The words “legal malpractice” are mentioned only in passing, yet Medical Supply of NY Corp. v State Farm Mut. Auto. Ins. Co. 2025 NY Slip Op 50412(U) Decided on April 1, 2025 Civil Court Of The City Of New York, Kings County Roper, J. is a fascinating analysis of what is a signature. The notary (also an attorney) wrote “February” on the notary signature line rather than his name. Still a good notarization?

“Plaintiff proffered an affidavit, hereinafter referred to as Kuperman Affidavit, as a corroborating exhibit in opposition to Defendant’s Motion for Summary Judgment in a No-Fault case. The Kuperman Affidavit was offered to attest that all verification requests were timely responded to in rebuttal upon the shifting of the burden to Plaintiff to establish a triable issue of fact defeating Defendant’s judgment as a matter of law. Defendant did not object to the admissibility of the Kuperman Affidavit in its Reply to Plaintiff’s opposition. Rather, Defendant exhaustively and substantively argued against the contents and statements contained therein as sworn under oath truths. Defendant exhaustively availed itself of its full and fair opportunity to challenge the Kuperman Affidavit. However, it was at oral argument where Defendant first objected to the Kuperman Affidavit as being defective in form and thus inadmissible. The notarial acknowledgment contained the proper statutory stamp and statutory language dated 4th Day of February 2021 (CPLR 2106 pre — 1/1/2024 Amendment). Defendant argued however, [*2]
that the signature line above “Notary Public” written in script clearly and unequivocally failed to bear the notary’s signature and rather upon which was written the word “February” (Kuperman Affidavit, Plaintiff’s Exhibit A NYSCEF #14). Defendant therefore argued that the Kuperman Affidavit was inadmissible and could not be considered in the decision-making analysis since it was not duly signed with the name of the notary. Plaintiff counsel conducting its oral argument was the named notary public on the notarial stamp. Plaintiff did not argue that Defendant had waived its right to object to the form of the Kuperman Affidavit pursuant to CPLR 2001. Nor did Plaintiff argue that it was a Scrivener’s error to be disregarded as a mere technical defect or curable upon application for leave of Court to correct (CPLR 2001; KSP Constr., LLC v LV Prop. Two, LLC, 224 AD3d 58, 60 [1st Dept 2024]). Rather, Plaintiff’s counsel countered that the written “February” in and of itself is his written signature. Plaintiff’s counsel further stated that he is the attorney at law notary public who signed the Kuperman Affidavit as “February”, which is his signature.[FN1] Succinctly, Plaintiff’s counsel as the notary public argues that his signature is whatever he says it is and he is stating that he handwrote in script “February” above the notary public line and it is his signature thereby rendering the Kuperman Affidavit not defective and therefore admissible. This Court therefore ordered memoranda of law, inter alia, on the Question: What is a signature?”

“The quite ordinary task of signing with a uniquely scripted flourish of an individualized signature [FN2] , whether for the pleasantries of a thank you note, the solemnity of a Will, or the gravitas of legally binding documents in commerce, is generally taken for granted until consequences of its unlawful reproduction. From its ancient beginnings, methods of individualized personal identification and authentication had taken many forms.[FN3] However, archeologically the oldest first known signature in the form of a stamped name on a clay tablet [*3]by the signatory [FN4] was in 3000BC. Although the scripted signature had been in use for centuries, it was legally codified into English law in 1677 by the enactment of the Statute of Frauds, which was also adopted by the American colonies at the time. Thereby mandating enforceable contracts shall be in writing and bear the signature [FN5] of the party to be legally bound as validation of the obligations contained therein. The signature has been defined as: “1a: the act of signing one’s name to something; 1b: the name of a person written with his or her own hand;”[FN6] “The term signature includes any memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing.” (NY CLS Gen Const § 46). “A signature is made by use of any name, including any trade or assumed name, upon an instrument, or by any word or mark used in lieu of a written signature” (NY CLS UCC § 3-401[2]). Although having its origins in ancient times and still recognized for the untrained, ill, or disabled is the signature by mark, “an indication usually in the presence of witnesses by a distinctive sign or mark (such as an X) of acquiescence in or assent to the content of a document by one unable to write”[FN7] “The most important feature of a signature is that it reflect the intent of the signatory (People v Rodriguez, 50 Misc 3d 1223[A], 2016 NY Slip Op 50248[U] [Crim Ct, Queens County 2016], citing People v Lo Pinto, 27 AD2d 63 [3d Dept 1966]). To that end, courts have routinely upheld various forms of markings as a valid signature” (id. citing In re Mack’s Will, 21 AD2d 205 [3d Dept 1964] [it is immaterial how a person signs his name or adopts his signature); Mohawk Airlines, Inc. v Peach, 81 Misc 2d 211 [Sup Ct, Oneida County 1974] [typewritten initials qualify as a signature]; Brooklyn City R.R. Co. v City of New York, 139 Misc. 691, 248 NYS 196 [1930] [printed, typewritten or lithographed signature held valid so long as adopted as such).

