Kaufman v Boies Schiller Flexner 2024 NY Slip Op 00804 Decided on February 15, 2024
Appellate Division, First Department is a case where a second bite at the apple fails.

Initially, “The complaint stated a limited cause of action for breach of contract against BSF. The complaint sufficiently alleged that BSF overbilled or billed for unnecessary expenses associated with attorneys not admitted to practice law in, or based out of, New York, and the documentary submissions do not utterly refute those allegations (e.g. Ullmann-Schneider v Lacher & Lovell-Taylor, P.C., 121 AD3d 415, 416 [1st Dept 2014]; Goldfarb v Hoffman, 139 AD3d 474, 475 [1st Dept 2016]; Cascardo v Dratel, 171 AD3d 561, 562 [1st Dept 2019]; see CPLR 3211 [a] [1], [7]). The complaint otherwise failed to state a cause of action for breach of contract or violation of Judiciary Law § 487 (1) (see generally Second Source Funding, LLC v Yellowstone Capital, LLC, 144 AD3d 445, 445-446 [1st Dept 2016]; Brookwood Cos., Inc. v Alston & Bird LLP, 146 AD3d 662, 669 [1st Dept 2017]; Facebook, Inc. v DLA Piper LLP [US], 134 AD3d 610, 615 [1st Dept 2015], lv denied 28 NY3d 903 [2016]; CPLR 3211 [a] [7]). We decline to modify the order for review to indicate that dismissal was without prejudice as plaintiff has not sought clarification or relief from Supreme Court in the first instance.”

This time around, the AD was troubled by the “increasingly conspiratorial spin.” “Plaintiff contends that she was not required to establish the merits of her proposed amended complaint, and that her proposed causes of action were not palpably insufficient. We have considered each of the proposed causes of action that were brought before us, and find that the motion court properly exercised its discretion in determining that those claims were palpably insufficient and clearly devoid of merit (see MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499, 500 [1st Dept 2010]; Eighth Ave. Garage Corp. v H.K.L. Realty Corp., 60 AD3d 404, 405 [1st Dept 2009], lv dismissed 12 NY3d 880 [2009]). A review of the proposed amended complaint reveals that the “new” allegations are largely a repackaging of the same allegations that had been alleged in the original complaint to recoup legal fees which were previously dismissed, and the dismissal affirmed by this Court (Kaufman v Boies Schiller Flexner, LLP, 211 AD3d 428 [1st Dept 2022]). Further, the proposed amended complaint adds an increasingly conspiratorial spin on the facts, asserting claims that are implausible on their face and otherwise clearly refuted by the record.”