Kushakow v Law Offs. of Joseph B. Rosenberg 2026 NY Slip Op 00882 Decided on February 18, 2026 Appellate Division, Second Department is both unusual and familiar in that esate maters and legal malpractice claims almost always start with the question of “whom are you to the estate?” It was almost always the deceased who retained the attorney, and thus the person asking about legal malpractice has to be the administrator. Beneficiaries rarely have standing to sue the attorneys.
“The plaintiff commenced this action against the defendant Joseph B. Rosenberg and his firm, the defendant Law Offices of Joseph B. Rosenberg, to recover damages for legal malpractice, fraud, negligent misrepresentation, breach of fiduciary duty, unjust enrichment, and violation of Judiciary Law § 487, and for a constructive trust. The plaintiff alleged that the defendants were retained as estate planning counsel by the plaintiff’s parents, Stanley Kushakow (hereinafter Stanley) and Rita Kushakow (hereinafter Rita) in 2004. In 2005, the defendants prepared, among other things, wills and various trust documents for Stanley and Rita. The plaintiff alleged that in June 2007, Rita obtained a life insurance policy with a pay out in the sum of $10,000,000, naming Stanley as the sole beneficiary. After Stanley died in August 2014, the beneficiary of the policy was not changed, such that Stanley remained the beneficiary. On November 6, 2015, Rosenberg met with Rita to review various new estate planning documents, including, inter alia, her 2015 will, nominating Rosenberg as co-executor with the plaintiff, and a disclosure as to commissions and fees of attorney/fiduciary, which allowed for the attorney/fiduciary to receive a full commission. On September 8, 2020, Rita died. According to the plaintiff, it was the family’s intention to leave the life insurance policy proceeds to the plaintiff. The plaintiff alleged that because no amendments were made to the life insurance policy after Stanley’s death, nor were estate planning devices undertaken by the defendants, the proceeds from the life insurance policy passed through Rita’s estate, causing estate taxes to be applied and depriving the plaintiff of the full proceeds, while generating the sum of approximately $234,000 in commissions and other fees to the defendants.
The defendants moved pursuant to CPLR 3211(a) to dismiss the amended complaint. In an order entered February 14, 2024, the Supreme Court granted the motion, concluding, among other things, that the plaintiff lacked the capacity to sue. The plaintiff appeals.”
“”[S]tanding . . . concerns the absence or presence of a sufficiently cognizable stake in the outcome of the litigation” (Nicke v Schwartzapfel Partners, P.C., 148 AD3d 1168, 1171), whereas “[c]apacity to sue concerns a litigant’s power to appear and bring [his or her] grievance before the court” (id. at 1170). “Standing and capacity to sue are related, but distinguishable, legal concepts . . . [and] are both components of a party’s authority to sue” (Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 242; see Matter of Hamm v Board of Elections in the City of N.Y., 194 AD3d 73, 77). Lack of standing and lack of capacity are both addressed within the scope of the same statutory subdivision, CPLR 3211(a)(3) (see Wilmington Sav. Fund Socy., FSB v Matamoro, 200 AD3d 79, 89).
A “proposed” administrator who has not obtained letters of administration lacks capacity to bring an action to recover damages on behalf of the decedent’s estate (see Gulledge v Jefferson County, 172 AD3d 1666, 1667; Muriel v New York City Health & Hosps. Corp., 52 AD3d 792, 792).”
“Accordingly, the Supreme Court properly granted the defendants’ motion pursuant to CPLR 3211(a) to dismiss the amended complaint.”