see NYSCEF # 113, Morgan Lewis R 14 Ltr, at 1). Prospect responded that it should not be made to produce the mediation statement because (a) doing so would violate Magistrate Judge Wang’s individual rules regarding confidentiality of communications during settlement, and (b) the court should adopt a “mediation privilege” that no court in New York has yet to accept (see NYSCEF # 114, Prospect R 14 Ltr). The court held a Rule 14 conference on May 8, 2024, at which it agreed with Morgan Lewis’s position that the mediation statements should be produced. However, Prospect asked for the right to appeal, hence, the parties were granted leave to bring this motion and were advised by this court that the decision would be consistent with the conference order (NYSCEF # 115, May 8 Conference Order). Morgan Lewis then filed an OSC and attached both parties’ Rule 14 letters as exhibits (NYSCEF #s 111-114) but did not file a brief in support.”

“Prospect’s mediation statement is relevant to the second prong because it is likely to either verify or challenge the assertion that Prospect could not prove causation or damages for the Section 1 Claim. The mediation statement likely sets out Prospect’s position and proposed proof for all elements of the Section 1 Claim. If Prospect was in fact able to prove causation and damages for that claim, then Prospect and SVB may have had other reasons for settling that were unrelated to the loss of the Turnover Claim, potentially cutting off the causal chain between negligence and damages.2 Moreover, as Morgan Lewis argues in its brief, the mediation statement likely contain facts about what other steps Prospect believed it could have taken in the Loan Workout Process, which also goes towards both causation (if Prospect was not actually relying on Morgan Lewis’s advice) and mitigation of damages (see NYSCEF # 128 at 6-7). In other words, Morgan Lewis does not seek the mediation statements merely for a simple monetary “set-off’ defense or “impeachment” purposes. It seeks to challenge essential elements of Prospect’s case: causation and damages-that Prospect was forced to settle the SVB Litigation because it could not prove causation or damages for the Section 1 Claim but would have won if the Turnover Claim was available. Indeed, the court has already referenced the necessity of this argument (see NYSCEF # 90 at 7 [“even if Prospect’s settlement is considered in the court’s causation analysis, the complaint’s allegations … support a reasonable inference that the eventual settlement of the SVB Litigation was effectively compelled by defendants’ mistakes”] [emphasis added]).”

“Finally, Prospect asks this court to create a so-called “mediation privilege” to protect documents and statements made during the parties’ mediation. Relying on federal case law, Prospect argues that the court should allow disclosure of mediation materials “only upon a showing of “(1) a special need for the confidential material, (2) resulting unfairness from a lack of discovery, and (3) that the need for the evidence outweighs the interest in maintaining confidentiality” (NYSCEF # 117 at 9, quoting In re Teligent, Inc., 640 F3d 53, 58 [2d Cir 2011]).

However, New York courts have not recognized a mediation privilege, and there is no reason to do so here. As recently as last year, courts in this state rejected such a privilege because “New York has not adopted the Uniform Mediation Act, and the New York Court of Appeals has not recognized a mediation privilege in New York” ( liXI Lux Holdco S.A R.L. v SIC Holdings, LLC, 79 Misc 3d 1223(A) [Sup Ct 2023]; see also Time Warner Cable Enterprises LLC v Nokia of Am. Corp., 83 Misc 3d 1254(A) [Sup Ct 2024] [rejecting argument that CPLR 454 7 creates a mediation privilege]). Those words remain as true today as they were a year ago; nothing has changed at the statutory or Court of Appeals levels. Prospect’s request to create a mediation privilege is denied. Morgan Lewis’s request for Prospect’s mediation statement is granted.”

We have often noted that real estate legal malpractice claims take up a large part of the New York legal malpractice world. FTF Lending, LLC v Mavrides, Moyal, Packman & Sadkin, LLP 2024 NY Slip Op 33115(U) September 6, 2024 Supreme Court, New York County Docket Number: Index No. 153620/2020 Judge: Margaret A. Chan is a prime example.

