Fleisher v Ballon Stoll Bader & Nadler, PC  2015 NY Slip Op 31855(U)  October 5, 2015 Supreme Court, New York County  Docket Number: 158302/2012  Judge: Joan M. Kenney is another iteration of how difficult it is to sue an estates (or in this case a Medicaid planning) attorney.  On its face, the case seems simple.  Attorney is hired by Mrs. F to help plan for her mother’s medicaid situation, and to do a will for Mrs. F.  Then Mrs. F pre-deceases her mother, and her insurance policy and a totten trust now endanger the mother’s medicaid planning.

“Mrs. Litchman was a recipient of Medicaid benefits. She was in a nursing home towards the end of her life. Plaintiff alleges that defendants failed to identify the Policy and CD as assets owned by Mrs. Fleisher that would have an impact and effect on Mrs. Lichtman’s eligibility for Medicaid benefits, and failed to plan Mrs. Fleisher’s estate in a way that would maximize the value of her assets for her heirs and beneficiaries. Plaintiff contends that Mrs. Lichtman cannot accept the payment from Unum as it might be subject to a Medicaid lien and disqualify her from eligibility for certain medicaid benefits. Plaintiff further alleges that the Policy and CD would have been conveyed to Mrs. Fleisher’s estate and would have ultimately passed to plaintiff as the residuary beneficiary if defendants had prevented the transfer of these assets to Mrs. Lichtman. ”

“Here, plaintiff David Fleisher is suing both individually and as the proposed executor and beneficiary of the Estate of Marilyn R. Lichtman, also known as Marilyn Lichtman Fleisher, deceased. Individually as a beneficiary of the estate, plaintiff is not entitled to bring a cause of action against defendant attorneys due to lack of privity. Plaintiff is, however, entitled to bring a cause of action against defendant attorneys as a personal representative of the estate. Plaintiff submits a copy of a decision dated December 9, 2014, in which the Honorable Diana A. Johnson stated that “letters testamentary shall issue to David Fleisher and Ruby Erkkila upon duly qualifying according to law.” (See Plaintiffs Exhibit F). Unfortunately, plaintiff failed to demonstrate that the “letters testamentary” were formally issued pursuant to the Surrogate’s decision. Plaintiff, as a “proposed executor” (as noted in the caption of this case) is not entitled to maintain this action without the letters testamentary.”

“Even if the plaintiff were allowed to bring this action against defendant once the proper letters testamentary were issues, plaintiff must plead and prove actual, ascertainable damages to the estate as a result of an attorney’s alleged malpractice. A complaint in a legal malpractice action will be dismissed pursuant to CPLR 3211 (a)(7) where “it fails to plead specific factual allegations demonstrating that, but for the … defendant’s alleged negligence … the plaintiff would not have incurred any damages” (Rudolfv Shayne, Dachs, Stanisci, Corker & Saucer, 8 NY3d 438, 441, 835 NYS2d 534, 867 NE2d 385). Proximate causation is a requisite element of a legal malpractice claim ·and it must be based on more than “mere speculation.” Mere speculation about a loss resulting from an attorney’s alleged omission is insufficient to sustain a prima facie case of legal malpractice (Giambrone v Bank of NY, 253 AD2d 786 [1998]). ”

“In opposition, plaintiff argues that Mrs. Fleisher’s estate was damaged in the amount of $216,798.04, due to defendants’ failure to properly advise Mrs. Fleisher to change the beneficiary of the life insurance policy and CD in order to maximize the value of the estate’s assets for the benefit of its beneficiaries. Plaintiff alleges that defendant attorneys were hired for the purpose of both estate planning and Medicaid planning for both Mrs. Fleisher and her mother. Plaintiff also claims that, pursuant to the retainer agreement, defendants were to advise on and effectuate transfers of assets in order to maximize the value of the estate and to preserve Ms. Lichtman’s eligibility for Medicaid benefits, but failed to do so, which resulted in the loss of $216, 798.04 in assets to the estate and its beneficiaries. In order to establish proximate cause in a legal malpractice action, plaintiff must demonstrate that “but for” the defendants’ negligence, Mrs. Fleisher would not have transferred any assets to her mother, and instead that these assets would have become part of the estate and ultimately reach plaintiff as the beneficiary. Here, plaintiff cannot prove that “but for” the defendants’ advice, or lack thereof, Mrs. Fleisher would have changed the named beneficiary on the CD and trust from her mother to plaintiff. Plaintiffs complaint merely alleges, in a conclusory fashion, that defendants’ deviation from “good and accepted” legal practices resulted in the estate being devalued in the amount of$216,000.00. Accordingly, the legal malpractice 6 [* 6] action must be dismissed. “