Although the intent of the principal signatory to the substance of the document may be an element as to whether an adopted marking is indeed the signature of the principal signatory, not [*4]so for the notary public. The probing into the intent of the notary public’s signature in authenticating the signature of the principal signatory is antithetical to the legislative purpose of the notary public laws. The Notary public laws’ legislative purpose is to provide certitude of authentication by a governmental official licensed notary public. Although New York Law states that the notary stamp as the official statement of authority is required to include the name in black ink, it does not specifically state that a notary’s signature must be the name of the notary public, nor shall it be as affixed upon its oath of office as filed in the county clerk’s office. However, the “American Association of Notaries always recommends using your official, handwritten signature, exactly as it appears on your oath of office.”[FN8] Thus for certitude of authentication as well as for an enhanced fraud deterrent, the notary public’s signature, whatever form it may take should be consistent with the signature as affixed upon the oath of office filed with the licensing county clerk’s office as an industry standard.[FN9]“

“Nevertheless, such a defect in form is not fatal and may be rehabilitated within the discretion of the court. It has been held that where the notarial signature was omitted from a document it is considered a technical defect, where the defect is not jurisdictional in nature and where there is no undue nor substantial prejudice to a substantial right, then said defect may be disregarded or curable by subsequent affidavit: “Contrary to the defendants’ contention, the Supreme Court properly considered the expert affidavit submitted by the plaintiffs on that issue, since the notary’s failure to sign the jurat was a technical defect which could be disregarded in the absence of substantial prejudice to the defendants” (see CPLR 2001; Carter v Grenadier Realty, 83 AD3d 640, 642 [2d Dept 2011]) citing Baluchinsky v General Motors Corp., 248 AD2d 574, 575, 670 NYS2d 536 [1998]; Supreme Automotive Mfg. Corp. v Continental Cas. Co., 97 AD2d 700, 700, 468 NYS2d 125 [1983]). “[T]he court disregarded Ms. Kim’s affidavit because of two technical defects: (1) the notary’s signature on the affidavit was illegible; and (2) there is no indication what date in April 1998 the document was notarized” (Seoulbank, NY Agency v D&J Export & Import Corp., 270 AD2d 193, 194 [1st Dept 2000]) citing Baluchinsky v GMC, 248 AD2d 574, 575 [2d Dept 1998]; Supreme Auto. Mfg. Corp. v Cont. Cas. Co., 97 AD2d 700 [1st Dept 1983]; see also, Pasqualini v Tedesco, 248 AD2d 604 [2d Dept 1998]; Lane Crawford Jewelry Ctr. v Han, 222 AD2d 214 [1st Dept 1995]). “Given the lack of prejudice to a substantial right of the defendant, the Supreme Court should have disregarded the defect in the affidavit of the plaintiff’s expert and should have considered the affidavit in opposition to the defendant’s motion (see, CPLR 2001; Baluchinsky at 575, citing Supreme Automotive; see also, [*6]Lauer v Rapp, 190 AD2d 778 [2d Dept 1993]). “[T]he single defect in the search warrant application is that the jurat was not signed. The jurat is, however, ‘simply evidence of the fact that the oath was properly taken before a duly authorized officer. It is no part of the oath’, and its absence is a defect curable by subsequent affidavits or testimony” (People v Zimmer, 112 AD2d 500, 501 [3d Dept 1985], citing People ex rel. Fifth Ave. & 37th St. Corp. v Miller, 261 AD 550 [1st Dept 1941]; see, Supreme Automotive Mfg. Corp. v Continental Cas. Co., 97 AD2d 700). “We reject plaintiff’s contention that Supreme Court erred in permitting defendant owners to correct, in reply, the defects in Kellam’s original affidavit neither signed nor notarized; however, defendant owners submitted a signed and notarized affidavit from Kellam in reply” (KSP Constr., LLC v LV Prop. Two, LLC, 224 AD3d 58, 66-67 [1st Dept 2024]). “The notary’s failure to sign the investigator’s affidavit is the type of defect which a court may permit to be corrected upon such terms as are just or, if a substantial right of a party is not prejudiced, disregard” (CPLR 2001; Supreme Automotive at 700 citing People ex rel. Fifth Ave. & 37th St. Corp. at 553-554). Herein, Defendant duly availed itself of the opportunity to full and fair exhaustive challenge to the Kuperman Affidavit in its Reply yet failed to object as to its inadmissibility in its form of notarization and therefore it cannot be found that Defendant is unduly prejudiced by its consideration. Moreover, it is found that Defendant has not been deprived of a substantial right and therefore further not prejudiced, such that this defect in the notarial signature is held as disregarded. Further, Defendant waived its right to object to the defect in form pursuant to CPLR § 2001. The Kuperman Affidavit is hereby ruled admissible and is being considered. Defendants have satisfied its burden for judgment as a matter of law. However, upon the shifting of the burden, Plaintiff has satisfied its burden in rebuttal establishing a scintilla of a triable issue of fact as to the Outstanding Verification Requests.

