Irony abounds in the legal malpractice world. Missteps in legal malpractice litigation are not that rare. Here an appeal was dismissed for lack of a transcript.

“In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Queens County (Carmen R. Velasquez, J.), entered August 21, 2023. The order, insofar as appealed from, after a hearing to determine the validity of service of process, granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the appeal is dismissed, without costs or disbursements.

CPLR 5526 provides, inter alia, that “[t]he record on appeal from an interlocutory judgment or any order shall consist of the notice of appeal, the judgment or order appealed from, the transcript, if any, the papers and other exhibits upon which the judgment or order was founded and any opinions in the case.” “It is the obligation of the appellant to assemble a proper record on appeal” (Bruzzese v Bruzzese, 203 AD3d 1007, 1010). “Appeals that are not based upon complete and proper records must be dismissed” (Garnerville Holding Co. v IMC Mgt., 299 AD2d 450, 450).

Here, the appellant failed to include, in the record on appeal, the transcript of the hearing that was held before the Supreme Court to determine the validity of service of process. The omission of the transcript inhibits this Court’s ability to render an informed decision on the issues raised by the appellant. Accordingly, the appeal must be dismissed (see Rene v Abrams, 193 AD3d 1001; Clarke v Clarke, 90 AD3d 690, 691; Garnerville Holding Co. v IMC Mgt., 299 AD2d at 450).”

Ellen’s Stardust, Inc. v Sturm 2025 NY Slip Op 30488(U) February 6, 2025 Supreme Court, New York County Docket Number: Index No. 651690/2021 is a short and direct decision by Judge: Andrew Borrok In it he merely quotes an interim AD decision about the second amended complaint to demonstrate that a motion against the third amended complaint is unwarranted.

“Reference is made to a Decision and Order of the Appellate Division (NYSCEF Doc. No. 131), dated April 4, 2024, which provided that the plaintiffs stated a cause of action sounding in accounting malpractice and aiding and abetting fraud where the scope of representation was limited to compilation services and the amount of the alleged harm was disclosed in the financial statements because the movant was alleged to be on notice of the potential fraudulent conduct and participated in it:

“We find that the claims for accounting malpractice and aiding and abetting fraud
should not have been dismissed pursuant to CPLR 3211(a)(7) and CPLR 3211(a)(1). A
motion pursuant to CPLR 3211(a)(1) to dismiss a complaint or petition on the ground that a defense is founded on documentary evidence may be appropriately granted where the documentary evidence utterly refutes the plaintiff’s or petitioner’s allegations conclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).”

“Thus, the defendants are not correct that they are entitled to dismissal of the causes of action sounding in malpractice (fourth cause of action) or aiding and abetting fraud (fifth cause of action).
It simply does not matter that previously the plaintiff was formerly known as 1650 Broadway or when the alleged fraudulent underlying conduct took place given when it is alleged to have been revealed.
The Court has considered the parties’ remaining arguments and finds them unavailing.”

HOF I Grantor Trust 5 v YLW Squared Inc. 2025 NY Slip Op 30681(U) February 26, 2025 Supreme Court, Kings County Docket Number: Index No. 531361/22 Judge: Lawrence Knipel is a mess. A foreclosure granted on default, late and multiple motions to vacate, a novel and intentional attempt to get around word limits in motions and a host of fraud claims all end in a motion denying the owners any relief.

