Marcum LLP v L’abbate, Balkan, Colavita & Contini, LLP   2022 NY Slip Op 31913(U)  June 17, 2022  Supreme Court, New York County Docket Number: Index No. 151586/2021  Judge: Joel M. Cohen is a decision on a motion to reargue.  The legal malpractice case was earlier dismissed as too speculative.  The Fee claims remain.

“Plaintiff brought a single claim for legal malpractice against Defendants alleging, among other things, failure to timely produce relevant documents in discovery, negligently producing privileged and protected materials, and withdrawing from the representation of Marcum in the underlying litigation just months before trial with a motion for sanctions pending (NYSCEF 1). In its claim for damages, Plaintiff sought recovery of additional attorneys’ fees incurred by having to hire new counsel due to the negligence of L’ Abbate (NYSCEF 1 ,52) and disgorgement of attorneys’ fees paid to L’ Abbate since the inception of L’ Abbate’s allegedly negligent conduct and breaches of its duty, including a $2.0 million self-insured retention paid by Marcum (NYSCEF 1 ,57-58). Defendant moved to dismiss the Complaint in its entirety, but did not address the sufficiency of Plaintiff’s claim for legal fees or disgorgement in its papers.”

“In seeking leave to reargue the Court’s denial of the motion to dismiss in its entirety, Defendant’s core argument is that Plaintiff has not sustained any actual damages because it has
not paid any fees that it was not otherwise required to pay under its primary policy. Defendant does not, however, establish that “the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle oflaw” (Pro Brokerage, Inc. v Home Ins. Co., 99 AD2d 971 [1st Dept 1984 ]).

Converting this motion into one to renew, which Defendant attempts in its reply brief, is unavailing. Defendant argues that “where the additional facts presented relate to an issue which had not previously been raised by the parties but, rather, has been raised sua sponte by the court in its memorandum … it [is] error for the court not to consider these additional facts” (Kosovsky v. Park S. Tenants Corp. 45 Misc3d 1216(A) [Sup Ct, NY County 2014]) But unlike Kosovsky v Park S. Tenants Corp., where the court denied plaintiffs motion for summary judgment based on procedural grounds not raised by the parties, here the burden was always on Defendant to show that dismissal of the complaint in its entirely was warranted, which Defendant failed to do. The Court simply noted at argument that Defendant failed to address a portion of Plaintiffs claim. A motion for leave to renew “is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation” (Renna v Gullo, 19 AD3d 472, 473 [2d Dept 2005]). ”