Puccio v Hoffman, Wachtell & Rao, LLP 2026 NY Slip Op 05122 August 26, 2026

Appellate Division, Second Department is a legal malpractice case based upon a worker’s compensation claim which did not go well. The Appellate Division affirmed on the basis of “not inconsequential” claims

“In January 2024, the plaintiff commenced this action against the defendants, former counsel to the plaintiff in a workers’ compensation matter, inter alia, to recover damages for legal malpractice. Thereafter, the defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. The plaintiff opposed the defendants’ motion. In an order dated November 21, 2024, the Supreme Court denied the defendants’ motion. The defendants appeal.

“To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Berger v Lewis Johs Avallone Aviles, LLP, 232 AD3d 840, 841 [internal quotation marks omitted]; see Georgica Bldrs., Ltd. v 136 Bishops Lane, LLC, 175 AD3d 610, 611). On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must afford the complaint a liberal construction, accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88; Berger v Lewis Johs Avallone Aviles, LLP, 232 AD3d at 841).

“To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (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” (Ofman v Richland, 234 AD3d 865, 868 [internal quotation marks omitted]; see Bernstein v Jacobson, 238 AD3d 1102, 1103-1104). To establish causation in a legal malpractice action, “a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; see Kowalski v Gold Benes, LLP, 232 AD3d 869, 870).

Here, the Supreme Court properly determined that the defendants’ undisputed documentary evidence, including an order of the Appellate Division, Third Department, did not utterly refute the plaintiff’s factual allegations. The defendants did not conclusively establish that, under the circumstances, the defendants’ alleged failures were inconsequential to the disallowance of the plaintiff’s workers’ compensation benefits claim (see Garcia v Polsky, Shouldice & Rosen, P.C., 161 AD3d 828, 830; Harris v Barbera, 96 AD3d 904, 905).

Moreover, the Supreme Court properly determined that, accepting the facts alleged in the complaint as true and according the plaintiff the benefit of every possible favorable inference, the plaintiff sufficiently alleged that “a more favorable outcome in his workers compensation claim would have been reached” but for the defendants’ alleged failure to properly represent him (see Bernstein v Jacobson, 238 AD3d at 1104; Berger v Lewis Johs Avallone Aviles, LLP, 232 AD3d at 841).”

Salas v. 711-715 E. 231st St., LLC , Appellate Division, First Department, Decided August 20, 2026, 2026 NY Slip Op 05064 shows both sides of a decision dismissing a Judiciary Law 487 claim. With a two-judge dissent, it may well go to the Court of Appeals.

Holding: “Order, Supreme Court, Bronx County (Andrew J. Cohen, J.), entered September 11, 2025, which denied the motions of third-party defendants Roytblat Law Group, PLLC and Alexander Roytblat (collectively, Roytblat) and Jennifer Lebron to dismiss the third-party complaint as against them, reversed, on the law, without costs, and the motions granted. The Clerk is directed to enter judgment accordingly.

Defendants/third-party plaintiffs failed to demonstrate “a showing of egregious conduct or a chronic and extreme pattern of behavior on the part of” Roytblat, or demonstrate that deliberate misrepresentations necessary to sustain a Judiciary Law § 487 claim were made to defendants and the court (Facebook, Inc. v DLA Piper LLP [US], 134 AD3d 610, 615, 23 N.Y.S.3d 173 [1st Dept 2015] [internal quotation marks omitted], lv denied 28 N.Y.3d 903, 40 N.Y.S.3d 351, 63 N.E.3d 71 [2016]). The third-party complaint failed to plead in a nonconclusory manner that Roytblat continued to advance the underlying trip-and-fall claim after receiving information indicating that the [*2]  claim was fraudulent (cf. Schnur v Balestriere, 208 AD3d 1117, 1118, 175 N.Y.S.3d 50 [1st Dept 2022]).”