“Upon the foregoing papers in this action to foreclose a commercial mortgage encumbering the property at 53 Madison Street in Brooklyn (Property). non-party Leon Watson (Watson), a self-represented litigant and a 50% shareholder in the corporate borrower defendant. YLW Squared Inc. (YL W Squared or Defendant Borrower), moves (in motion sequence [mot. seq.] four), by order to show cause (OSC), for an order: (1 )staying the foreclosure auction of the Property that was scheduled on June 13, 2024; 1 (2) vacating the February 29, 2024 judgment of foreclosure and sale,2 pursuant to CPLR 317, 5015 (a) (1), 5015 (a) (4), 1001 and in the substantial interest of justice; (3) vacating the June 6. 2023 order of reference. pursuant to CPLR 317, 5015 (a) (1). 5015 (a) (4). 1001 and in the substantial interest of justice; ( 4) dismissing this action for lack of personal jurisdiction, pursuant to CPLR 3211 (a) (8); and (5) awarding defendants actual, compensatory, punitive, statutory and treble damages (NYSCEF Doc No. 81 ). Defendant and guarantor of the mortgage. Yvonne Williams (Defendant Guarantor or Williams), a self-represented litigant, moves (in mot. seq. five), by OSC, for the identical relief that Watson seeks (NYSCEF Doc No. 82). Watson also moves (in mot. seq. seven) for an order: (1) granting him leave to intervene in this action: (2) vacating any default judgment entered against Defendant Borrower YL W Squared; and (3) dismissing the complaint as against YL W Squared (NYSCEF Doc No. 159). YL W Squared moves (in mot. seq. eight) for an order. pursuant to CPLR 5015 vacating any and all default judgments entered against it and Yvonne Williams and dismissing the complaint (NYSCEF Doc No. 247). Defendant YL W Squared also redundantly moves (in mot. seq. nine) for an order:

“dismissing the complaint, vacating all orders issued in this matter, for an order pursuant to CPLR § 5015 vacating any and all default judgments entered against (it] and Yvonne Williams. Dismissing the Summons and Complaint on the grounds that the pleadings were improperly served and verified by an attorney, and/or based on procedural and substantive deficiencies, including lack of standing, fraud, improper service, and lack of jurisdiction” (NYSCEF Doc No. 267).

After YL W Squared was “denied permission to submit an oversized brief . . ., ” defense counsel claims that she ·’was forced to proceed , with multiple motions so that the Court would be presented with the facts … ” (NYSCEF Doc No. 331 at, 3). YLW Squared moves in three separate motions (mot. seq. l 0, 11 and 12) for the identical relief previously sought in motion sequences eight and nine…”

“Plaintiff and its counsel at Deutsch & Schneider LLP cross-move (in mot. seq. 16) for an order: ( 1) awarding treble damages incurred by Plaintiff and its counsel as against defense counsel Theresa Gedeon for her violation of Judiciary Law§ 487: (2) awarding Plaintiff reasonable attorneys’ fees, pursuant to Part 130, incurred in responding to 11 frivolous post-judgment motions filed by YI ,W Squared, Williams and Watson.”

“Defense counsel further argues that Williams’ signature was forged on the promissory note (NYSCEF Doc No. 248 at~ 15 ). Williams, however, inconsistently admits (in an affidavit submitted in support of mot. seq. five) that she and Watson, as shareholders of YL W Squared, hired a loan consultant and ‘·secured financing for the purchase of 53 Madison Street through Insula … ” (NYSCEF Doc No. 86 at ~,,r 15-17). Defense counsel’s assertion that the loan documents were forged is unavailing since Williams admits that she and Watson knowingly obtained financing for YLW Squared’s purchase of the Property. The claim of forgery for the first time at this late juncture is indeed suspect. especially since Williams and YL W Squared do not deny that Williams made interest payments on the loan. In conclusion. neither YL W Squared and its counsel. nor Williams, provided any valid legal or factual ground to vacate their appearance defaults, the order of reference or the judgment of foreclosure and sale. Consequently, the motions to vacate and dismiss filed by Williams and YL W Squared in mot. seq. five and eight are denied, and the redundant and duplicative motions seeking the identical relief (mot. seq. nine, 10, 11 and 12) are denied as moot.”