For the foregoing reasons, the answer to the Question as to what is a signature? A signature is whatever the signatory says it is. However, a notarial signature must be consistent with the signature affixed upon the oath of office filed with the licensing county clerk’s office.”

Link Motion Inc. v DLA Piper LLP (US) 2025 NY Slip Op 30568(U) February 14, 2025 Supreme Court, New York County Docket Number: Index No. 653322/2022 Judge: Andrew Borrok has an unusual opening line stating that the only question really before the court is whether to sanction plaintiff or not.

“Upon the foregoing documents as discussed on the record (trs. 2.6.25, 2.14.25) and for the reasons set forth below, the question is not whether DLA Piper LLP (US) and Caryn G. Schechtman (collectively, DLA)’s motion (Mtn. Seq. No. 003) to dismiss the Amended
Complaint (the AC; NYSCEF Doc. No. 29) should be GRANTED. There is no question that
under New York law, it must be. The crucial issue is only whether the branch of DLA’s motion (Mtn. Seq. No. 004) seeking sanctions against Link Motion Inc. (Link Motion) under Rule 130-1.1 should be granted. Two federal jurists have answered this question affirmatively under Rule 11. Upon further review after oral argument and following the additional questions asked of Link Motion (tr. 2.14.25), this Court is compelled to grant the branch of the motion seeking reasonable attorney’s fees and costs in having to defend this litigation. Simply put, it would be an improvident exercise of discretion not to award sanctions under the circumstances (see Ray v Ray, 232 AD3d 497, 499 [1st Dept 2024]).”

“Plaintiff filed this legal-malpractice, shareholder-derivative complaint, on behalf
of Link Motion Inc. (“Link Motion”), on December 20, 2021. See ECF No. 1
(“Compl.”) ¶¶ 1-2. The legal-malpractice allegations in the Complaint relate to
conduct by Defendants that occurred in a separate lawsuit filed by Wayne Baliga
against Link Motion and several of its officers and directors, including Dr.
Vincent Wenyong Shi (“Shi”). See ECF No. 1 ¶¶ 1-2, No. 18-CV-11642.
Baliga commenced his suit on December 13, 2018, alleging that Shi and others
were looting the company of its most valuable assets and seeking the appointment of an independent receiver to prevent further dissipation of the company’s
assets. Id. ¶¶ 15-22, 31, 37. That same day, Baliga notified Schechtman and DLA
Piper via e-mail of the filing of the complaint and of Baliga’s intent to file an
Order to Show Cause (“OSC”) the next day, seeking a Temporary Restraining
Order (“TRO”). See ECF No. 37-1; Compl. ¶ 50. On December 13, Schechtman
forwarded the e-mail from Baliga’s counsel to Shi and another Link Motion
director, asking them to “[p]lease instruct DLA if you would like us to respond.”
ECF No. 37-1 at 2. Schechtman also stated that they “should have a call
immediately to discuss—as action will be taking place tomorrow,” and she added
that “DLA has still not received a retainer so we would need to receive that as
well.” Id. Later that same day, Schechtman followed up, asking Shi, “[d]id you
see the lawsuit that was filed. They are going into court in 12 hours to get a
restraining order against the company.” ECF No. 37-2 at 5. The next day,
December 14, Schechtman asked Dr. Shi, “Do you want me to send an
associate?” Id. at 4. Shi responded, “OK, thanks.” Id. Schechtman subsequently
told Shi in an e-mail that DLA Piper would “send an associate to Court in 12
hours to advise the Court that we have received no instruction from the Company
due to the time difference and language barriers. It is possible that the Court will
grant the application anyway.” See ECF No. 37-3 at 2. Schechtman added, “How
would you like us to handle?” Id.
On December 14, Baliga filed an OSC, seeking a TRO. See ECF No. 7, No. 18-
CV-11642; see also Compl. ¶ 48. Defendants appeared on behalf of Link Motion
at the hearing before the Court. Compl. ¶¶ 52, 58. On December 14, the Court
entered a TRO, restraining and enjoining Link Motion, Dr. Shi, and the other
defendants, from liquidating, transferring, or dissipating any assets of the
company. ECF No. 7, No. 18-CV-11642.”