Dissent: “The third-party complaint adequately meets the heightened pleading standard for a claim under Judiciary Law § 487. It alleges [*4]  that video evidence appears to show Wilson Pena, a third-party defendant who concededly performs investigative services for Roytblat, deliberately creating the sidewalk defect at issue in the underlying personal injury action. Plaintiff also appears in the video to feign a trip-and-fall accident caused by the defect. The video evidence, links to which were included in the third party complaint, supports this allegation. The complaint further alleges that defendants’ attorney informed Roytblat in February 2024 that the underlying personal injury claim that Roytblat was pursuing was fraudulent, and that video evidence existed showing fabrication of the sidewalk defect and staging of the accident. Despite having knowledge of the fraud, Roytblat continued to pursue the litigation over the following months and sought to discontinue the action only when informed that a news report concerning the fraud was about to air. Defendants set forth detailed allegations regarding the timing and sequence of communications and filings, identifying with specificity the litigation documents Roytblat purportedly continued to submit after the alleged notice date. The majority fails to demonstrate why such [*5]  allegations are conclusory and insufficient to establish a § 487 claim.

 [**3]  Although documentary proof of the notification that Roytblat allegedly received from defendants is not in the record, a § 487 claim does not require documentary proof of scienter in order to survive dismissal; rather, where the pleading sufficiently alleges intent to deceive the court or a party, dismissal is proper where documentary evidence conclusively refutes allegations of intent (see Schnur v Balestriere, 208 AD3d 1117, 1118, 175 N.Y.S.3d 50 [1st Dept 2022]). Here, there is no documentary evidence negating the allegation that defendants sent and Roytblat received the February 2024 communication. Nor does the record contradict the claim that Roytblat continued filing documents after receiving that notice. Thus, unlike in Facebook, where documents disproved the alleged timing of the attorneys’ knowledge, there is no conclusive refutation in this record (134 AD3d at 615).

Taken as true, these allegations constitute egregious and intentional conduct on the part of Roytblat (see Schnur, 208 AD3d at 1118). Accordingly, I would hold that defendants/third-party plaintiffs have adequately pleaded a § 487 claim, and dismissal at this juncture is not warranted.”

That’s the successful defense offered by the attorneys in Rosenthal v Liberty Mut. Ins. Co.

2026 NY Slip Op 05043 August 19, 2026 Appellate Division, Second Department against a client’s claim that they allowed the statute of limitations to pass. The defense succeeded.

“In October 2019, the plaintiff commenced this action against the defendants James A. McGlynn and The Law Office of James A. McGlynn, LLC (hereinafter together the defendants), among others, inter alia, to recover damages for legal malpractice the defendants allegedly committed in their representation of the plaintiff in connection with her dispute with the defendant Liberty Mutual Insurance Company (hereinafter Liberty), the holder of her homeowners’ insurance policy (hereinafter the policy). The plaintiff alleged that the defendants failed to commence an action against Liberty within two years of the date of loss, as required by the policy. The defendants asserted a counterclaim to recover damages for breach of contract, alleging unpaid legal fees, and moved for summary judgment dismissing the amended complaint insofar as asserted against them and on their counterclaim. The plaintiff cross-moved, among other things, for summary judgment on the issue of liability on the legal malpractice cause of action and dismissing the defendants’ counterclaim. In an order entered February 15, 2024, the Supreme Court, inter alia, granted the defendants’ motion and denied those branches of the plaintiff’s cross-motion. On March 13, 2024, the court entered a judgment in favor of the defendants and against the plaintiff dismissing the amended complaint insofar as asserted against the defendants and in the principal sum of $7,740 on the defendants’ counterclaim. The plaintiff appeals.”

“Here, the defendants established, prima facie, that they did not fail to exercise the skill and knowledge commonly possessed by a member of the legal profession and that it was the plaintiff’s own inaction and failure to communicate with the defendants that prevented the filing of a timely lawsuit against Liberty (see Feldman v Finkelstein & Partners, LLP, 131 AD3d 505, 506; Pedote v Kelly, 124 AD3d 855, 856). The defendants further established, prima facie, that any alleged malpractice on their part did not proximately cause the plaintiff’s damages, as she failed to comply with the conditions set forth in the policy and would not have prevailed in her action against Liberty even if timely commenced (see Dodenc v Dell & Dean, PLLC, 235 AD3d 623, 624; Buczek v Dell & Little, LLP, 127 AD3d at 1123; Valley Ventures, LLC v Joseph J. Haspel, PLLC, 102 AD3d at 956). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the amended complaint insofar as asserted against them.