“While YL W Squared and its counsel admittedly filed duplicitous motions for the same relief in an effort to circumvent this court’s denial of its request to submit oversized moving papers, the court, in its discretion, denies Plaintiffs cross-motion for the imposition of Part 130 sanctions. Defense counsel is admonished, however, that sanctions may be imposed ifYL W Squared continues with vexatious litigation and repetitive motions seeking the same relief to further delay the final stage of these proceedings. This court has reviewed the voluminous papers submitted by the parties and the redundant arguments that were previously raised, considered and rejected by this court. The court has also considered the merits of the remaining motions filed by the parties, including what appears to be a motion for a protective order.for defense counsel based on an unrelated prior action involving her former employer, a motion to disqualify Plaintiffs counsel and for the imposition of Part 130 sanctions against Plaintiffs counsel. The forgoing motions are each denied, as they have no merit and seem to have been filed in an obvious attempt to delay a foreclosure sale of the Property.”

Sanders Equities LLC v Maldonado 2025 NY Slip Op 30694(U) March 3, 2025 Supreme Court, Nassau County Docket Number: Index No. 605681/2022 Judge: Sharon M.J. Gianelli is the rare story of an apparently pro-se attorney defendant having his answer stricken in a legal malpractice case.

“By the Court’s most recent Decision and Order, dated October 7,2024, and entered October g,2cl24 (Mot. Seq. No. oo4; Attachment *r), the Court denied Plaintiffs’ motion to strike, but granted Plaintiffs leave to re-apply should Defendants Maldonado and the Firm fail to comply with the Court’s Decision and Order directing Defendants Maldonado and the Firm to fully comply with all outstanding discovery concerning this matter within thirfy (go) days from the date of entry of the October 9,2c.24 Decision and Order. Plaintiffs have filed this motion (Mot. Seq. No. oo5) asserting that Defendants Maldonado and the Firm have failed to comply with the Court’s October g,2oo24 Decision and Order (Mot. Seq. No. oo4).

Defendants Maldonado and the Firm’s only response to Mot. Seq. No. oo5 is a letter from Defendant Kevin Maldonado, dated January 29,2o2S (Attachment #z), in which he requests that the Court consider it his opposition to Plaintiffs’ Mot. Seq. No. oo5, and which states in pertinent part”

Dear Judge Gianelli:

Plaintiffs have filed a motion (Motion Seq. S), to renew the Motion to Preclude (Motion Seq. 4). My opposition to Motion Seq. 4 is filed at Docket Entries to5 and to6. These entries have been sealed by the Court. Please accept Docket Entries 105 and 106, as well as my letter to the Court dated January 11, 202S (attached hereto) as my opposition to the renewedmotion. Thank you for your consideration of this request. Sincerely, /s KeutnMaldonado

Despite his assertion that “Docket entries ro5 and 106” are sealed, Defendant Kevin Maldonado and the Firm failed to provide along with this January 29,202S letter, the documents entered under “Docket Entries 1O5 and 106″, which are Defendant Maldonado and the Firm’s documents. Further, no attached letter dated January tt, 2o21was found.”

“Defendants Maldonado and the Firm have not only been afforded numerous opportunities to comply with the Court’s Orders, including three (g) final warnings, Defendants Maldonado and the Firm have repeatedly and intentionally failed to comply, without reasonable explanation. An assessment of Defendants Maldonado and the Firm’s actions to date lead to the reasonable conclusion that the conduct is intentional, deliberate, evasive, uncooperative, designed to delay and avoid, and “willful and contumacious”.

