The statute of limitations is approaching, yet the underlying case is not yet finished. How to handle this problem? Aydiner v Karasik Law Group, P.C. 2021 NY Slip Op 30781(U) March 15, 2021 Supreme Court, Richmond County Docket Number: 151944/2020 Judge: Ralph J. Porzio catalogues the possibilities.
“The key question in the instant Motion is whether Plaintiffs’ legal malpractice cause of action is premature based on Plaintiffs’ pending Order to Show Cause with respect to the Underlying Foreclosure Action. This Court finds that the answer to this question is yes.
In Spitzer v. Newman, the plaintiff brought an action for legal malpractice against his attorney who represented him during loan transactions with borrowers. (See Spitzer v. Newman, 163 AD3d 1026, 1027 [2d Dept 2018]). The Supreme Court denied the attorney’s motion to dismiss and stayed the action pending the resolution of the plaintiff’s underlying action against the borrowers. (See id.) The Appellate Division, Second Department held that to the extent that
the plaintiff’s action might have been premature since it could not be determined that the defendants’ alleged legal malpractice proximately caused him to sustain damages, the Supreme Court providently exercised its discretion by staying the case instead of dismissing it under CPLR §3211(a)(7). (See id. at 1028).
In the case of Kahan Jewelry Corp v. Rosenfeld, the Supreme Court dismissed a plaintiff’s legal malpractice action, with leave to replead, against defendants based on their representation of plaintiff in a mortgage foreclosure action. (See Kahan Jewelry Corp. v. Rosenfeld, 295 AD2d 261, 261 [1st Dept 2002]). The Appellate Division, First Department upheld the Supreme Court’s decision since the foreclosure action was still pending at the time and the plaintiff therefore had not suffered any actual damages attributable to the alleged malpractice. (See id.). In Parametric Capital Mgt., LLC v. Lacher, the Appellate Division, First Department dismissed the Plaintiff’s legal malpractice claim in part since the subject matter of the services provided by the defendant attorneys was still pending and there was no adverse decision that but for defendants’ alleged negligence, would have been more favorable to plaintiffs. (See Parametric Capital Mgt., LLC v. Lacher, 15 AD3d 301, 302 [1st Dept 2005]).
Here, the Court recognizes that a final Judgment and Sale of Foreclosure was entered against the Plaintiffs in the Underlying Foreclosure Action. The Court has also considered Plaintiffs’ argument that this fact demonstrates that the Underlying Foreclosure Action is not “pending.” However, the Court finds that the relevant issue of whether Defendants’ alleged breach of duty caused Plaintiffs to suffer actual and ascertainable damages is not ripe due to Plaintiffs’ Order to Show Cause, which is still pending.”
“This Court finds that since the elements of causation and damages in Plaintiffs’ legal malpractice cause of action are dependent on the outcome of the Order to Show Cause, such cause of action is premature and must be dismissed with leave to replead under CPLR