The Supreme Court also properly granted that branch of the defendants’ motion which was for summary judgment on their breach of contract counterclaim. “To recover damages for breach of contract, a plaintiff must demonstrate the existence of a contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of its contractual obligations, and damages resulting from the breach” (Ben Ciccone, Inc. v Naber Elec. Corp., 214 AD3d 936, 937-938 [internal quotation marks omitted]; see Dean Bldrs. Group, P.C. v M.B. Din Constr., Inc., 186 AD3d 1612, 1614). Here, the defendants submitted, inter alia, the retainer agreement between the plaintiff and the defendants, invoices from the defendants to the plaintiff for legal services rendered, and a transcript of the plaintiff’s deposition testimony, in which she testified that she failed to pay the outstanding invoices. The defendants also submitted evidence establishing that they performed under the retainer agreement by, among other things, representing the plaintiff at her examination under oath and communicating with Liberty regarding the plaintiff’s insurance claim. These submissions were sufficient to demonstrate the defendants’ prima facie entitlement to judgment as a matter of law on their breach of contract counterclaim (see McAllister v Wayside Out-Reach Dev., Inc., 241 AD3d 539, 540; O’Keefe v Barra, 215 AD3d 1039, 1041; Finger & Finger, A Professional Corp. v Buckingham Owners, Inc., 165 AD3d 887, 888). In opposition, the plaintiff failed to raise a triable issue of fact.”

In MVP Delivery and Logistics, Inc. v. Brown Chiari LLP. , Sup. Ct. Erie, 8/4/2026, we see an unusual denial of a motion to dismiss a complicated attorney malpractice and Judiciary Law 487 case.

“Defendants Brown Chiari LLP, James E. Brown, Esq., Donald P. Chiari, Esq., and Angelo S. Gambino, Esq. (collectively, “Defendants”) move, pursuant to CPLR 3211(aX1) and (aX7), to dismiss the Amended Complaint of Plaintiff MVP Delivery and Logistics, lnc. (“MVP” or “Plaintiff’) in its entirety. Plaintiff opposes. Having read and considered NYSCEF Documents 41- 58,61-65, and oral argument having been heard on June 10, 2026, Zaid Shukri, Esq., appearing for the Plaintiff, and Anthony Rupp, Esq., appearing for the Defendants, and for the reasons set forth below, the motion is DENIED.”

“On July 7, 2004, a motor vehicle owned by MVP and driven by an MVP employee fatally injured Claudia Carlson. The 2004 accident resulted in a multi-million-dollar judgment against MVP and co-defendants in favor of the Estate of Claudia Carlson, which was represented by Brown Chiari LLP. Subsequent to the verdict, a series of related cases in Erie, Niagara and New York County were commenced in which MVP was a party: (1) National Union Fire lnsurance Company of Pittsburgh, PA v. MVP Delivery and Logistics, lnc. (Erie County lndex No.i 814289/2015) seeking a declaratory judgment on indemnification; (2) MVP DELIVERY AND LOGISTICS, INC v. American lnternational Group, lnc., et al. (New York County lndex No.: 650882/2016; Niagara County lndex No. E169030/2019) seeking a declaratory judgment on MVP’s insured status; and (3) MVP DELIVERY AND LOGISTICS, INC et al v. Goldberg Segalla, LLP (New York County lndex No.: 15752412016, seeking damages for legal malpractice. During the pendency of each ofthe above related actions, Defendant Goldberg Segalla came to represent MVP in each.”

“To establish a cause of action for legal malpractice, a plaintiff must prove “(1) that the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, (2) proximate cause, (3) damages, and (4) that the plaintiff would have been successful in the underlying action had the attorney exercised due care” (Santaro v Finocchio,221 AD3d 1489, 1490 [4th Dept 20231) The Amended Complaint alleges, with sufficient particularity, that Defendants concealed a conflict of interest arising from their concurrent representation of Carlson, MVP’s judgment creditor; discontinued MVP’s malpractice action against Goldberg Segalla with prejudice, without MVP’s informed consent and without any investigation of its merits; and thereafter coerced MVP into a nuisance-value settlement of its insurance coverage claims to protect Carlson’s competing recovery.

These allegations, accepted as true, are sufficient to allege a breach of the duties of care and loyalty and to permit a reasonable inference of resulting damages, including the lost value of the discontinued malpractice claim and a diminished settlement of the coverage claims Defendants’ contention that prior judicial rulings establish, as a matter of law, that MVP’s and Carlson’s interests were identical is not borne out by the rulings themselves, which addressed venue, consolidation, and overlapping issues rather than an identity of legal interests, and in any event presents, at most, a question of fact not resolvable on this motion.