[Many additional facts and events are omitted here for lack of space, but can be reviewed in the linked case]

“Defendants are correct that sanctions under Rule 11 are appropriate here. In
commencing the instant action, neither Plaintiff nor its counsel could have
reasonably believed that the allegations in the Complaint—concerning Link
Motion’s purported inability to transfer the FL Mobile shares because of the
appointment of the Receiver—had evidentiary support. Likewise, Plaintiff’s
legal-malpractice claims suffers from multiple deficiencies that viewed
collectively should have led counsel to conclude that the claim had no chance of
success. Finally, Defendants raised all of these grounds in a letter to Plaintiff’s
counsel on March 7, 2022. See ECF No. 16. Plaintiff nevertheless declined to voluntarily withdraw the action until six months later, in September
2022, see ECF No. 22, but only after Plaintiff’s counsel filed a similar lawsuit,
this time on behalf of Link Motion, against Defendants in state court. See ECF
No. 1, No. 22-CV-8313. Then, after the direct legal-malpractice claim by Link
Motion was dismissed with prejudice by Judge Marrero, Plaintiff baselessly
argued that it should be permitted to withdraw its voluntary dismissal of this
action and amend the Complaint. Simply put, Plaintiff’s decision to continue
pursuing this legal-malpractice claim against Defendants is objectively
unreasonable and can only be viewed as an attempt to harass Defendants and
cause reputational harm.”

In Stumacher v Medical Liab. Mut. Ins. Co. 2025 NY Slip Op 31014(U) March 31, 2025 Supreme Court, New York County Docket Number: Index No. 157477/2024 Judge: Judith N. McMahon, one of three physicians sues for bad faith by his insurance carrier and legal malpractice by his defense attorney.

Three physicians are represented by one law firm in a medical malpractice case, with MLMIC as the sole insurer. The case could have been settled within the policy limits, but the law firm and MLMIC refused to settle. Instead of settling within the policy limits, a verdict for 105 Million ensued. Is there a bad faith or legal malpractice claim here?

“Upon the foregoing documents, the defendants’ pre-answer CPLR 3211 (a) motions to dismiss portions’ of plaintiff’s complaint, as made by the defendant MLMIC Insurance Company, formerly known and sued herein as Medical Liability Mutual Insurance Company (hereinafter “MLMIC”) (Motion Seq. No. 001) and the defendants, Marshall Dennehey Warner Coleman & Goggin a/k/a Marshall Dennehey, P.C. (hereinafter “Marshall Dennehey”) and Kevin Ryan (hereinafter “Attorney Ryan”), are denied.”

“In his 29-page four count Complaint (see NYSCEF Doc. No. 6) Dr. Richard Stumacher, (one of several defendant physicians in an underlying medical malpractice case entitleKeimoneia Redish v. Darryl Adler, et., al., Supreme Court, Bronx County, Index No: 310294/2011 ), sets forth causes of action against his medical malpractice liability carrier, MLMIC, for: (1) acting in bad faith by, inter alia, assigning a single law firm to represent Dr. Stumacher and two other physicians–with competing interests–and failing to settle the underlying Redish case within Dr. Stumacher’s policy limits (“First” Cause of Action); (2) breaching its contractual covenant of good faith and fair dealing (“Second” Cause of Action); (3) punitive damages in the amount of$20,000,000.00 (TWENTY MILLION DOLLARS) for “placing its own business and financial interests in conducting bad faith insurance claims practices over and above the financial and business interests of millions of claimants injured by MLMIC insureds nationwide … “(“Third” Cause of Action; see NYSCEF Doc. No. 6 para 103) and, as against the remaining defendants Marshall Dennehy and Attorney Ryan, for (4) legal malpractice in their representation of Dr. Stumacher during the Redish trial (“Fourth” Cause of Action). It is undisputed that the plaintiff, Keimonieia Redish, was hospitalized at St. Barnabas Hospital from December 4, 2010, through January 25, 2011, for treatment of severe asthma. During her stay, where she received care from several physicians including MLMIC insureds Darryl Adler, M.D., Ronald Ciubotaru, M.D., and Dr. Stumacher2, Mrs. Redish suffered a neurological insult resulting in brain damage, confinement to a wheelchair, and difficulty speaking and communicating. On April 12, 2019, a jury returned a verdict in Redish’s favor for $60 MILLION dollars for past pain and suffering, $30 MILLION dollars for future pain and suffering, and $15,100,000.00 in economic damages. The pain and suffering award was reduced to $10 MILLION on appeal, and the present value of the judgment, as of the date of entry, is $22,926,519.82 with statutory interest running from January 23, 2020. The jury held Dr. Stumacher 25% at fault for Mrs. Redish’s injuries.”

“Dr. Stumacher alleges that, unbeknownst to him, on or about April 3, 2019, Redish’s counsel submitted a written demand to MLMIC and Marshall Dennehy offering to settle all claims against Dr. Stumacher for his $2.3 million dollar policy limits, that MLMIC failed to offer its $1 .3 million primary policy limits (and accordingly, did not trigger the excess carrier’s obligation), and that as a result, Dr. Stumacher was exposed to a judgment far in excess of his policy limits, for which he remains jointly and severally liable.”

