Delo v O’Connor 2022 NY Slip Op 34135(U) December 7, 2022 Supreme Court, New York County Docket Number: Index No. 652721/2022 Judge: Arlene P. Bluth is the kind of case that judges are prepared to dismiss wholesale. Judges, viewing this type of legal malpractice claim often find that everything is speculative, even when facts/arguments are properly pled.

“This action, in which plaintiff represents himself, relates to an underlying litigation in
which plaintiff, also self-represented, sued non-party JPMorgan for employment-related issues. Defendants here are the attorneys and law firm which represented JPMorgan in that case, which was commenced and settled in federal court.

Here, plaintiff alleges that defendants made a misrepresentation to the federal court
regarding an agreement for an extension of time to answer the complaint filed in that case. Ms. Queliz, representing JPMorgan, submitted a letter to the court requesting an extension to answer the complaint, stating that she had “consulted Plaintiff on [her] request, and he has given his consent for the additional time,” (NYSCEF Doc. No. 11). Plaintiff then submitted a separate letter stating Ms. Queliz made a misrepresentation to the Court, stating that there was a condition that JPMorgan accept service, which was merely emailed to JPMorgan. After receiving both letters, U.S. District Judge Vernon S. Broderick issued an order granting JPMorgan’s request for an extension of time.”

”

Pursuant to CPLR 3211 (a)(1), the documentary evidence submitted indicates that Ms.
Queliz did not misrepresent any facts in the underlying action. As Ms. Queliz attempted to explain to plaintiff in her emails, plaintiff attempted to serve JPMorgan by emailing the summons and complaint. That, of course, is not a permissible way to effectuate service. Ms. Queliz agreed to accept service this way and asked plaintiff to extend the time for JPMorgan to respond. Plaintiff agreed (NYSCEF Doc. No. 9 at 5). After this exchange, Ms. Queliz received from her client a request to waive service that was submitted by plaintiff after he sent the complaint to JPMorgan but before she came to an agreement with him. Ms. Queliz attempted to clarify whether there would be a waiver of service or an acceptance of service, and when plaintiff failed to communicate either, Ms. Queliz wrote to the court requesting an extension of time to answer. Plaintiff, self-represented, believed that because Ms. Queliz had all the documents, a waiver of service was not necessary. But this is not how service works; just because the defendants had the papers does not mean they were appropriately served under New
York law.

In any event, even after receiving plaintiff’s letter alleging fraudulent conduct, Judge
Broderick granted the extension. If plaintiff thought that decision was improper, then he should have sought to vacate it or appeal that decision in the court where it occurred. Instead, plaintiff accepted it, settled that case and signed a release.
The release, signed by plaintiff, states that plaintiff “knowingly and voluntarily releases
[entities’ present and former attorneys], both individually and in their business capacities, to the full extent permitted by law, from all claims, [and] causes of action,” (NYSCEF Doc. No. 13 at 3). Despite releasing the attorneys, he sues them here.

Additionally, plaintiff failed to state a cause of action against the attorneys for a party
with whom he settled an action. His claim that he would have received a default judgment for $2 million if defendants had not allegedly committed fraud upon the federal court is total speculation. He did not show that he properly served JPMorgan or adequately explain how this Court can ignore the fact that plaintiff voluntarily settled the case. As defendants stated, if plaintiff believes there was fraudulent conduct during the course of litigation, then the appropriate remedy is to pursue a vacatur of the stipulation of dismissal.”