Gordon v Martel 2025 NY Slip Op 02993 Decided on May 15, 2025 Appellate Division, First Department illustrates what happens when clients hire/fire attorneys, or attorneys successfully withdraw from cases. Where a mistake is made by attorney 1, and successor counsel attorney 2 has time to fix the mistake, attorney 1 will be immunized.

“This legal malpractice action arises from plaintiff’s representation by nonparty Ronald Hollander, Esq., now deceased, in an action concerning an apartment located in Manhattan. Plaintiff alleges that Hollander’s failure to challenge the characterization by Supreme Court of a negligence claim as a breach of habitability claim in a 2018 order deprived plaintiff and her husband of litigating their negligence claim, which would have entitled them to special damages and remedies not available under the habitability claim.

Giving plaintiff the benefit of every possible favorable inference (see generally Leon v Martinez, 84 NY2d 83, 87-88 [1994]), defendant established that, irrespective of Hollander’s alleged negligence, dismissal was warranted because Hollander’s representation of plaintiff was not the proximate cause of her alleged damages with respect to her negligence claim (see Zarin v Reid & Priest, 184 AD2d 385, 387-388 [1st Dept 1992]). Nor does plaintiff establish that had Hollander appealed the 2018 order, he would have been successful on the appeal (see Hutt v Kanterman & Taub, 280 AD2d 379, 379 [1st Dept 2001], lv denied 96 NY2d 713 [2001]).

Moreover, Hollander only represented plaintiff until January 2020. As a result, plaintiff’s successor counsel had sufficient opportunity to raise the issue of the negligence claim with the court in advance of the hearing on plaintiff’s remaining claims, with the Judicial Hearing Officer during the hearing, or thereafter, either by post-hearing submission or subsequent motion (see Somma v Dansker & Aspromonte Assoc., 44 AD3d 376, 377 [1st Dept 2007]).

The complaint further fails to allege facts stating how a challenge by Hollander to the purported discrepancy in the 2018 order would have resulted in an award of ascertainable damages (see Pellegrino v File, 291 AD2d 60, 63 [1st Dept 2002]).”