Bridge View Tower, LLC v Law Offs. of Boris Nikhman, Esq. & Vladimir Nikhman, Esq. 2019 NY Slip Op 51425(U) Decided on September 4, 2019
Civil Court Of The City Of New York, New York County Kraus, J. is emblematic of what most defense attorneys think any legal malpractice case looks like…no focus, no proof, and merely an exercise in choler by a dissatisfied client.
The record at trial was scant and the facts were not clearly laid out. BVT did not offer a single document in evidence.
Michael Tong (Tong) testified for the BVT. Tong is a member of the BVT LLC. Tong testified that he was developing a property in Brooklyn and discovered some fraud on the part of the Condominium Board and brought suit on that basis. In October of 2016, BVT signed a retainer agreement with Defendants wherein Defendants agreed to represent BVT in Action 1.
Tong later became dissatisfied with Defendants’ services and fired Defendants. Tong did not state the date he fired Defendants. Tong testified that he hired a new attorney Martin Kohn to represent him. Tong testified he subsequently learned his action had been dismissed and that Martin Kohn refunded his retainer agreement.
Tong testified that he believed when he hired Defendants that a foreclosure action would subsequently be brought against him and he believed Defendants would represent him when that action was brought.
Tong testified that the foreclosure action was going to be consolidated or was consolidated with his case against the Condo Board, however there was no evidence of this submitted at trial or referenced in the court filings reviewed. Tong testified that Action 1 was dismissed because of some unspecified default on the part of Defendants. Tong testified that he lost the foreclosure action and that he blamed Defendants for said loss. Tong did not testify to any alleged damages incurred as a result of his action against the Board being dismissed, but he did testify that as a result of losing the foreclosure action he suffered damages of approximately $71,000 in the form of additional fees and penalties he was required to pay.
Tong testified that BVT recommenced his action against the Condo Board and that action was still pending as of the date of this trial. Tong alleges that he was adversely impacted by the dismissal Action 1 because it was not consolidated with the trial of the foreclosure action against him.
After Tong’s testimony, BVT rested and Defendants moved to dismiss. The court reserved decision on the motion.
Defendants then proceeded on their counterclaims. Vladimir Nikhman (VN) testified on behalf of Defendants. VN testified that Tong hired him in October 2015 to represent BVT in Action 1, and specifically to file an order to show cause. VN testified that he and Tong were friends and used to play poker together.
The parties signed a retainer agreement which was admitted in evidence (Ex A). BVT paid Defendants a $5000 retainer which was to be drawn down at the rate of $300 an hour for work done on Action 1. There was no provision in the retainer agreement for any billing beyond the initial $5000 retainer.
Initially, VN testified that he sent Defendants invoices every 60 days, but he produced no [*3]such invoices. VN then testified that he does not recall how often he sent Defendants invoices. VN testified that gave a document labeled “Time Sheet” to Tong as an invoice when he would come into the office. VN provided no detailed testimony about the nature of the work he did or the time he spent, or even his background and experience. VN did submit an invoice/time sheet (Ex C) however the court gives no weight to this document which is dated May 10, 2018, years after VN acknowledges he had been fired and well after the commencement of this action.
VN testified that his relationship with Tong deteriorated because Tong called him and emailed him incessantly and at inappropriate hours. VN acknowledged that Tong fired him and said that he only represented BVT for a period of three to four months.
VN testified that he and Tong had reached an agreement to do work beyond the amount of the initial $5000 retainer and that Tong gave him a check for an additional $2500.00 (Ex B). The check is marked for “Retainer” . The check was dated February 19, 2016. VN testified that at Tong’s request he delayed depositing the check. Presumably shortly after receiving the check Defendants were fired. VN attempted to deposit the check on or about March 2, 2016 but Tong had put in a stop payment on the check.”
“BVT Failed to Establish a Prima Facie Case Against Defendants for Legal Malpractice
To establish a cause of action for legal malpractice, BVT must prove that Defendants were negligent, that such negligence was the proximate cause of actual damages sustained by BVT, and that but for Defendants’ negligence, BVT would have been successful in the underlying action (Cummings v Donovan 36 AD3d 648). Speculative damages or conclusory claims are not sufficient to meet this standard ( Pellegrino v File 291 AD2d 60).
A claim for legal malpractice should be supported by expert testimony at trial (Merlin Biomed Asset Mgmt., LLC v. Wolf Block Schorr & Solis-Cohen LLP, 23 AD3d 243).
BVT’s evidence at trial fell far short of this standard.
Based on the foregoing, BVT’s action is dismissed.”