Goldstein v Scott Seidler Family Trust 2025 NY Slip Op 31422(U) April 22, 2025 Supreme Court, New York County Docket Number: Index No. 156268/2021 Judge: Judy H. Kim is a very unusual attorney fee/legal malpractice defense case. It is unusual for the initial highly aggressive procedure, as well as the assuredness with which the Court applies the “intertwined” legal malpractice defense principle.

“On July 1, 2021, plaintiff Doron Zanani commenced a special proceeding, by notice of petition and petition alleging that defendants retained him to represent them in three lawsuits filed in New York State Supreme Court, Kings County, in 2014, 2018, and 2019 (the “Kings County Actions”), but discharged him on June 8, 2021, without cause (NYSCEF Doc No. 1, complaint at ¶¶6, 19, 22, 39, 58). Plaintiff further alleged that he contemporaneously emailed invoices for his services to defendants at various times between December 1, 2015, and June 3, 2021, which defendants received without objection and failed to pay (id. at ¶¶99, 102, 104). The petition asserted claims for breach of contract, unjust enrichment, and quantum meruit and sought a declaratory judgment directing that the first $521,455.03 of any recovery in the Kings County Actions be paid to him (id. at ¶¶89-134).

Defendants interposed an Answer asserting various affirmative defenses and, as pertinent here, counterclaims for legal malpractice and breach of fiduciary duty based upon allegations that defendants informed plaintiff they wanted to settle the Kings County Actions for approximately $2,000,000.00 but plaintiff refused to convey an offer of $1,850,000.00 to them (because he “refused” to settle for less than $4,000,000.00) and, as a result, defendants eventually agreed to a settlement offer of $1,425,000.00 (NYSCEF Doc No. 34, Amended Answer at ¶¶74-78).
In decision and order dated November 4, 2021, the Court (Hon. Frank P. Nervo) denied the petition and dismissed the special proceeding without prejudice on the grounds that, inter alia, plaintiff had an adequate remedy of law in a plenary breach of contract action (NYSCEF Doc No. 77, decision and order). Justice Nervo noted, in passing, that “[t]he petition and answer present issues of fact as to whether petitioner committed malpractice or otherwise failed to render proper services” (id.).
That order was subsequently reversed by the Appellate Division, First Department, which converted the special proceeding to a plenary action, deemed the petition a complaint with respect to plaintiff’s breach of contract and account stated claims, and remanded the matter for further proceedings (NYSCEF Doc No. 82, remittitur).”

“Approximately three week after the Appellate Division issued this decision, and prior to the commencement of discovery, plaintiff filed the instant motion for summary judgment.1 In this motion, plaintiff argues that he has established his prima facie case for account stated and that defendants’ counterclaims should be dismissed because defendants’ Answer does not allege that defendants would have accepted a settlement offer if it had been conveyed to them, a necessary element of a malpractice claim, citing Drasche v Edelman & Edelman, 201 AD3d 434, 435 (1st Dept 2022). Plaintiff also argues that defendants’ assertion that he refused to convey settlement offers between defendants and the other litigants in the Kings County Actions is refuted by emails exchanged between Seidler and Zanani in 2020 and 2021 which, plaintiff asserts, establish that he conveyed a settlement offer of $2,500,000.00 to opposing counsel and relayed a settlement offer of $1,850,000.00 to defendants (see NYSCEF Doc No. 56, 58, 59).”

“The Court first addresses the branch of plaintiff’s motion to dismiss defendants’ second, third, and fourth counterclaims. While the motion is denominated as seeking summary judgment pursuant to CPLR 3212, plaintiff offers arguments pursuant to both CPLR 3211 and 3212, neither of which succeed. Plaintiff’s argument that defendants’ counterclaims are insufficiently pled relies on Drasche v Edelman & Edelman but in that case, the Appellate Division concluded that the complaint was properly dismissed because plaintiff failed to allege that “but for defendants’ alleged negligence, she would have accepted the settlement offer and would not have sustained any damages” (Drasche v Edelman & Edelman, 201 AD3d 434, 435 [1st Dept 2022] [internal citations omitted]) whereas defendants here have alleged that they were prevented from accepting an offer of $1,850,000.00 and eventually settled for $425,000.00 less than that amount.

Neither has plaintiff establishes his entitlement to summary judgment dismissing these counterclaims. As an initial matter, this motion is premature, as it was filed “prior to the preliminary conference or the opportunity of the parties to conduct discovery” (Downey v Local 46 2nd Holding Co., 34 AD3d 318 [1st Dept 2006] citing Bradley v Ibex Constr. LLC, 22 AD3d 380 [1st Dept 2005]; see also Sanchez v City of New York, 43 Misc 3d 1211(A) [Sup Ct, Bronx County 2014]).

Even setting this aside, however, plaintiff has “failed to make a prima facie showing that his representation of defendant met the applicable standard of professional care and/or did not proximately cause any damages” (Glassman v Weinberg, 154 AD3d 407, 409 [1st Dept 2017] [internal citations omitted]).”

“The foregoing mandates the denial of the branch of plaintiff’s motion seeking summary judgment on his account stated claim. It is well-settled that “[i]f a defendant client’s legal malpractice claim is intertwined with a plaintiff law firm’s claim for legal fees, the plaintiff will not be entitled to summary judgment on its account stated claim” (Emery Celli Brinckerhoff & Abady, LLP v Rose, 111 AD3d 453, 454 [1st Dept 2013]) and since the “alleged conduct which forms the basis for the malpractice [counterclaims] occurred during the billing period at issue,” the
account stated claim and malpractice counterclaims here are sufficiently “intertwined” such that summary judgment is inappropriate2 (Reem Contr. v Altschul & Altschul, 2022 NY Slip Op 34430[U], 15 [Sup Ct, NY County 2022] [internal citations omitted]).”