“ORDERED, that Plaintiffs’motion (Mot. Seq. No. oo5) for an Order of the Court granting Plaintiffs leave to renew the Decision and Order of the Court, dated October 7, 2024, and entered October g,2c.24 (Mot. Seq. No. oo4), to the ertent it denied Plaintiffs’ motion to strike the Answer to Amended Complaint, Counterclaims, and Third-Parry Complaint, filed September 8,2c.29, of Defendants Kevin Maldonado (“Maldonado”), and Kevin Maldonado and Associates, P.C. d/b/a Kevin Maldonado & Associates d/b/a Kevin Maldonado & Partners LLC (“the Firm”), is Granted; and It is

ORDERED, that Plaintiffs’ motion (Mot. Seq. No. oo5) for an Order of the Court, striking the Answer pursuant to CPLR Stz6(g) because of Defendants Maldonado and the Firm’s willful and contumacious failure to comply with the Disclosure Order (Mot. Seq. No. oo4) and their disclosure obligations throughout the litigation, is Granted”

We reported on this case when it was decided in Supreme Court and now after a couple of years it has been decided in the Appellate Division in Altman v Orseck 2025 NY Slip Op 00940 Decided on February 19, 2025 Appellate Division, Second Department.

“The plaintiffs, Charles Altman and Altman Law Group, LLC, commenced this action, among other things, to recover damages for violation of Judiciary Law § 487 against, among others, the defendants Richard S. DiPreta and DiPreta Law Firm, LLP (hereinafter together the defendants). The defendants moved, inter alia, pursuant to CPLR 3211(a) to dismiss the first cause of action, alleging violation of Judiciary Law § 487, insofar as asserted against them. In an order dated January 10, 2023, the Supreme Court, among other things, granted that branch of the motion only to the extent of directing dismissal of so much of the first cause of action as was predicated upon events occurring prior to April 24, 2016, insofar as asserted against them by the plaintiff Altman Law Group, LLC. The defendants appeal, and we affirm.

“Pursuant to CPLR 3211(a)(5), a party may move to dismiss a cause of action based on the doctrine of res judicata or collateral estoppel” (Joseph v Bank of N.Y. Mellon, 219 AD3d 596, 597; see Tracey v Deutsche Bank Natl. Trust Co., 187 AD3d 815, 817). “Under the doctrine of res judicata, or claim preclusion, a disposition on the merits bars litigation between the same parties, or those in privity with them, of a cause of action arising out of the same transaction or series of transactions as a cause of action that either was raised or could have been raised in the prior proceeding” (Capital One, N.A. v Trubitsky, 206 AD3d 608, 610 [internal quotation marks omitted]; see Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., 197 AD3d 144, 152). “The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action . . . and decided against that [*2]party or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v New York Tel. Co., 62 NY2d 494, 500 [emphasis omitted]; see Capital One, N.A. v Trubitsky, 206 AD3d at 611).

Here, contrary to the defendants’ contention, the issues raised in the instant action as to the defendants’ alleged violation of Judiciary Law § 487 could not have been raised in a prior action between the parties and were not necessarily decided in the prior action (see Altman v DiPreta, 204 AD3d 965). Thus, neither res judicata nor collateral estoppel bars the plaintiffs from litigating the instant Judiciary Law § 487 cause of action against the defendants (see Simmons v Jones Law Group, LLC, 214 AD3d 835, 837; Matter of Arcamone-Makinano v Perlmutter, 196 AD3d 479, 481-482).”

9/11 continues to cast a long shadow over the personal injury world, and will until 2090. That is the lesson of Mollahan v Worby Groner Edelman & Napoli Bern LLP 2025 NY Slip Op 30644(U) February 25, 2025 Supreme Court, New York County Docket Number: Index No. 195690/2022 Judge: David B. Cohen. As the law concerning injuries suffered during and after the WTC destruction continued to change, attorneys who worked in the area had to evolve client representation as well.

“In the complaint, plaintiffs allege that, beginning on September 12, 2001 and through March 15, 2002, Robert Mollahan (Robert), in the course of his employment as a disaster recovery engineer for Sprint Corporation, was exposed to toxins at or near the September 11, 2001 attack site at the World Trade Center (WTC). On May 19, 2006, Robert died from renal cell carcinoma, a form of cancer, allegedly caused by this exposure. Robert was survived by his parents and his brothers, plaintiffs Thomas and Edward Mollahan, and on April 5, 2007, plaintiffs were issued Letters Testamentary and appointed coexecutors of decedent’s estate. On September 11, 2006, WGEN1 entered into a retainer agreement with Edward, as an intended executor of Robert’s estate, to represent him in connection with claims to recover damages for Robert’s conscious pain and suffering and wrongful death caused by Robert’s exposure to toxins at the WTC. As of May 2007, WGEN also represented Thomas related to Robert’s claims.

