Barrett v Sacks & Sacks, LLP 2025 NY Slip Op 02547 Decided on April 29, 2025 Appellate Division, First Department is an example of the “but for” part of the legal malpractice formula. The legal malpractice formula holds that a successful legal malpractice claim shows, (i) departure from good practice; (ii) which proximately causes a bad outcome; (iii) “but for” which there would have been a better outcome; and (iv) ascertainable damages proximately caused.

It’s generally easy to discern and state the “departure” element. It’s harder to demonstrate that but for that departure there would have been a better outcome. In Barrett, plaintiff succeeds.

“This is a legal malpractice action arising from an underlying negligence action, in which plaintiff alleged that she was injured when she tripped and fell on a defective sidewalk. Plaintiff’s negligence action was ultimately dismissed in its entirety. Defendants represented plaintiff in the negligence action. In this legal malpractice action, plaintiff contends that defendants were negligent in incorrectly pleading the location of the accident and failing to file written oppositions to the underlying defendants’ motion for summary judgment.

Supreme Court erred in concluding that plaintiff would have been unable to prove one of the essential elements of the underlying negligence claim, because the defect which allegedly caused her accident was trivial as a matter of law. A defendant moving for summary judgment on the basis that the alleged defect is trivial must “make a prima facie showing that the defect is, under the circumstances, physically insignificant and that the characteristics of the defect or the surrounding circumstances do not increase the risks it poses” (Camara v Costco Wholesale Corp., 199 AD3d 509, 509-510 [1st Dept 2021]). There is no “per se rule that a defect must be of a certain minimum height or depth in order to be actionable” (id. at 510). A “holding of triviality must be based on all the specific facts and circumstances of the case, not size alone” (id.). Thus, the “issue is generally a jury question because it is a fact-intensive inquiry” (McCabe v Avalon Bay Communities, Inc., 177 AD3d 487, 489 [1st Dept 2019]).

Even assuming defendants met their initial burden of proof in showing that plaintiff could not prevail on her negligence claim, plaintiff raised an issue of fact in opposition. Plaintiff estimated that the elevation differential of the defect was an inch and a half or “a couple of inches” at the time of her accident, and the adjacent building’s superintendent testified that the elevation was about half an inch to one inch on the day of the accident. Administrative Code of the City of New York requires remediation for sidewalk flags with a height differential of one-half inch or more (see Administrative Code § 19-152[a][4]). Violation of that code is “not per se non-trivial . . . [but] is one factor to consider when deciding the issue of triviality” (Trinidad v Catsimatidis, 190 AD3d 444, 445 [1st Dept 2021]).

Plaintiff’s evidence thus raised an issue of fact as to whether the elevated sidewalk flag was a trivial defect (see id.).”

Xiuwen Qi v Hang & Assoc., PLLC 2025 NY Slip Op 31308(U) April 16, 2025 Supreme Court, New York County Docket Number: Index No. 151821/2023 Judge: Mary V. Rosado is a discussion of “ripeness” and when a legal malpractice case can or cannot be proven.

“Upon the foregoing documents, and after a final submission date of February 14, 2025,
Defendants/Third-Party Plaintiffs Hang & Associates, PLLC, Jian Hang, Jiajing Fan, Shan Zhu,
and Zhangyuxi Wang (collectively “Third-Party Plaintiffs”) motion for seeking leave to renew
partially this Court’s Decision and Order dated September 3, 2024 is denied, without prejudice.”

“Third-Party Plaintiffs seek leave to renew the portion of this Court’s Decision and Order
dismissing their contribution claim asserted against Third-Party Defendants Troy Law PLLC, John
Troy, Tiffany Troy, and Aaron Schweitzer (“Third-Party Defendants”). Third-Party Plaintiffs are being sued by Plaintiff for legal malpractice for allowing his wage and hour dispute to be dismissed
based on their multiple administrative defaults of Court orders (Qi v Famous Sichuan New York
Inc., Index No. 656826/2019 [the “2019 Action”]). Third Party Plaintiffs filed a contribution claim
against Third-Party Defendants, who are representing Plaintiff in a new wage and hour case, which
attempted to restore some of the claims administratively dismissed in the 2019 Action (Qi v
Famous Sichuan New York Inc., et al., 650984/2022 [the “2022 Action”]). In the 2022 Action,
some of Plaintiff’s claims were dismissed based on the statute of limitations after Third-Party
Defendants failed to raise Governor Cuomo’s Executive Orders tolling the statute of limitations
(“Covid-19 toll”) as a defense. Third-Party Plaintiffs theory of contribution is that some of the
damages Plaintiff is seeking from them could have been avoided had Third-Party Defendants
raised the Covid-19 toll.”