Judiciary Law $ 487
The Amended Complaint likewise states a claim under Judiciary Law $ 487, which
imposes treble damages on an attorney who “is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.” Defendants argue that the Amended Complaint alleges nothing more than ordinary negligence or dissatisfaction with litigation strategy, which does not rise to the level of deceit required under the statute. The Court disagrees. The Amended Complaint alleges a course of intentional, affirmative misconduct directed at MVP, specifically that Defendants concealed their conflict of interest arising from their concurrent representation of Carlson; falsely assured MVP that Brown Chiari would act in MVP’S best interests while its true intent was to protect Carlson’s competing recovery; misrepresented to MVP that its malpractice claim against Goldberg Segalla was meritless, and concealed from MVP both the discontinuance of its malpractice action and the terms of the settlement negotiations it was being pressured to accept.

These are not allegations of mere strategic disagreement or negligent mis.iudgment; if true, they describe knowing, affirmative misrepresentations and concealment undertaken to benefit Defendants and their other client at MVP’s expense, which is sufficient to state a claim under Judiciary Law s 487 at the pleading stage (see Armstrong v Blank Rome LtP, 126 AD3d 427 , 427-28 [1st Dept 2015).”

Nicalaou v Ranalli 2026 NY Slip Op 04777 July 29, 2026 Appellate Division, Second Department illustrates the basic proofs necessary to demonstrate continuing representation.

“The defendants, Ernest R. Ranalli and Ranalli Law Group, PLLC, Ranalli’s law firm, represented the plaintiff, Sotiris Nicalaou, during a portion of the pendency of an action to foreclose a residential mortgage that was commenced in 2013 against Nicalaou, among others (hereinafter the mortgage foreclosure action). A judgment of foreclosure and sale was entered against Nicalaou in the mortgage foreclosure action on June 27, 2017, and the subject property was sold at a foreclosure auction on December 4, 2018. On January 19, 2024, Nicalaou commenced this action against the defendants to recover damages for legal malpractice arising out of the representation they provided to him in connection with the mortgage foreclosure action. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint on the ground, inter alia, that the action was time-barred. In an order entered October 11, 2024, the Supreme Court granted the defendants’ motion. Nicalaou appeals.”

“”The continuous representation doctrine serves to toll the statute of limitations and render timely an otherwise time-barred cause of action for legal malpractice, but ‘only where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim'” (King Tower Realty Corp. v G & G Funding Corp., 163 AD3d 541, 543, quoting McCoy v Feinman, 99 NY2d 295, 306; see Joseph v Fensterman, 204 AD3d 766, 769). “For the continuous representation doctrine to apply, ‘there must be clear indicia of an ongoing, continuous, developing, and dependant relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice'” (Potenza v Giaimo, 165 AD3d 1186, 1187, quoting Luk Lamellen U. Kupplungbau GmbH v Lerner, 166 AD2d 505, 506-507).

“‘An action to recover damages arising from legal malpractice must be commenced within three years, computed from the time the cause of action accrued to the time the claim is interposed'” (Joseph v Fensterman, 204 AD3d at 769 [internal quotation marks omitted], quoting Schrull v Weis, 166 AD3d 829, 831; see CPLR 214[6]). “‘A legal malpractice claim accrues when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court'” (King Tower Realty Corp. v G & G Funding Corp., 163 AD3d at 543 [internal quotation marks omitted], quoting McCoy v Feinman, 99 NY2d at 301; see Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d 1085, 1086). Here, the defendants satisfied their initial burden by demonstrating that the cause of action alleging legal malpractice accrued, at the latest, in December 2018, and that the instant action was commenced in January 2024, more than three years later (see Wells Fargo Bank, N.A. v Leopold & Associates, PLLC, 238 AD3d at 1196; King Tower Realty Corp. v G & G Funding Corp., 163 AD3d at 543).”

“Nicalaou’s submissions failed to demonstrate that any damages were incurred after the subject property was sold at a foreclosure auction on December 4, 2018, or that the defendants performed any legal services for Nicalaou with respect to the mortgage foreclosure action after the sale (see id.; King Tower Realty Corp. v G & G Funding Corp., 163 AD3d at 544; Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d at 1087). “

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 Mrkulic 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).”