Kadah v Kadah 2023 NY Slip Op 32889(U) August 18, 2023 Supreme Court, New York County Docket Number: Index No. 152026/2022 Judge: Richard Latin concerns a legal malpractice claim brought in New York concerning legal work performed in a Florida estate. Where should the claim be brought and if brought in NY is it materially inconvenient?

“This action stems from alleged malpractice in the handling of a legal matter relating to
plaintiff’s ownership of International Controls and Measurements Corp. (“ICM”), specifically the alleged failure to file a claim that plaintiff owned 3,160 shares of ICM stock prior to the November 1, 2016 deadline to make such a claim. It is uncontested that no timely claim was filed. However, H&K argue that they were not retained to represent Kadah individually, but rather in his role as Administrator ad litem over the company. Defendant H&K further asserts that ownership of shares in ICM could not be established despite best efforts, due to significant issues with corporate records.”

“Defendant H&K alternatively moves to dismiss plaintiff’s amended complaint pursuant to CPLR 327 by arguing that Florida is the appropriate venue for this action. It is uncontested that the probate proceeding was administered in Florida pursuant to Florida law and that H&K utilized Florida attorneys and maintained their files relating to the case in Florida.”

“Plaintiff argues that Defendant H&K is a multinational law firm with numerous offices,
including the New York office that plaintiff interacted with when he first retained the firm and that the inconvenience of Florida for plaintiff, a New York resident, would render Florida the forum non conveniens. Plaintiff acknowledges that the probate court proceeding was in Florida and under Florida law but argues that the legal work performed during the period in which the malpractice was alleged to have occurred – between July 2016 and November 2016 – took place mostly in New York and submits billing documentation in support. Lastly, plaintiff argues that numerous ICM attorneys, accountant and board members who would be potential witnesses are based in New
York.

After carefully weighing the relevant factors, the critical difference between this case and Rosenberg is that the plaintiff is not a resident or domiciled in Florida which sufficiently adjusts the calculus so as to necessitate a different result (id.). While the probate proceeding was in Florida, the legal work performed during the relevant period largely occurred in New York. Furthermore, it is uncontested that the relevant Florida filing deadline was missed and instead the dispute relates to the nature of the relationship between the parties created by the contractual relationship formed
in New York and the performance of the obligations stemming therefrom – issues which do not require a New York court to apply or interpret Florida law to such an extent that a Florida court would be significantly better positioned to appropriately handle the matter.

Meanwhile the burden on requiring an individual plaintiff who does not have a residence or domicile in Florida to pursue this action in Florida is prejudicial and creates significant practical difficulties. Defendant H&K argues that plaintiff has already demonstrated that he can pursue litigation in Florida due to his conduct in the probate court proceeding and that plaintiff is currently pursuing litigation relating to the probate court pending in Florida, but plaintiff has no alternative than to pursue those actions in Florida. However, this action – unlike those actions – has a considerable and sufficient nexus to New York to pursue the action here and Plaintiff need not be prejudiced by an inconvenient forum where he did not elect to pursue this action simply because he had no choice but to litigate a separate action in that forum. “[U]nless the balance is strongly in favor of the [moving party], the plaintiff’s choice of forum should rarely be disturbed.” (Swaney, 158 AD3d at 438). Here, the balance is not strongly in defendant H&K’s favor and plaintiff’s choice of forum should not be disturbed – particularly where litigating this action in Florida would present a clear and prejudicial burden on plaintiff.”