Attorneys sometimes say, in essence, sorry, I was wrong.  This happens far less often then one might think, but, it does happen.  When does that admission become applicable and useful in summary judgment.  The obvious answer is "after joinder of issue", but the more real world answer is found in  Vlachos v Weil ;2011 NY Slip Op 50538(U) ;Decided on April 8, 2011 ;Supreme Court, Queens County ;Markey, J. .  An e-mail is said to contain an admission of wrongdoing.
 

"This e-mail standing alone does not establish all the elements of a cause of action for legal malpractice. This Court’s independent legal research has revealed that admissions contained in e-mails may be used in litigation, but only after a court has analyzed carefully several issues, including, but not limited to, the authority and the capacity that the person who made the statement had, in the factual circumstances of the case, for making the particular statement or admission (see, Sea-land Serv., Inc. v Lozen Intl., LLC, 285 F3d 808, 821-822 [9th Cir. 2002] [district court abused discretion in excluding e-mail admission]; Jackson v Sara Lee Bakery Group, 677 F. Supp. 2d 1268 [ND Ala. 2009] [excellent analysis of whether particular emails constituted admissions, depending on the status of the person’s position within the company and the circumstances under which the alleged admission was made within the email] ; Schaghticoke Tribal Nation v Kempthorne, 587 F. Supp 2d 389, 398 [D. Conn. 2008] [e-mails written by congressional staffers were not admissions, but emails by Governor’s staff were considered admissions]; In re Homestore.Com, Inc. Securities Litigation, 347 F. Supp 2d 769, 781 [CD Cal. 2004] [admitting emails as admissions as "highly relevant" to the financial dealings]; Riisna v American Broadcasting Companies, Inc., 219 F. Supp. 2d 568, 571-573 [SDNY 2002] [email from executive producer of television news show was considered an admission]). [*3]

In the present case, it would be improvident, at this pre-deposition phase, to start applying admissions in order to short circuit meaningful discovery. Several issues of fact exist warranting discovery, including the role each defendant and the plaintiffs played in determining how payments were to be made and whether any purported malpractice was the proximate "but for" cause of the injury.

Furthermore, no discovery, including any deposition has taken place. In light of the substantial outstanding discovery, including the depositions of the parties, the motions by the plaintiffs and the defendant Weil for summary judgment are denied as premature, without prejudice to renew (CPLR 3212[f]; see, Juseinoski v New York Hosp. Med. Ctr. of Queens, 29 AD3d 636 [2nd Dept. 2006]; Rosa v Colonial Tr., 276 AD2d 781 [2nd Dept. 2000]). "