“Plaintiff FTF Lending, LLC (FTF) brings this action against defendants Mavrides, Moyal, Packman & Sadkin, LLP (MMPS) and Matthew Weinberger (Weinberger together with MMPS, defendants), asserting a claim for legal malpractice arising out of defendants’ representation of FTF in a loan transaction (the Loan Transaction) (NYSCEF # 1) .1 Before the court are (1) FTF’s motion, pursuant CPLR 3212, for summary judgment on its legal malpractice claim, and (2) defendants’ cross motion for summary judgment dismissing FTF’ s claim (NYSCEF #s 103, 130-131). For the following .reasons, both motions are denied.”

“Here, FTF has established the first element of its legal malpractice claim. At the outset, FTF has marshalled sufficient evident establishing that FTF had a duty to properly review the title report as part of its representation of FTF in the Loan Transaction. For example, FTF’s employees had understood and expected that MMPS would (1) draft and review all documents necessary to effectuate the Loan’s closing, including the Title Reports, (2) ensure that 2330 Dutch owned the Property, and (3) ensure that FTF was secured by a first-priority mortgage on the Property (see Rodak aff,r,r 14-16, 21; Kuclo tr 24:13-23, 31:17-22, 33:8-14, 125:3-126:18; Ferrante tr so:15-52:12). Packman and Weinberger, effectively corroborated FTF’s understanding by testifying that the responsibility of lender’s counsel was to “properly produce enforceable, recordable, and useful loan documents” and “to review the title report” (see Packman tr 39:14-23, 42:7-43:6, 57:13·16, 86:12-18; Weinberger tr 22=13·21, 40:2•15). FTF has further demonstrated that defendants breached that duty through their negligent conduct. As the record makes clear, the Title Reports were riddled with indicia of fraud-a fact that was only discovered by FTF after the Loan’s closing (see Pltf 19-a 11 25, 31; Defts 19-a 11 48·52; Rodak aff ,i,i 24-25). According to FTF’s expert, these discrepancies, as well as other anomalies with the Loan Transaction in general, should have, at minimum, caused defendants to have suspicion as to veracity of the documents that had been provided Borrowers and, in turn, triggered additional review, particularly given the importance of the title report in a typical real estate transaction (see Delshad aff 11 12, 14, 17, 16, 18·24 & exhs B & C). Yet neither defendants nor their legal staff · identified or flagged any issues with the Title Report to FTF prior to the Loan’s closing (see e.g., Packman aff 1 16). This failure to identify issues in the Title Report was seemingly accentuated by defendants’ lack of supervision over Lapka in her management of the Loan Transaction. Indeed, as Weinberger testified, she “should have noticed” the discrepancies in the Title Reports (see Weinberger tr 76:5-11). All told, these facts, considered in their totality, provide a sufficient basis to conclude that defendants’ representation of FTF fell below the ordinary and reasonable skill and knowledge commonly possessed by members of the profession (see Benitez v United Homes of N. Y., LLC, 142 AD3d 867, 867 [1st Dept 2016] [plaintiff made a prima facie showing of negligence where defendant “fail[ed] to advise that the subject property lacked a certificate of occupancy, fail[ed] to advise of the risk of funding the loan under these circumstances, and faiHed] to confirm that plaintiff’ met a condition of the loanD. In opposition, defendants fail to demonstrate the existence of material issues of fact on the issue of negligence or that FTF cannot otherwise meet this element of its claim. Defendants’ primary contention is that it had no duty to investigate, detect, eliminate, or rectify fraudulent activity or to otherwise be a guarantor of any particular result for FTF (see Defts 19-a ,i114, 16, 30, 54; Packman aff 1,i 11-12). Defendants’ self-serving attempt to narrow the scope of their duties are, however, belied by essentially unrefuted testimony in the record establishing that