“The Court found the contribution claim as it relates to Third-Party Defendants alleged
failure to raise the Covid-19 toll premature and speculative because remedies which could
eliminate the alleged damages remained sub Judice or had not yet been exhausted. A review of the
2022 Action’s docket shows that remains the case: Third-Party Defendants have filed a notice of
appeal regarding the denial of their motion to renew, and there is now sub Judice a motion to
reargue. 1 Just as when the Court originally dismissed the Third-Party Complaint, there are still
unresolved remedies which may eliminate the alleged damages sought in the third-party
contribution claim. Therefore, leave to renew is denied (see Grace v Law, 24 NY3d 203, 210
[2014] [legal malpractice actions premature prior to appellate court or underlying trial court being
given opportunity to rectify unfavorable result]). The denial is without prejudice, as the contribution claim may be reasserted depending on the outcome of the motion to reargue and/or notice of appeal”

This question can have large real world consequences as we see in Park W. Exec. Servs., Inc. v Gallo Vitucci & Klar, LLP 2025 NY Slip Op 31462(U) April 25, 2025 Supreme Court, New York County Docket Number: Index No. 157052/2024 Judge: Paul A. Goetz. In a legal malpractice setting, whether the attorneys “admitted” that a driver was an employee or not is determined not to have matted.

“Plaintiff, Park West Executive Services, (“Park West”) facilitates taxi and limousine drivers to customers in need of transportation (NYSCEF Doc No 1 at ¶ 32). Plaintiffs, United Specialty Insurance Company (“USIC”) and First Mercury Casualty Company (“First Mercury”), are insurance companies who issued policies to First West (id. at 34 – 35). On October 31, 2014, non-party Margaret Rivera, a driver who had a contract with Park West, was involved in a motor vehicle accident (id. at ¶ 42 – 43). As a result of the accident, non-party Ennigier Rivera, suffered injuries and commenced an action for personal injuries in New York State Supreme Court, Bronx County, entitled Ennigier Rivera v. MD. LR. Bhuiyan and Margaret Rivera, under index number 306435/2014 (the “Underlying Action”) (id. at ¶ 44 – 45). Defendants represented Margaret Rivera, Mohammed Bhuiyan (the owner of the car operated by Margaret Rivera), and Park West in the Underlying Action (id. at 46 – 50).

Plaintiffs allege that defendants were negligent in their representation because they the First Department ruled that they admitted that Margaret Rivera was an employee of Park West, thus making them vicariously liable for Margaret Rivera’s negligence. Plaintiffs contend that Margaret Rivera was an independent contractor, and if that argument had successfully been made in the underlying action, then they would not have had to settle that action.”

“Here, plaintiffs’ legal malpractice claim must fail because the damages alleged are purely speculative. Plaintiffs argue that defendants were negligent by, in their motion for summary judgment in the underlying action and the appeal of that decision, admitting that Margaret Rivera was an employee of Park West. In the reply brief submitted by defendants in the Appeal to the Underlying Action, they argue for dismissal of a negligent hiring claim as against Park West, because a negligent hiring claim cannot be maintained against an employer, when the employer
is already liable under the theory of respondeat superior (Ennigier RIVERA, Plaintiff-Respondent, v. Md. Lr. BHUIYAN, Margaret Rivera and Park West Executive Services, Inc., Defendants-Appellants., 2016 WL 11543386, at *12). The First Department ruled that this argument was an admission that Margaret Rivera was an employee of Park West (Rivera v Bhuiyan, 149 AD3d 493, 494 [1st Dept 2017] [“Although Bhuiyan and Park West initially denied in the answer that defendant Rivera was operating the vehicle within the scope of her employment when the accident happened, in their reply affirmation, they concede the issue”]).