“In support of the CPLR 321 l(a)(l) branch of its motion, movants [Attorneys] argue that “undisputed documentary evidence” demonstrates that Marshall Dem1ehey repeatedly provided Dr. Stumacher with timely and comprehensive reporting on exposure risks, settlement developments, and analysis of the strategic decision to proceed with joint representation. These unauthenticated documents, entitled “Memo to File,” are attached as exhibits F through H to the motion. Movants further maintain, in support of dismissal under CPLR 3211 (a)(7), that plaintiffs theory of proximate causation is impermissibly speculative and fails as a matter of law, since a potential for settlement within policy limits depended on the uncontrolled conduct of the codefendant physicians and St. Barnabas Hospital. In opposition, plaintiff is emphatic that he has set forth a cognizable cause of action sounding in legal malpractice against Marshall and Dennehey and Attorney Ryan by alleging, inter alia, (1) that Marshall and Dennehey improperly represented Dr. Stumacher and the other MLMIC insured physicians, who were not united in interest, for the firm’s own financial gain; (2) that Marshall and Dennehey failed to inform Dr. Stumacher that he had the right to retain independent counsel at MLMIC’s expense, and (3) that the firm failed to inform Dr. Stumacher of and failed to respond to the bad faith statement tendered by Mrs. Redish’s counsel toward the end of the underlying trial. Motion Seq. No. 002 is likewise denied. Here, there is no documentary evidence such as a general release or an agreement to arbitrate that would be evidence to dismiss the complaint under CPLR 3211 (a) (1). Evidence recognized under the law. must be in admissible form and properly authenticated (Doe v. Intercontinental Hotels Group, P LLC 193 AD3d 410 [1 st Dept. 2021 ]). Plaintiffs may amplify these allegations in a bill of paiticulars (see JG v. Goldfinger, 161 AD3d 640, 641 [1st Dept. 2018]). Plaintiff argues that defendants are attempting to improperly and prematurely move for summary judgment before issue has joined and before discovery has ensued, when all that is necessary at this pre-discovery stage to defeat a 3211 a motion is for the plaintiff to state a cognizable cause of action Movants’ attempt to have the complaint dismissed at this stage for failure to prove proximate cause is not ripe for discussion at this juncture.”

In 99th Ave. Holdings, LLC v Schatz 2025 NY Slip Op 30979(U) March 13, 2025 Supreme Court, New York County Docket Number: Index No. 151688/2024 Judge: Emily Morales-Minerva defendant attorney argued that he was the transactional attorney for negotiations by a business owner with the landlord, and that once trial counsel was hired, he was no longer subject to “continuing representation. On this motion, he lost the argument. That may eventually change on summary judgment.

“On or about April 20, 2015, plaintiff, 99TH AVENUE HOLDINGS, LLC (plaintiff), entered into a Lease Agreement (the Lease) with non-party New York Communications Center Associates, LP, (Landlord) for the premises located at 350 West 50th Street, New York, NY, ground-floor, operated as TMPL Gym (the Gym) (see New York State Court Electronic Filing System [NYSCEF] Doc. No. 26, Lease) . Pursuant to Paragraph 78 of the Lease, entitled “Landlord’s Contribution”, Landlord agreed to reimburse plaintiff up to $3,750,000.00 for renovation costs — tenant improvement funds” — incurred by plaintiff within the first year of the lease term (see id. at 1 78 [A]). The Lease further provided as follows:

{C) [Landlord] shall pay t o [plaintiff] the remaining 10% [$375,000.00] of the [$3, 750,000.00] promptly following the later to occur of the date ( i) [plaint iff] opens for business to the general public in the demised premises and ( ii) [plaintiff] shall deliver to Landlord all Building Department Filing document s, permit s, and approvals, or such other evidence reasonably satisfactory to Landlord that the work is i n compliance with the Law [] ” (D) Notwithstanding the foregoing, [plaintiff’ s ] right t o collect Landlord’s Contribution shall exist only with respect to costs actually incurred by Tenant within the first year of the Term [], and to t he extent not utilized within such period, Landlord’ s Contribution shall be deemed waived by Tenant and Landlord shall be under no further obligation to make any further payments to Tenant [] . ” (id.). In October of 2016, plaintiff and non-party TSI Hell ‘s Kitchen, LLC (TSI) entered into discussions to sell the Gym to TSI (see NYSCEF Doc. No . 002, Complaint). Plaintiff retained defendant LARRY H SCHATZ (defendant) to represent plaintiff for t he purposes of this sale (see i d. ) . In accordance with t he sal e, defendant drafted and negotiated an Asset Purchase Agreement (APA) and Assignment and Assumption of Lease {Assignment) on behalf of plaintiff. On or about November 22, 2017, plaintiff, represented by defendant, and TSI entered into t he APA and Assignment (see NYSCEF Doc. No. 003 , APA, dated November 22, 2017; see also NYSCEF Doc. No. 004, Assignment, dated December 11, 2017). Defendant a l so drafted and negotiated a Consent Agreement, entered into between plaintiff and Landlord on December 12, 2017 (see NYSCEF Doc. No. 004, Consent Agreement, dated December 12,2017}. The Consent Agreement required plaintiff to “obtain a temporary certificate of occupancy (TCO} in connection with certain alterations performed by tenant [plaintiff] in the premises in respect of the permitted use” (id. at~ 3[a]}. It also provided that, “failure of [plaintiff] to have obtained the TCO as of the date of this Consent . . shall not be deemed to be a default under the Lease, provided and on the condition, that [plaintiff] shall promptly undertake and proceed with diligence to obtain such TCO” (id.). Pursuant to the same, plaintiff was required to give $250,000.00 to Landlord to hold in escrow until plaintiff obtained the TCO (see id. at~ 3 [b)} 2 Thereafter, in accordance with the Consent Agreement, plaintiff deposited $250,000.00 with Landlord, who had also held the $375,000.00, representing ten percent of the $3,750,00.00 owed to plaintiff for renovation expenses (the TI Funds) (see NYSCEF Doc. No. 002, Complaint). In total, Landlord retained $625,000.00. On or about September 22, 2020, the City of New York issued the TCO with an effective date of September 29, 2020 (see NYSCEF Doc. No. 005, TCO, dated September 29, 2020). However, Landlord refused to release the $625,000.00 to plaintiff because TSI had failed to make rent payments pursuant to the Lease, which plaintiff had assigned to TSI (see NYSCEF Doc. No. 002, Complaint) . On October 8, 2020, defendant demanded that Landlord release the TI Funds “of $375,000.00 as a final payment of [the] Tenant Improvement Allowance due to [plaintiff] plus the sum of $250,000.00 as security for the issuance of a TCO [] which has been issued” (NYSCEF Doc. No. 006, Demand Letter, dated October 08 , 2020) . Landl ord refused to release the funds. Consequent ly, on October 26, 2020, plaintiff commenced an action against TSI and Landlord to recover, among other things, the $625,000 .00 in funds all egedly belonging to plaintiff (see 99th Avenue Holdings , LLC v TSI Hell’s Kitchen LLC, New York Communications Center Associates, LP, SL Green Management, LLC a nd RXR Realty LLC, Index No . 655667/ 2020 [A. Engoron, J .S.C.] [Sup Ct, NY Cnty] [TSI Litigation] ) . Plaintiff retained non-party Thomas Shanahan, Esq. (TSI Litigation counsel), to represent it in the TSI Litigation. Throughout the TSI Litigation, TSI Litigation counsel and plaintiff continued to confer with defendant (see NYSCEF Doc. No . 18, Email Exchanges between plaintiff, defendant, and TSI litigation counsel, dated November 5, 2020, through October 5, 2021). Though plaintiff successfully recovered the $250, 000. 00, the court (A . Engoron, J.S.C.) declined to award plaintiff the remaining $375,000.00 (see NYSCEF Doc. No. 12, TSI Litigation Decision and Order, dated September 05, 2023).”

“Here, on October 8, 2020, defendant demanded that Landlord release the $625,000.00 to plaintiff, which Landlord refused to do (see NYSCEF Doc. No. 006, Demand Letter, dated October 8, 2020). Thereafter, on October 26, 2020, plaintiff commenced the TSI Litigation against Landlord to recover the $625,000.00, and retained new counsel to represent it in that proceeding. As a general rule, the retention of the TSI Litigati on counsel ended the attorney-client relationship between plainti ff and defendant (see Steinberg v Schnapp, 73 AD3d 171, 176 [1st Dept 2010]; see also Cohen v Grainer, Tesoriero & Bell , 81 NY2d 655, 658 [1993] Cerio v Koldin, 289 AD2d 1080 [4th Dept 2001) [finding that attorney-client relationship ceased to exist when plaintiff retained new counsel). Therefore, defendant avers that the l egal malpractice cause of action accrued on or before October 26, 2020, and this action, commenced on February 25, 2024, is barred as untimely. However, plaintiff alleges that defendant conti nued to confer with plaintiff and TSI Litigation counsel, as well as provide legal advice and defense strategies, throughout the entirety of the TSI Litigation, thereby tolling the statute of limitations pursuant to the continuous representation doctrine. “The continuous representation doctrine tolls the statute of limitations . where there is a mutual understanding of the need for further representation on the specific subject underlying the malpractice claim” (Zorn v Gilbert, 8 NY3d 933, 934 [2007] quoting McCoy , 99 NY2d at 306). “For the continuous representation doctrine t o apply t o an action sounding in legal malpractice, there must be clear indicia of an ongoing, continuous, developing and dependent relationship between the client and the attorney, which often includes an attempt by the attorney to rectify the alleged act of malpractice” (LavelleTomko v Aswad & Ingraham, 191 AD3d 1142, 1145 [3d Dept 2021] quoting Intl. Electron Devices (USA) LLC v Menter, Rudin & Trivelpiece, P.C., 71 AD3d 1512, 1513 [4th Dept 2010]).”