defendants were, in fact, responsible for ensuring FTF’s first-priority interest in the Property by, among other things, reviewing the title report (see Kuclo tr 24=13·23, 125:3-126=18; Packman tr 39:14-23, 86:12-18). The opinions set forth in the Hughes Report regarding defendants’ purported duties do not alter this conclusion. In fact, the Hughes Report seemingly corroborates the above conclusions by opining, based on his review of the record, that defendants had an obligation to “produce enforceable, recordable and useful loan documents” and “to review the title report” (see Hughes Report ,, 22, 28). Turning to the issue of proximate causation, FTF has made prima facie showing that defendants’ negligence was the “but for” cause of FTF’s damages. As various FTF employees have affirmed and/or testified, FTF’s decision to lend to Borrowers hinged on the security it felt it had in extending the Loan (see Pltf 19-a ,i 39; Rodak aff 11 18, 28; Kuclo tr 110: 13112:5; seealsoPackman tr 49:4-13). However, because the Loan Transaction did not, in fact, result in FTF obtaining a first-priority interest the Property, FTF was left without security for the Loan (Pltf 19-a ,r,r 25, 41; Defts 19-a ir,r 49·52; Rodak aff ,r 25; Packman tr 49:10-13). This was, of course, the precise security interest that both parties understood that defendants were working to secure through their review and approval of the Loan Transaction’s documents (see Rodak aff,r,r 14·16, 21; Ferrante tr 60:15-62:12; Packman tr 39:14-23, 86:12-18). Yet, despite the obvious errors in the Title Reports, defendants’ review failed to uncover any issues with the Title Reports or otherwise result in reasonable assurances that FTF would be protected in the event of a default following the Loan’s closing (see Delshad aff ,rir 12·27; Packman aff ,r 16). A trier of fact, when presented with this evidence, could reasonably conclude that “but for” defendants’ failure to identify and advise on these issues, FTF would have avoided entering into the Loan or otherwise haven taken remedial steps to protect itself in extending the Loan. Nevertheless, summary judgment in FTF’s favor is not warranted.4 The record undoubtedly supports a conclusion that defendants had a duty to properly review the Title Reports and ensure FTF’s security interest in the Property. But there is also evidence in the record that FTF had its own due diligence obligations as part of the Loan Transaction (see Term Sheet at 3-4; Defts 19·a ,r 86; Packman aff ,r,r 8·9). It was through this diligence that FTF seemingly obtained the credit reports and background checks identifying certain details about Samuels’s checkered financial history and potential liens/foreclosure actions on the Property (see Defts 19-a ,r,r 56[A], [D]-[E], 57; Rodak Reply aff ,r,r 6·10). Yet, despite being on notice of these issues-which seemingly conflicted with its own underwriting requirements for approving borrowers (see Hughes Report Ex. U)-FTF nevertheless approved the Loan. Presented with this evidence and testimony, a trier of fact could determine that, notwithstanding defendants’ negligent conduct, the proximate cause of FTF’s losses following Borrowers’ default was its own deficient diligence efforts (cf Garten v Shearman & Sterling LLP, 102 AD3d 436, 437 [1st Dept 2013] [affirming dismissal of complaint on summary judgment where defendant established that plaintiffs losses were caused by a borrower’s “poor financial condition” and plaintiffs “misjudgment of risk,” rather than defendant’s failure to prepare and procure documents necessary to provide plaintiff with a first-priority security interest]). As a result, although a close call, defendants proffered just enough evidence in admissible form to create a material issue of fact as to proximate causation. In sum, although FTF has established defendants’ negligence, material issues of fact on the issue of proximate causation preclude summary judgment. Accordingly, both motions are denied.”