The retainer agreement, bearing the header of WGEN, states that Edward is hiring WGEN to “prosecute a claim for personal injuries for damages suffered by [Robert] arising out of [Robert’s] exposure to toxic substances relating to 9/11 rescue or recovery operations.” (NYSCEF 39). In 2007 and/or 2008, WGEN commenced one or more civil actions in the Federal District Court of the Southern District of New York, seeking damages on behalf of plaintiffs. It is alleged that WGEN, NB, and WGE represented plaintiffs, and that LoPalo was an attorney associated with these firms. On January 2, 2011, the Zadroga Act was passed, thereby reactivating the September 11, 2001 Victim Compensation Fund of 2001 (VCF) to provide compensation to those who suffered a physical injury or condition caused by the terrorist attack on 9/11 or incurred during the rescue, recovery, and debris removal efforts that took place during any period beginning on September 11, 2001, and ending on May 30, 2022. The Zadroga Act originally authorized the VCF to accept claims for a period of five years, ending in October 2016. On or about October 12, 2012, the VCF added kidney cancer, including but not limited to renal cell carcinoma, to the list of 9/11-Related Physical Health Conditions for which compensation could be received from the VCF. On December 18, 2015, the “Reauthorized Zadroga Act” was signed into law, which, among other things, extended the VCF for an additional five years, allowing individuals to submit claims until December 18, 2020. On July 29, 2019, the “VCF Permanent Authorization Act” was signed into law, extending the deadline to file a claim with the VCF to October 1, 2090. According to the VCF statute and applicable rules and regulations, in order to qualify for VCF compensation, all releases regarding settlement of actions must have been tendered prior to October 13, 2012, and all claims that were not settled with the tendering of releases prior to October 13, 2012, must have been withdrawn or dismissed without settlement on or before the date the claim was filed with the VCF, in order to be eligible to receive compensation from the VCF. On September 18, 2015, WGEN, NB, and WGE referred plaintiffs to the Barasch Firm for the purpose of filing a claim with the VCF, and on October 7, 2015, Edward retained the Barasch Firm for this purpose. On or about December 28, 2016, WGEN and NB had plaintiffs, as co-executors of Robert’s estate, execute two settlement agreements and general releases (2016 Settlement), which settled and released all claims in the 9/11-Related Lawsuit(s) for the total sum of approximately $6,200.00. On or about January 18, 2017, WGEN counter-signed the settlements. Plaintiffs allege that as the signing and tendering of the 2016 Settlement occurred after October 13, 2012, they were thereby rendered ineligible to receive compensation from the VCF. Plaintiffs contend that WGE and NB did not advise plaintiffs of the consequences of signing these releases in 2016, and that had they known the consequences, they would not have signed them.”