However, plaintiffs’ allegations that had defendants not allegedly conceded that Maragaret Rivera [sic] was an employee of Park West, they would not have suffered damages, rely on a conclusory assumption that the courts would have ruled that she was an independent contractor. Defendants note that in subsequent cases, courts have rejected Park West’s argument that its drivers were in fact independent contractors and found them vicariously liable (NYSCEF
Doc No 17)2. Furthermore, while plaintiffs argue that Margaret Rivera signed a contract which labeling her as an independent contractor, such a contract is not dispositive of the issue (Carlson v Am. Intern. Group, Inc., 30 NY3d 288, 301 [2017]). Therefore, plaintiffs’ allegations of proximate cause are too speculative to maintain a legal malpractice action, and the complaint must be dismissed.”

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]).”

Mohammad v Rehman 2025 NY Slip Op 01622 Decided on March 19, 2025 Appellate Division, Second Department has a Judiciary Law 487 claim which is dismissed on the pleadings as not bad enough. This is a very common CPLR 3211 decision in Judiciary Law 487 cases.

“In October 2019, the plaintiff commenced this action against the defendants Rockland Wholesale & Distributors, Inc. (hereinafter Rockland), and Amir Rehman (hereinafter together the defendants), among others, to recover payment of two loans the plaintiff allegedly made to Rockland.

In January 2020, the defendants commenced a third-party action against attorney Robert G. Delgrosso, among others, asserting causes of action to recover damages for fraud, civil conspiracy, and a violation of Judiciary Law § 487 arising from, inter alia, Delgrosso’s alleged fraudulent conduct in negotiating a settlement of a related prior action in New Jersey. In February 2020, Delgrosso moved pursuant to CPLR 3211(a)(7) to dismiss the third-party complaint insofar as asserted against him. In an order dated July 10, 2020 the Supreme Court granted Delgrosso’s motion. The defendants appeal.”

“Since the third-party complaint failed to connect the actions of Delgrosso to a cognizable cause of action to recover damages for fraud, the Supreme Court properly granted that branch of Delgrosso’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action in the third-party complaint alleging civil conspiracy insofar as asserted against him (see Clevenger v Yuzek, 222 AD3d at 936).

“Under Judiciary Law § 487(1), an attorney who ‘[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party’ is liable to the injured party for treble damages” (Altman v DiPreta, 204 AD3d 965, 968). “Relief pursuant to Judiciary Law § 487 is not lightly given, and requires a showing of egregious conduct or a chronic and extreme pattern of behavior on the part of the . . . attorney[ ]” (Kaufman v Moritt Hock & Hamroff, LLP, 192 AD3d 1092, 1093 [citation and internal quotation marks omitted]). Here, even when liberally construing the allegations in the third-party complaint in the light most favorable to the defendants, the allegations do not rise to the level of “egregious conduct or a chronic and extreme pattern of behavior” on the part of Delgrosso (id. [internal quotation marks omitted]). Therefore, the Supreme Court properly granted that branch of Delgrosso’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action in the third-party complaint alleging a violation of Judiciary Law § 487.”

Here, defendants oppose amendment, renew their opposition, and then take an appeal. The appeal fails.

“In May 2016, the plaintiffs commenced this action to recover damages for legal malpractice against the defendant, their former attorneys, who represented the plaintiffs in connection with leasing certain real property located in Manhattan. The plaintiffs amended the complaint in October 2016. In May 2021, the plaintiffs moved pursuant to CPLR 3025(b) for leave to serve a second amended complaint. In an order dated March 31, 2022, the Supreme Court granted the plaintiffs’ motion. Thereafter, the defendant moved for leave to renew its opposition to the plaintiffs’ motion. In an order dated January 26, 2023, the court denied the defendant’s motion. The defendant appeals from both orders.