“At this juncture, particularly because plaintiff retained new counsel in the TSI Litigation, the court can not determine whether the continuous representation doctrine tolled the statute of limitations. There are issues of fact as to whether defendant’s conferral with plaintiff and TSI Litigation counsel from October 22, 2020, through October 5, 2021, constitutes an attempt to rectify the alleged malpractice; whether there was a clear delineation of an ongoing and continuous relationship between plaintiff and defendant, and mutual understanding of the same; and whether the sale of the Gym and the TSI litigation were part of a continuing, interconnected representation (see Red Zone LLC v Cadwalader, Wickersham & Taft LLP, 27 NY3d 1048, 1050 [2016] [finding that questions of fact exist regarding whether the statute of limitations was tolled by the continuous representation doctrine in light of “the absence of any clear delineation of the period of such representation and “the changed nature of the alleged legal representation”]; see also Berger & Assoc. Attorneys, P.C. v Reich, Reich, & Reich, P.C., 144 AD3d 543 [1st Dept 2016]; Davis, 160 AD3d at 486).”

Scott v Schwartz 2025 NY Slip Op 01849 Decided on March 27, 2025 Appellate Division, Third Department is an appeal from the most complicated and difficult kind of case that exists. It is a legal malpractice case based upon claimed mistakes made in a medical malpractice case which is based upon mistakes made by an nursing home in the treatment of an ill 89 year old. The legal malpractice case and the medical malpractice case are full of errors, and illustrate a common theme of starting a case and then exiting that case when difficulties ensue.

“Bernice Scott (hereinafter decedent) was 89 years old and suffering from, among other things, Alzheimer’s disease when she became a resident of a nursing home operated by the County of Albany. Following decedent’s death in 2014, plaintiff, decedent’s son and executor of decedent’s estate, retained defendants Schwartz Law Firm and Charles R. Schwartz (hereinafter collectively referred to as SLF) to represent him in an action against the County for, among other things, alleged negligence in the care of decedent. SLF commenced plaintiff’s action against the County by filing a summons with notice on February 10, 2016. In May 2016, after receiving two expert medical opinions concluding that the County did not fall below the standard of care in providing medical care and treatment to decedent, SLF informed plaintiff that the firm could not continue to represent him. SLF advised plaintiff that, to preserve any potential claim against the County, he should retain different counsel and arrange service of the summons with notice on the County on or before June 9, 2016 (see generally CPLR 306-b). Service of the summons with notice was effected by an attorney not associated with any defendant. The County promptly demanded a complaint on or about June 23, 2016, starting plaintiff’s 20-day period to serve one (see CPLR 3012 [b]). The 20-day period expired in July 2016.

Meanwhile, plaintiff asked defendants Rehfuss Law Firm, PC and Stephen J. Rehfuss (hereinafter collectively referred to as RLF) to represent him in the action against the County. RLF was substituted as counsel in August 2016 and engaged a medical expert to opine on whether the County met the standard of care. That expert withdrew two weeks later, citing a conflict of interest, prompting RLF to engage a second medical expert to render an opinion. After receiving a report from that expert concluding that there was causation between the County’s conduct and decedent’s death, RLF filed the complaint in January 2017 and served it on the County in February 2017. The County rejected the complaint as untimely, and Supreme Court (McDonough, J.) subsequently denied plaintiff’s motion for an extension of time to serve the complaint and granted the County’s cross-motion to dismiss the action — which order was affirmed by this Court (Scott v County of Albany, 170 AD3d 1475 [3d Dept 2019], lv denied 34 NY3d 904 [2019]).”

“In 2019, plaintiff commenced this action against defendants, alleging, as relevant here, that the failure of SLF and RLF to timely file and serve a complaint in the action against [*2] the County, or timely move for an extension of time to do so, constituted legal malpractice. Following joinder of issue and discovery, defendants moved for summary judgment dismissing the complaint, and plaintiff cross-moved for summary judgment on defendants’ liability. Supreme Court (Platkin, J.) denied plaintiff’s cross-motion, granted SLF’s motion and partially granted RLF’s motion, leaving a breach of contract claim against RLF intact.[FN1] Plaintiff appeals, contending that the court erred in dismissing the legal malpractice claims.”

“SLF satisfied its initial burden of showing the absence of causation by establishing that plaintiff would not have prevailed in the underlying action. To that end, SLF submitted, among other things, the expert affidavit of Sharon Brangman, a geriatric medical doctor who reviewed decedent’s medical records, as well as numerous other documents, and concluded that the nursing home did not deviate from the standard of care while caring for decedent. Brangman explained that the 89-year-old decedent was weak and frail upon admission to the nursing home from the hospital, and was suffering from dementia, atrial fibrillation, hypertension, dysphagia, chronic kidney disease, gallbladder/liver disease, osteoporosis, incontinence and had been the victim of elder abuse. Brangman outlined, in detail[*3], how these multiple comorbidities resulted in decedent’s deteriorating health and ultimately her death, and found no deviation in the standard of care with respect to the treatment and care provided to decedent.