“In his motion, LoPalo argues that plaintiffs had three years, or until December 28, 2019, to bring his claim, and since plaintiffs brought this action on November 21, 2022, it is timebarred and must be dismissed. In opposition, plaintiffs allege that the key dates for the statute of limitations are either May 29, 2020, when the VCF affirmed the denial of plaintiffs’ claim, or June 11, 2019, when LoPalo appeared at the VCF hearing on plaintiffs’ behalf, contending that they were continuously represented by LoPalo during the appeal. As New York State statutes of limitation were tolled during the COVID-19 pandemic, plaintiffs contend that this action would be timely from either date. If the accrual date of this malpractice lawsuit is the date when the alleged malpractice took place, then that date here would be December 28, 2016, when WGEN and/or NB had plaintiffs, as co-executors of decedent’s estate, execute the settlement agreements and releases. It is the signing of these agreements that precluded plaintiffs from obtaining compensation from the VCF, and plaintiffs contend that it was LoPalo’s failure to inform and advise them of this prior to the signing of these releases that constituted malpractice. Even assuming that the accrual date was December 28, 2016, plaintiffs argue that the application of the continuous representation doctrine tolled the running of the three-year statute of limitations until June 18, 2019, when LoPalo represented plaintiffs at the VCF hearing. LoPalo states that he was retained in the 9/11-related lawsuits and was not counsel on the VCF claims. He maintains that plaintiffs concede as much in their complaint, which makes clear that the Barasch Firm handled the VCF claim. LoPalo argues that his appearance at the VCF appeals hearing does not constitute representation, nor does it qualify for continuing representation as the VCF claim was handled by the Barasch Firm and was a distinct and separate action from that commenced by LoPalo, and the subsequent VCF hearing is separate and distinct from the original representation for which LoPalo and his firm were retained.”

“Therefore, plaintiffs’ complaint sufficiently alleges that the broad language of the retainer agreement and LoPalo’s and WGE’s actions created in plaintiffs a reasonable impression that Lopalo and WGEN were actively addressing their legal needs. During this time, plaintiffs would not be expected to bring a lawsuit against LoPalo or WGEN and jeopardize their ongoing relationship of trust (see Greene, 56 NY2d at 94; Glamm 57 NY2d at 94; see also Sendar Dev. Co., LLC, 68 AD3d at 503 [the continuous representation doctrine applies when “a plaintiff shows that he or she relied upon an uninterrupted course of services related to a particular duty breached”]).”

Kraemer v Edelstein 2025 NY Slip Op 30623(U) February 24, 2025 Supreme Court, New York County Docket Number: Index No. 153243/2024 Judge: Ariel D. Chesler is summed up simply “Plaintiff has come to this Court with nothing short of an unintelligible conspiracy theory not a cause of action.”

“Between 2014 and 2015, plaintiff was involved in a Housing Court proceeding with his landlord, Majestic Realty Corp. and his landlords the Edelstein defendants. Ultimately, in 2015 he was evicted from his apartment. In a series oflawsuits filed in the Southern District by plaintiff between 2014 and 2019, he alleged various claims against, among others, the Edelstein defendants, Majestic Realty Corporation, the New York City Department of Housing, Preservation, and Development (HPD), the New York State Division of Housing and Community Renewal (DHCR), the Housing Court Judge who presided over the eviction proceedings, and the city marshal who carried out the eviction.

As noted by Judge Loretta A. Preska in her 2014 decision, the “The gravamen of this complaint is that Defendants have negligently responded to Plaintiffs efforts to remedy the condition of his apartment” which had made been uninhabitable by mites. However, in other subsequent suits, plaintiff alleged that the landlord purposely pumped poison fumes into his apartment and also that HPD, the Housing Court Judge, and the marshal had failed to carry out their duties, committed fraud and/or engaged in other unlawful behavior. In one of the suits, Plaintiff alleged “that unnamed individuals drugged his daughter to prevent her from providing testimony, while also coercing her to testify; that unnamed individuals kidnapped his daughter to force him to stop pursuing an appeal; and that his ‘daughter was overdosed twice on appeal. And twice while in captivity until she convulsed causing permanent mental impairment.”‘ He further alleged “that there is far-reaching conspiracy to tamper with his lawsuits that began after he discovered, approximately 17 years ago, that his daughter was being abused.” Plaintiff asserted that his daughter was severely abused by individuals in Pennsylvania. Judge Preska dismissed plaintiffs various filings on numerous grounds, including lack of subject matter jurisdiction, failure to state a claim, and immunity. In her 2017 decision (see Kraemer v. Edelstein et al., No. 17-CV-2910 [LAP][S.D.N.Y. Sep. 19, 2017]), she also dismissed claims against defendant Florence Edelstein on the grounds of res judicata since virtually identical claims had been raised in earlier actions. To the extent plaintiff had pleaded state law claims, Judge Preska declined to exercise supplemental jurisdiction over the same.”