“‘In the absence of prejudice or surprise resulting directly from the delay in seeking leave, applications to amend or supplement a pleading are to be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit'” (Toiny, LLC v Rahim, 214 AD3d 1023, 1024 [internal quotation marks omitted], quoting Myung Hwa Hang v Jang, 164 AD3d 803, 804; see CPLR 3025[b]). “The burden of demonstrating prejudice or surprise, or that a proposed amendment is palpably insufficient or patently devoid of merit, falls upon the party opposing the motion” (Ditech Fin., LLC v Khan, 189 AD3d 1360, 1362). “‘A determination whether to grant such leave is within the Supreme Court’s broad discretion, and the exercise of that discretion will not be [*2]lightly disturbed'” (1934 Bedford, LLC v Gutman Weiss, P.C., 219 AD3d 1271, 1272, quoting Gitlin v Chirinkin, 60 AD3d 901, 902).

Here, the record reflects that the proposed amendment was neither palpably insufficient nor patently devoid of merit. Moreover, while the plaintiffs’ motion pursuant to CPLR 3025(b) for leave to serve a second amended complaint was made almost five years after the complaint was first amended, “[m]ere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine” (Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [internal quotation marks omitted]; see Toiny, LLC v Rahim, 214 AD3d at 1024). Accordingly, the Supreme Court did not improvidently exercise its discretion in granting the plaintiffs’ motion (see Bisono v Mist Enters., Inc., 231 AD3d 134; Lennon v 56th & Park [NY] Owner, LLC, 199 AD3d 64, 74).”

Real Estate transactions and litigation take up a major space in the legal malpractice world. Lending Assets LLC v Gerbi 2025 NY Slip Op 31229(U) April 10, 2025 Supreme Court, New York County Docket Number: Index No. 152329/2023 Judge: Judy H. Kim is one such example.

“In this legal malpractice action, plaintiff alleges that on September 10, 2021, it loaned Gold Crescent Moon, LLC $325,000.00 to finance Gold Crescent’s purchase of property located at 5114 SW 153rd Place, Miami, Florida 33185, which loan was to be secured by a mortgage on that property (NYSCEF Doc No. 1, complaint at ,r,r5-6). Plaintiff further alleges that on September 23, 2021, it loaned $975,000.00 to Idea Holdings LLC to fund Idea Holdings’ purchase of property located at 3501 SW 132nd Avenue, Miami, Florida 33027, which loan was also to be secured by a mortgage on that property (id. at if8). Plaintiff alleges that defendants Weltz Kakos Gerbi Wolinetz Volynsky LLP and Gabriel Gerbi, Esq., a partner in that firm, acted as plaintiff’s attorney with respect to these “loan transactions” and had a “non-delegable duty” to obtain lender’s policies insuring the mortgages and “ensure the mortgages against [these properties] were recorded in first lien positions,” but failed to do so, and “obtained forged and fraudulent policies of title insurance from a non-existent ‘title insurance company’ rendering Lending Assets’ mortgages uninsured” (id. at ,r,r9-14). As a result, plaintiff claims, it sustained damages of $1,300,000.00, i.e. the total amount of the two unsecured loans (id. at ,r,r23-31 ). Defendants now move, pursuant to CPLR 321 l(a)(l) and (7), to dismiss the complaint, arguing that no negligence by defendants proximately caused plaintiff’s loss but that documentary evidence establishes that a third party, Apex Title Agency Incorporated, was responsible for insuring and recording the mortgages in question. In connection with this latter argument, defendants submit a complaint filed by plaintiff in the Circuit Court of the Tenth Judicial Circuit of Polk County, Florida against one Dora Ameneiro Martinez (“Martinez”) under case number 2023-CA-000542 (the “Martinez Complaint”)…”

