It is rare that Courts leave legal malpractice counterclaims in a case which starts out as an attorney fee claim; it is more rare that a late amended claim is permitted.  However, in Davidoff Hutcher & Citron LLP v Parada  2019 NY Slip Op 31121(U) April 22, 2019  Supreme Court, New York County Docket Number: 152533/2016 Judge Paul A. Goetz permitted amendment to add a legal malpractice counterclaim.

“Plaintiff Davidoff Hutcher & Citron LLP commenced this action against its former client, defendant Maria Del Pilar Nava Parada, for unpaid legal fees arising from plaintiffs representation of Ms. Parada in a divorce proceeding. In her answer, Ms. Parada asserted a counterclaim for unjust enrichment based on plaintiffs alleged excessive billing practices. By order dated November 26, 2018, this court granted plaintiffs motion for summary judgment on its complaint for unpaid legal fees. Plaintiff now moves pursuant to CPLR 3212 for summary judgment dismissing Ms. Parada’s counterclaim for unjust enrichment. In a separate motion, defendant Ms. Parada moves pursuant to CPLR 3025 to amend her answer to assert additional counterclaims arising from plaintiffs alleged malpractice in representing defendant in a divorce proceeding. The motions are consolidated for purposes of this decision. ”

“With respect to the proposed counterclaim for legal malpractice, defendant Ms. Parada alleges that as a result of plaintiffs failure to complete certain tasks in the underlying divorce proceeding, Ms. Parada was forced to enter into an unfavorable settlement agreement with her ex-husband. Affirmation of Peter Hanschke dated February 26, 2019, Exh. C, if 22. Althoug plaintiff argues that Ms. Parada’s allegations are speculative and that she will not be able to show that plaintiffs actions caused Ms. Parada to enter into this agreement, it cannot be said at this stage that the proposed counterclaim is palpably insufficient or completely devoid of merit so as to warrant denial of her motion to amend. Cruz v. Brown, 129 A.D.3d 455, 456 (1st Dep’t 2015).

Further, Ms. Parada provided a reasonable excuse for her delay in asserting this claim as the underlying divorce proceeding finally settled in December 2018 and defendant moved promptly
thereafter to amend her counterclaims. Accordingly, it is ORDERED that the motion for summary judgment is granted and the counterclaim for unjust enrichment is dismissed; and it is further
ORDERED that the motion to amend to assert additional counterclaims is granted only to
the extent that defendant Ms. Parada may assert a counterclaim for legal malpractice as alleged
in the proposed amended answer and counterclaims attached to the motion papers, and is
otherwise denied; “