“Plaintiff’s cause of action against Ms. Spitale must be dismissed as this Court lacks personal jurisdiction of Defendant Spitale. The claims against Spitale, who is an attorney who lives and practices in Pennsylvania, stem from her role as the court-appointed guardian of Plaintiff’s adult daughter, who is also a Pennsylvania resident. Plaintiff alleges that Spitale is involved in a child slave manufacturing business.

The entirety of the transactions and occurrences between Plaintiff and Defendant Spitale (none of which appear to be legal causes of action) occurred in the commonwealth of Pennsylvania. Defendant Spitale does not do business in the state of New York. She does not reside in New York. In sum, she has no contacts with New York to support a finding this forum has personal jurisdiction over Defendant Spitale. Accordingly, the Court may not exercise personal jurisdiction over Spitale under any provision of CPLR § 302(a), and dismissal pursuant to CPLR § 321 l(a)(8) is thus mandated. Further, because the situs of the alleged injury occurred in Pennsylvania-rather than New York-there is no jurisdiction under CPLR 302(a)(3) (i) and (ii).”

Kliger-Weiss Infosystems, Inc. v Ruskin Moscou Faltischek, P.C. 2025 NY Slip Op 00956
Decided on February 19, 2025 Appellate Division, Second Department is that very rare reversal of summary judgment at the appellate level. The Decision illustrates the depth to which the Courts will go in dissecting the “but for” causation in the underlying case.

“The underlying facts and procedural history are summarized in our decision and order determining a prior appeal in this action (see Kliger-Weiss Infosystems, Inc. v Ruskin Moscou Faltischek, P.C., 159 AD3d 683; see also Matter of Kliger-Weiss Infosystems, Inc. v Epicor Retail Solutions Corp., 2011 NY Slip Op 33799[U], *1-2 [Sup Ct, NY County]). In short, the plaintiff, an entity that provides cloud technology solutions and point-of-sale systems to retailers, seeks to recover damages from the defendant, a law firm that represented the plaintiff, inter alia, in an effort to resolve a prior federal action (hereinafter the federal action) between the plaintiff and NSB Retail Solutions, Inc., a successor in interest of STS Systems, Ltd. (hereinafter STS), and a predecessor in interest of Epicor Retail Solutions Corporation (hereinafter Epicor) (see NSB U.S. Sales, Inc. v Brill, 2007 WL 258181, 2007 US Dist Lexis 7813 [SD NY, No. 04 Civ 9240 (RCC)]). In this action, the plaintiff alleged, among other things, that the defendant negligently failed to incorporate an evergreen provision in a 2007 settlement agreement resolving the federal action (hereinafter the settlement agreement). A 2001 agreement between the plaintiff and STS (hereinafter the 2001 agreement) contained the evergreen provision preferred by the plaintiff, and the settlement agreement superseded the 2001 agreement, at least to the extent they conflicted with one another. Michael Faltischek, one of the defendant’s attorneys, primarily negotiated the settlement agreement on the plaintiff’s behalf and communicated with the plaintiff in relation thereto. On the prior appeal, this Court determined that the Supreme Court properly denied that branch of the defendant’s motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging legal malpractice but that it should have granted those branches of the motion which were to dismiss the other causes of action (see Kliger-Weiss Infosystems, Inc. v Ruskin Moscou Faltischek, P.C., 159 AD3d at 683-685). [*2]
Thereafter, the defendant moved, inter alia, for summary judgment dismissing the cause of action alleging legal malpractice. By order dated September 10, 2020, the court, among other things, granted that branch of the defendant’s motion. The plaintiff appeals.”