Legal malpractice is always a comparison between the actual outcome and the hypothetical better outcome had the attorneys not departed from good practice. Courts often refuse to allow plaintiff to “prove” the hypothetical better outcome. While plaintiff can succeed where there has been a total shutout in the actual outcome (and can show that a reasonable jury would have awarded some recovery), here in Bei Yang v Pagan Law Firm, P.C. 2024 NY Slip Op 03394 [228 AD3d 547] June 20, 2024
Appellate Division, First Department the speculation was too great in trying to show that a reasonable jury would have awarded more than $ 1.3 million for the injuries.

“Defendants met their prima facie burden on a motion for summary judgment by submitting the affidavit of their legal expert, who averred that defendants did not depart from the applicable standard of care in prosecuting plaintiff’s medical malpractice action (see Orchard Motorcycle Distribs., Inc. v Morrison Cohen Singer & Weinstein, LLP, 49 AD3d 292 [1st Dept 2008]; see e.g. Merlin Biomed Asset Mgt., LLC v Wolf Block Schorr & Solis-Cohen LLP, 23 AD3d 243 [1st Dept 2005]). Defendants established that the decisions they made in that case were reasonable and strategic courses of action (see Orchard Motorcycle, 49 AD3d 292).

Plaintiff cannot show that, but for defendants’ negligence, she would have obtained a verdict after trial that exceeded the $1.3 million settlement amount defendants negotiated (see Gallet, Dreyer & Berkey, LLP v Basile, 141 AD3d 405 [1st Dept 2016]; see also Schloss v Steinberg, 100 AD3d 476 [1st Dept 2012]). Concur—Oing, J.P., Friedman, González, Rodriguez, O’Neill Levy, JJ. [Prior Case History: 75 Misc 3d 757.]“

Balta v Graner 2024 NY Slip Op 51273(U) Decided on August 28, 2024
Supreme Court, Kings County Rivera, J.

An attorney is hired to litigate a fire case. He files a Summons with Notice and then fails to serve a complaint when it is demanded. A motion to dismiss is granted on default. Opposition to the motion is late and several motions to vacate are denied.

A legal malpractice case is started. The Defendant appears pro-se. Is there insurance?

“Here, the defendant filed a notice of appearance on October 31, 2023 and on November 1, 2023. The defendant, however, neither interposed an answer to the complaint nor made a motion to dismiss the complaint. Consequently, the defendant waived any claim to lack of [*4]personal jurisdiction and the plaintiff is not required to prove service of the commencement papers upon the defendant.

To obtain a default judgment under these circumstances, the plaintiff must still file proof of the facts constituting the claim, the default, and the amount due by an affidavit made by the plaintiff. To demonstrate facts constituting the claim, the movant need only proffer proof sufficient to enable a court to determine that a viable cause of action exists (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]). The movant may do so either by submission of an affidavit of merit or by verified complaint, if one has been properly served (see id. at 70; see CPLR 3215 [f]).

Where a verified complaint has been served, it may be used as the affidavit of the facts constituting the claim and the amount due (see CPLR 105 [u]). The complaint in the instant action was not verified and therefore may not serve as an affidavit of the facts constituting the claim.

On April 11, 2024, plaintiff Yusuf Balta filed an affirmation setting forth the merits of plaintiffs’ claim. The affirmation of merit set forth a viable claim against the defendant for legal malpractice. Moreover, “[a] defaulting defendant ‘admits all traversable allegations in the complaint, including the basic allegation of liability, but does not admit the plaintiff’s conclusion as to damages'” (Commonwealth Land Title Ins. Co. v Islam, 220 AD3d 739, 741 [2d Dept 2023], quoting Castaldini v Walsh, 186 AD3d 1193, 1194 [2d Dept 2020], quoting Rokina Opt. Co. v Camera King, 63 NY2d 728, 730 [1984]). Plaintiffs’ motion papers established their entitlement to a default judgment against the defendant on the issue of liability on their claim for legal malpractice.

“Once the plaintiff has made such a showing, the defendant, in order to avoid entry of a default judgment, must show either that there was no default, or that [the defendant] has a reasonable excuse for its delay and a potentially meritorious defense” (Hersko v Hersko, 224 AD3d 810, 812 [2d Dept 2024], quoting Pemberton v Montoya, 216 AD3d 988, 989 [2d Dept 2023]). “The determination as to whether an excuse is reasonable is committed to the sound discretion of the motion court” (Hersko, 224 AD3d at 812, quoting Deutsche Bank Natl. Trust Co. v Allenstein, 201 AD3d 783, 786 [2d Dept 2022].”

