Ginsburg & Misk LLP v Eshaghpour 2025 NY Slip Op 32419(U) July 9, 2025 Supreme Court, New York County Docket Number: Index No. 161655/2024 Judge: Mary V. Rosado discusses what showing is necessary to demonstrate that settlement of the underlying case was “effectively compelled” by mistakes of counsel.

“From 2019 until July 2024, Plaintiff represented 245-02 Owner in a prior real estate dispute captioned 245-02 Owner LLC v. CVS Albany L.L.C., Index No. 719630/2018 (the “Underlying Action”).1 The Underlying Action proceeded to trial on June 24, 2024, and settled on July 16, 2024 at the close of 245-02 Owner’s case in chief. Plaintiff alleges that Defendants failed to pay $114,190.00 in legal fees and $60,089.86 for expert witness fees, and now sues to recover those fees. In tum, Defendants assert a counterclaim for legal malpractice, alleging they were forced into a less favorable settlement due to Plaintiffs malpractice. Specifically, Defendants allege Plaintiff failed to prepare witnesses for trial, failed to retain and identify experts before trial, failed to obtain certain records for use at trial, failed to advise of the items of proof required to prove damages at trial, and failed to “ensure the matter was assigned to the commercial division.” Plaintiff moves to dismiss the counterclaim pursuant to CPLR 3 211 (a)( 1) and ( a )(7), which Defendants oppose.”

“Defendants’ allegations oflegal malpractice grounded in the failure to have the Underlying Action assigned to the Commercial Division arc dismissed. The NYSCEF docket in the Underlying Action shows Plaintiff was not the attorney of record who filed the request for judicial intervention, which would have requested assignment to the Commercial Division. Plaintiff assumed representation after there had already been motion practice on a preliminary injunction, and preliminary and compliance conferences. Plaintiff cannot be held responsible for the case not being assigned to the Commercial Division. Nor is there any support for the claim that an attorneys’ failure to have a commercial lease dispute referred to the Commercial Division constitutes malpractice. Nor are there any damages arising from the case proceeding in a General IAS part as opposed to the Commercial Division. Therefore, the allegations of malpractice based on the failure to have the Underlying Action assigned to the Commercial Division are dismissed. C. Failure to Retain & Identify Experts Prior to Trial, Failure to Obtain Documents, and Failure to Prepare Witnesses Plaintiffs motion to dismiss Defendants’ allegations of malpractice grounded in Plaintiff’s alleged failure to (1) adequately retain and identify experts prior to trial; (2) to obtain certain documents, and (3) to prepare witnesses for trial is denied. Plaintiff’s two arguments for dismissal arc: (1) that Defendants voluntarily entered a settlement of the Underlying Action, and (2) Defendants’ malpractice claim is a non-actionable disagreement with Plaintiff’s legal strategy. As to Plaintiff’s first argument, it is well established that “a claim for legal malpractice is viable, despite a settlement of the underlying action, if it is alleged that settlement of the action was compelled by the mistakes of counsel” (Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435,435 [1st Dept 2011] quoting Bernstein v Oppenheim & Co., P.C., 160 AD2d 428,430 [1990]). The record establishes that a motion for summary judgment filed by Plaintiff on behalf of Defendant was denied at least in part due to Plaintiffs failure to authenticate properly certain exhibits in support of the motion for summary judgment. Moreover, the trial court in the Underlying Action issued an order precluding Glenn Adams (“Mr. Adams”), a general contractor retained by Plaintiff to opine on 245-02 Owner’s damages, from testifying based on insufficient pre-trial disclosures. The trial court also limited the testimony of Stephanie Nussbaum, a liability expert retained by Plaintiff. Finally, accepting the facts alleged as true, Plaintiff failed to subpoena Department of Building Records, resulting in certain records in support of 245-02 Owner’s case being deemed inadmissible. According to the uncontroverted affidavit of Mr. Eshaghpour, Plaintiff failed to prepare either himself or his expert, Ms. Nussbaum, resulting in muddled testimony and damaging the presentation of 245-02 Owner’s case. At the motion to dismiss stage, where the Court is obliged to accept the allegations as true, there is a sufficient showing that Plaintiffs alleged mistakes may have compelled Defendants to accept a less favorable settlement. Likewise, Defendants’ second argument, which claims the malpractice counterclaim is simply a disagreement with Plaintiffs reasonable legal strategy, does not require dismissal at the pleading stage (see Springs v L&D Law P.C., 234 AD3d 422, 424 [1st Dept 2025]). At this juncture, without a more complete record, the Court cannot find as a matter of law that Plaintiffs alleged failure to advise Defendants to compile certain pertinent documents in their possession, failure to subpoena certain Department of Buildings Records and failure to sufficiently make certain pre-trial disclosures was a reasonable trial strategy (see, e.g. Macquarie Capital (USA) Inc. v Morrison & Foerster LLP, 157 AD3d 456, 456-57 [1st Dept 2018]; Escape Airports (USA), Inc.v Kent, Beatty & Gordon, LLP, 79 AD3d 437,439 [1st Dept 2010] [counsel cannot shift to client legal responsibility for which it was hired due to counsel’s superior knowledge]). Simply put, given the legal standard on a motion to dismiss, and given the lack of documentary evidence refuting Defendants’ allegations, the Court denies Plaintiffs motion to dismiss the counterclaim alleging legal malpractice. The motion is granted solely to the extent that allegations of malpractice arising from a failure to have the Underlying Action assigned to the Commercial Division are dismissed.”