“Here, contrary to the Supreme Court’s determination, the defendant failed to establish its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging legal malpractice (see Aqua-Trol Corp. v Wilentz, Goldman & Spitzer, P.A., 197 AD3d 544, 545). The defendant’s “submissions in support of [its] motion did not establish, prima facie, the absence of at least one element of the legal malpractice cause of action” (McGlynn v Burns & Harris, Esq., 223 AD3d at 734). For example, the defendant argued that the plaintiff was unable to prove that its attorneys failed to exercise the requisite skill and knowledge, since the plaintiff, in a discovery response, stated that it did “not expect to call an expert witness at . . . trial.” The defendant’s argument constituted “an effort to point out gaps in the plaintiff’s proof, which was insufficient to meet the defendant[‘s] burden as the party moving for summary judgment” (Iannucci v Kucker & Bruh, LLP, 161 AD3d 959, 960; see Kempf v Magida, 116 AD3d at 736). In any event, the plaintiff has alleged, inter alia, that its principal conveyed to Faltischek the importance of including the 2001 agreement’s evergreen provision in the settlement agreement; that Faltischeck indicated that he would ensure that the settlement agreement contained such a provision; and that he nonetheless directed the principal to execute the settlement agreement, notwithstanding the fact that it did not contain the requested provision. “Under the circumstances[,] . . . the plaintiff need not produce expert testimony to establish that the defendant failed to exercise the requisite level of skill and knowledge” (Northrop v Thorsen, 46 AD3d at 782; see Shapiro v Butler, 273 AD2d 657, 658; cf. Greene v Payne, Wood & Littlejohn, 197 AD2d 664, 666).

The defendant similarly failed to demonstrate the absence of triable issues of fact with regard to proximate cause. Contrary to the defendant’s contention, its submissions were sufficient to place the credibility of Epicor’s counsel at issue as it relates to his deposition testimony that Epicor would not have agreed to an evergreen provision when negotiating the settlement agreement (see Lurie v Lurie, 200 AD3d 669, 670; Brown v Kass, 91 AD3d 894, 895-896; cf. Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 52). Regardless, even if the defendant established that Epicor would not have agreed to such a provision, the plaintiff’s principal asserted that he would not have executed the settlement agreement had he known it did not contain the requested evergreen provision. Absent the settlement agreement, the 2001 agreement, which included the evergreen provision preferred by the plaintiff, would have remained in effect and the federal action would have continued to a disposition. Since the defendant failed to establish that the plaintiff would not have prevailed in the federal action, or that the plaintiff otherwise would have incurred the claimed damages regardless of the defendant’s alleged negligence, the defendant did not meet its prima facie burden on the issue of proximate cause (see Chicas v Cassar, 212 AD3d 704, 705; Detoni v McMinkens, 147 AD3d 1018, 1020; cf. Sang Seok Na v Schietroma, 163 AD3d 597, 599).

Moreover, the defendant’s contention that the cause of action alleging legal malpractice was time-barred was itself barred by the law of the case doctrine. “The doctrine of the ‘law of the case’ is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned” (Martin v City of Cohoes, 37 NY2d 162, 165). “An appellate court’s resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court . . . and operates to foreclose re-examination of the question absent a showing of subsequent evidence or change of law” (Matter of Norton v Town of Islip, 167 AD3d 624, 626 [alterations and internal quotation marks omitted]). Here, the defendant’s statute of limitations argument was raised and decided against it on the prior appeal in this action (see Kliger-Weiss Infosystems, Inc. v Ruskin Moscou Faltischek, P.C., 159 AD3d at 685). The defendant did not submit any new evidence in support of its motion for summary judgment or argue that there had been a change in the law, and its argument was therefore barred by the law of the case doctrine (see Bank of N.Y. Mellon v Selig, 213 AD3d 894, 896; US Bank, N.A. v Morrison, 160 AD3d 681, 682-683).”