“The defendant’s opposition papers did not provide an excuse or an explanation for not interposing an answer to the complaint. Defendant has argued that plaintiffs improperly served the commencement papers and therefore defendant is not in default. That argument was rendered meritless by the defendant’s filing of a notice of appearance (Ming Xue Xir v 422 Sunshine Ct., LLC, 227 AD3d 980, 982 [2d Dept 2024]). The defendant also made a vague and unsubstantiated claim of illness. However, the defendant’s claim of illness was not offered as an explanation for not answering the complaint. Thus, it is unnecessary to consider whether the defendant sufficiently demonstrated the existence of a potentially meritorious defense to the action (HSBC Bank USA, N.A. v. Daniels, 163 AD3d 639, 640-641 [2d Dept 2018]). The plaintiffs’ motion is granted, and the plaintiffs may continue to prosecute their claim on the issue of damages.”

Poquee v Wheldon 2024 NY Slip Op 51245(U) Decided on September 5, 2024 Supreme Court, Albany County, Hartman, J., restates the well settled (and perhaps unfair) rule that a criminal defendant has no good claim against the defense attorney absent “actual innocence” which generally means acquittal, exoneration or reversal on appeal.

Practitioners get a large volume of calls asking whether the criminal defense attorney can be sued, accompanied with specific shortcomings of the attorneys. Sadly, the answer is almost always a categorical “no.”

“In this legal malpractice action, defendants John Wheldon, Esq., individually and as Assistant Public Defender for the County of Albany, and the County of Albany (defendants),^[FN1] move pre-answer to dismiss the amended complaint pursuant to CPLR 3211 (a) (5) and (a) (7). Plaintiff opposes. For the reasons that follow, defendants’ motion is granted, and the action is dismissed with prejudice.”

“It is well established that “[t]o state a cause of action for legal malpractice arising from negligent representation in a criminal proceeding, [a] plaintiff must allege [the additional element of] his innocence or a colorable claim of innocence of the underlying offense” (Carmel v Lunney, 70 NY2d 169, 171 [1987]; see Britt v Legal Aid Soc., Inc., 95 NY2d 443, 445 [2000]; Shields v Carbone, 78 AD3d 1440, 1443 [3d Dept 2010]). But “so long as the determination of his guilt of that offense remains undisturbed, no cause of action will lie” (Carmel, 70 NY2d at 171). Said another way, “[i]t is only when the criminal proceeding has been terminated without a conviction that a plaintiff can assert innocence or at the very least a colorable claim thereof” (Britt, 95 NY2d at 448 [2000]).

Plaintiff’s amended complaint makes no allegation of innocence. And it is undisputed that plaintiff entered a guilty plea, which remains undisturbed, in satisfaction of the underlying charges once his initial conviction after trial was vacated on the ground of ineffective assistance of counsel. Under these circumstances, plaintiff’s undisturbed “plea of guilty in the criminal proceeding bars recovery for legal malpractice allegedly committed by the defendant[s] in that proceeding” (Kaplan v Sachs, 224 AD2d 666, 667 [2d Dept 1996], appeal dismissed & lv denied 88 NY2d 952 [1996]; see Britt, 95 NY2d at 448; Carmel, 70 NY2d at 171; Shields, 78 AD3d at 1443; cf. Arnold v Devane, 123 AD3d 1202, 1203 [3d Dept 2014]). Moreover, plaintiff fails to advance any compelling reason to depart from the long-standing “policy considerations [that] require different pleading and substantive rules” in legal malpractice actions arising from representation in criminal proceedings (Carmel, 70 NY2d at 173 [citation omitted]).

And “the fact that the alleged malpractice neither induced nor otherwise had any causal effect on the plaintiff’s ultimate conviction, and instead allegedly caused plaintiff to remain in prison longer than necessary, has no bearing on the elements of a cause of action, as public policy prevents the maintenance of a malpractice action where the plaintiff cannot assert his innocence” (Rosado v Legal Aid Socy., 12 AD3d 356, 357 [2d Dept 2004]; see Boomer v Gross, 34 AD3d 1096, 1096-1097 [3d Dept 2006]; Biegan v Paul K. Rooney, P.C., 269 AD2d 264, 265 [1st Dept 2000]; Malpeso v Burstein & Fass, 275 AD2d 476, 477 [1st Dept 1999]). Plaintiff’s argument that this is a unique case warranting an exception to the rule of Carmel v Lunney is unavailing.”