“However, the branch of defendants’ motion to dismiss the complaint pursuant to CPLR 321 l(a)(l) is granted. Pursuant to CPLR 321 l(a)(l), “[d]ismissal is warranted only if the documentary evidence submitted utterly refutes plaintiffs factual allegations and conclusively establishes a defense to the asserted claims as a matter of law” (Amsterdam Hosp. Group, LLC v Marshall-Alan Assoc, Inc., 120 AD3d 431,433 [1st Dept 2014] [internal citations and quotations omitted]). The Martinez Complaint satisfies this standard and mandates the dismissal of this action. “It is well settled that admissions in a pleading may constitute documentary evidence for purposes of a motion to dismiss” (Walker, Truesdell, Roth & Assoc., Inc. v Globeop Fin. Services LLC, 43 Misc 3d 1230(A) [Sup Ct, NY County 2013], affd sub nom. New Greenwich Litig. Tr., LLC v Citco Fund Services (Europe) B. V, 145 AD3d 16 [1st Dept 2016] [internal citations omitted]) and that such a judicial admission “can be a basis for dismissal of the plaintiff’s claim” where it is “unrebutted and refute[ s] an essential element of a plaintiff’s claim” (Jack C. Hirsch, Inc. v Town ofN Hempstead, 177 AD2d 683,684 [2d Dept 1991]). Here, plaintiff’s allegations in the Martinez Complaint’s that it relied upon Apex to act as its title agent and record plaintiff’s mortgages in first position are a judicial admission refuting a central element of plaintiff’s claim in this action, namely that defendants’ representation of plaintiff included recording and insuring the subject mortgages. To the extent plaintiff asserts, in opposition, that the complaint also alleges that defendants breached their duty to plaintiff by failing to “inquire into the bona fides” of Apex, the complaint contains no such allegation or, indeed, any mention of either Martinez or Apex. In light of the foregoing, this matter is dismissed (see Epic Wholesalers and Star Diamonds & Jewelry, Inc. v JP. Morgan Chase Bank, NA., 31 Misc 3d 1237(A) [Sup Ct, Kings County 2011] [“admissions made by plaintiffs in the 2009 action and the bankruptcy court action refute an essential element of their claim in the present action, that the named and intended payee, Prestige, did not receive the funds … “]).”

Kakushadze v Skin Cancer & Aesthetic Surgery, P.C. 2025 NY Slip Op 31149(U) April 3, 2025 Supreme Court, Kings County Docket Number: Index No. 500196/2023 Judge: Ingrid Joseph seems to be (the decision does not discuss representation of plaintiff) the kind of issues that arise in pro-se cases.

“Plaintiff Zurab Kakushadze (“Plaintiff”) commenced this action against Defendants Skin Cancer & Aesthetic Surgery, P.C. (“SCAS”), Irene Vergilis-Kalner (“Vergilis-Kalner”) and Arkady Kalyuzhny (“Kalyuzhny”) ( collectively, “Defendants”), 2 asserting causes of action for ( 1) fraud, (2) violation of New York General Business Law§ 349 (a), (3) violations of New York Judiciary Law§ 487, and (4) a declaratory judgment. 3 The crux of Plaintiff’s action concerns medical records requested from SCAS on July 18, 2022, that were allegedly not provided in electronic form and were incomplete. Defendants move for an order: (i) pursuant to CPLR 3012 (b), dismissing Plaintiffs’ Complaint on the grounds that it was not timely served within 20 days after their Demand for a Verified Complaint; or alternatively, (ii) pursuant to CPLR 3211 (a) (7), dismissing Plaintiff’s causes of action (Mot. Seq. No. 1). Plaintiff opposes the motion.4 The Court will address each prong of Defendants’ motion separately. In their motion seeking dismissal under CPLR 3102 (b ), Defendants concede that SCAS was served with the Summons with Notice through the Secretary of State on January 4, 2023. They assert that on February 3, 2023, SCAS filed a Notice of Appearance and a Demand for a Verified Complaint. While Plaintiff did file a complaint on January 20, 2023, Defendants argue that this was not filed in response to a SCAS’s Demand for a Verified Complaint or in response to the Notice of Appearance. Thus, Defendants aver that Plaintiff did not timely serve his complaint, as required by CPLR 3012 (b). In opposition, Plaintiff argues that the statute is silent as to the deadline to electronically file a complaint. Once SCAS’s counsel consented to e-filing, Plaintiff contends that she was automatically served with the complaint. In addition, Plaintiff argues that he informed counsel, via email on February 3, 2023, that the complaint was previously e-filed and provided her with the relevant NYSCEF document number. In reply, Defendants maintain that Plaintiff did not follow the procedure outlined in CPLR 3012 (b) because the complaint was not served after the written demand was made. As an initial matter, the Court notes that CPLR 3012 (b) provides that the “court upon motion may dismiss the action if service of the complaint is not made” in compliance with this subsection (CPLR 3012 [b] [emphasis added]). Pursuant to CPLR 2001, “the court may permit a mistake, omission, defect or irregularity … to be corrected, upon such terms as may be just, or, if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded” (CPLR 2001). The Court of Appeals advised the following: In deciding whether a defect in service is merely technical, courts must be guided by the principle of notice to the defendant–notice that must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections (Ruffin v Lion Corp., 15 NY3d 578, 582 [201 O] [internal quotation marks and citations omitted]). Here, it is undisputed that Plaintiff’s Verified Complaint was already e-filed at the time SCAS’s counsel field a Notice of Appearance and Demand for Complaint. Plaintiff’s alleged failure to serve the complaint in response to SCAS’s Demand for Complaint “assuming arguendo there was a requirement that plaintiff do so although the complaint was already e-filed, is at worst, the kind of ‘technical, nonprejudicial’ mistake that occurs during the commencement phase of an action, including some aspects of service of process that could be disregarded pursuant to CPLR §2001″ (Hobbins v Linden Ctr. for Nursing & Rehabilitation, 2023 NY Slip Op 32658[U], *4-5 [Sup Ct, Kings County 2023] [emphasis in original]). Accordingly, that branch of Defendants’ motion seeking dismissal under CPLR 3102 (b) is denied.”

