It is a little difficult to understand the claims in Peterec-Tolino v Ciacci
2024 NY Slip Op 01259 Decided on March 07, 2024 Appellate Division, First Department. The legal representation was in a personal injury setting, with a workers’ compensation component as well. Plaintiff was able to settle two personal injury cases, and got a cash advance from a funder. How the law firm might have been negligently involved is opaque.

“Supreme Court properly dismissed plaintiff’s breach of fiduciary duty claim, to the extent it arises from Ciacci’s suggestion that plaintiff and his wife seek funding for their personal injury action against nonparty City of New York and related parties (see Kurtzman v Bergstol, 40 AD3d 588, 590 [2d Dept 2007]). Plaintiff’s signed agreement with the nonparty funder, selling a portion of his interest in any potential future litigation proceeds, “conclusively establishes a defense to the asserted claim as a matter of law,” as it shows that defendants did not commit any misconduct by failing to warn plaintiff of the terms of the agreement (Leon v Martinez, 84 NY2d 83, 88 [1994]; see CPLR 3211[a][1]), which plaintiff admittedly signed (see VXI Lux Holdco S.A.R.L. v SIC Holdings, LLC, 171 AD3d 189, 193 [1st Dept 2019]; Tozzi v Mack, 169 AD3d 547, 548 [1st Dept 2019], lv denied 33 NY3d 908 [2019]). Plaintiff cannot demonstrate that defendants induced him into signing (see Countrywide Home Loans, Inc. v Gibson, 157 AD3d 853, 856 [2d Dept 2018]), or that the contract was usurious or unconscionable, given that he received a cash advance and the repayment terms were contingent upon him securing a judgment or settlement (see Cash4Cases, Inc. v Brunetti, 167 AD3d 448, 449-450 [1st Dept 2018]).

Supreme Court also properly dismissed the breach of fiduciary duty claim to the extent that it arose from defendants’ legal representation of plaintiff. Since plaintiff essentially alleges that defendants “provided inadequate and ineffective representation,” the claim is “properly treated . . . as sounding in legal malpractice” (Cherry Hill Mkt. Corp. v Cozen O’Connor L.P., 118 AD3d 514, 514 [1st Dept 2014]). As for plaintiff’s proceedings before the Workers’ Compensation Board (WCB), both the Administrative Law Judge and review panel’s appeal decisions constitute documentary evidence conclusively establishing that plaintiff would not have prevailed, as those decisions were based on his claim form, statements at an independent medical evaluation, and testimony during the WCB hearing (see O’Callaghan v Brunelle, 84 AD3d 581, 581-582 [1st Dept 2011], lv denied 18 NY3d 804 [2012]). As for his first personal injury action against the City, the MTA, and related parties, the complaint fails to state a cause of action for malpractice since defendants successfully negotiated [*2]a settlement on his behalf despite an adverse finding by the WCB. As for his second personal injury action against private construction companies, of which plaintiff disclaimed knowledge until after the settlement was negotiated, the stipulation of discontinuance demonstrates that the settlement covered those companies as well, as they were represented by the same attorney who represented the City defendants in the other action and negotiated the settlement with plaintiffs (see Chic Realty 712, LLC v GSA Holding Corp., 220 AD3d 914, 915 [2d Dept 2023]).”