“Lastly, the Court addresses that portion of Defendants’ motion seeking to vacate Plaintiff’s third cause of action asserting that Kalyuzhny violated New York Judiciary Law § 487. Under Judiciary Law § 487 (1 ), an attorney who is “guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party … forfeits to the party injured treble damages, to be recovered in a civil action” (Judiciary Law § 487 [l]). “Relief pursuant to Judiciary Law § 487 is not lightly given … , and requires a showing of egregious conduct or a chronic and extreme pattern of behavior on the part of the defendant attorneys” (Kaufman v Moritt Hock & Hamroff, LLP, 192 AD3d 1092, 1093 [2d Dept 2021] [internal citations and quotation marks omitted]). “A cause of action alleging a. violation of Judiciary Law § 487 must be pleaded with specificity” (Betz v Blatt, 160 AD3d 696, 698 [2d Dept 2018]). In their motion, Defendants argue that Kalyuzhny is the Practice Manager at SCAS who also happens to be an attorney. Since Kalyuzhny was not acting in his capacity as an attorney, Defendants contend that § 487 does not apply. Even if it did apply, Defendants maintain that this cause of action fails because Plaintiff cannot establish that Kalyuzhny engaged in intentional deceit. In opposition, Plaintiff asserts that he is bringing this cause of action for Kalyuzhny’s acts and fraud in the medical malpractice action as an attorney. In particular, Plaintiff avers that Kalyuzhny acted as an attorney for SCAS before Hall Booth Smith, P.C. was retained by the insurance carrier. According to Plaintiff, in opposing his motion for a default in the medical malpractice action, SCAS claimed that its default was a result of law office failure. Since Hall Booth Smith, P.C. was not retained until after the default motion was filed, Plaintiff asserts that the “law office failure” is by Kalyuzhny. In reply, Defendants argue that Kalyuzhny is not acting as an attorney in the medical malpractice action. With respect to the law office failure, Defendants assert that it relates to administrative actions of the insurance carrier, not Kalyuzhny. Further, Defendants maintain that Plaintiff has not pied facts showing Kalyuzhny was engaged in intentional deceit or an extreme pattern of legal delinquency. Assuming arguendo that Kalyuzhny was acting as SCAS’s attorney during his communications with Plaintiff, the Court finds that Plaintiff failed to plead “sufficient facts to demonstrate an intent to deceive the court or any party” (Schiller v Bender, Burrows and Rosenthal, LLP, 116 AD3d 756, 759 [2d Dept 2014]; Grasso v Guarino, 227 AD3d 872, 873 [2d Dept 2024]).”