As SLF presented sufficient evidence that plaintiff would not have prevailed in the action against the County (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442), the burden shifted to plaintiff to raise a triable issue of fact. Plaintiff failed to meet this burden. Plaintiff submitted the above-mentioned physician’s report, which was unsworn and unaccompanied by an affidavit, concluding that there was a deviation from the standard of care and treatment provided to decedent. This report was not in admissible form and therefore was insufficient to raise a triable issue of fact that, but for SLF’s alleged legal malpractice, plaintiff would have prevailed in the action against the County (see Buczek v Dell & Little, LLP, 127 AD3d at 1123). As such, Supreme Court properly granted SLF’s motion for summary judgment (see id. at 1124).

Plaintiff’s cross-motion also relies on the above-mentioned inadmissible report to establish RLF’s liability for the loss of a meritorious claim against the County. Accordingly, Supreme Court appropriately searched the record and, finding Brangman’s affidavit, awarded summary judgment to RLF dismissing the legal malpractice claim against it (see Humbert v Allen, 89 AD3d 804, 807 [2d Dept 2011]; Sand v City of New York, 83 AD3d 923, 926 [2d Dept 2011]).

Finally, plaintiff asserts that Supreme Court erred in relying on CPLR 3012-a to find that RLF could not be liable for legal malpractice. That provision requires, as relevant here, that a certificate of merit accompany a complaint in an action for medical malpractice (see CPLR 3012-a [1]). According to plaintiff, his action against the County was not one for medical malpractice but instead negligence. This issue, raised for the first time on appeal, is unpreserved for our review as plaintiff did not oppose defendants’ motions on this ground (see Marshall v City of Albany, 184 AD3d 1043, 1044 [3d Dept 2020]; see generally Henry v New Jersey Tr. Corp., 39 NY3d 361, 367 [2023]). In any event, were we to consider plaintiff’s contention, we would find it to be without merit as the facts alleged in the underlying compliant relate to medical treatment and care rather than ordinary negligence by the nursing home, which is “not within the ordinary experience and knowledge of laypersons” (Dunbar v Women & Children’s Hosp. of Buffalo, 217 AD3d 1373, 1374 [4th Dept 2023] [internal quotation marks and citation omitted]; see also Currie v Oneida Health Sys., Inc., 222 AD3d 1284, 1288 [3d Dept 2023]).”

A claim unique to the legal malpractice world is that of privity of contract. Long ago left behind in most spheres of the law (see: products liability), privity is still required in order to sue an attorney for departures from good practice. While there is a slim exception for fraud, collusion, malice and other special circumstances, it is the general rule that you can sue your attorney, but not someone else’s. We see the consequences in Caputo v Tubiolo 2025 NY Slip Op 01532 Decided on March 14, 2025 Appellate Division, Fourth Department

“Memorandum: Plaintiff, a medical doctor, commenced this legal malpractice action alleging that defendants were negligent in their representation of plaintiff with respect to charges asserted against him by the New York State Office of Professional Medical Conduct (OPMC). Supreme Court granted defendants’ motion seeking summary judgment dismissing the complaint and denied plaintiff’s cross-motion seeking, inter alia, leave to amend the complaint to conform the pleadings to the proof and summary judgment on the complaint. We affirm.

We conclude that defendants met their initial burden on their motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). “In order to establish their entitlement to judgment as a matter of law, defendants had to present evidence in admissible form establishing that plaintiff[ ] [is] ‘unable to prove at least one necessary element of the legal malpractice action’ ” (Seubert v Marchioni, 112 AD3d 1370, 1371 [4th Dept 2013], lv denied 22 NY3d 865 [2014]), e.g., that defendants ” ‘failed to exercise that degree of care, skill and diligence commonly possessed by a member of the legal community’ ” (Phillips v Moran & Kufta, P.C., 53 AD3d 1044, 1044-1045 [4th Dept 2008]; see Scartozzi v Potruch, 72 AD3d 787, 789-790 [2d Dept 2010]; see generally Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). Here, plaintiff alleges that defendants deviated from the standard of care by failing to timely answer the statement of charges asserted by OPMC in a professional misconduct proceeding, and the evidence that defendants submitted in support of their motion establishes that defendants did not have an attorney-client relationship with plaintiff at the time of the default (see Berry v Utica Natl. Ins. Group, 66 AD3d 1376, 1376 [4th Dept 2009]). Plaintiff’s unilateral belief that he was defendants’ client is insufficient to confer that status upon him (see id.). We further conclude that defendants established that any negligence on their part was not a proximate cause of plaintiff’s alleged damages (see Dabiri v Porter, 227 AD3d 860, 861 [2d Dept 2024]; Casey v Exum, 219 AD3d 456, 457 [2d Dept 2023]). In opposition to the motion, plaintiff failed to raise an issue of fact (see generally Zuckerman, 49 NY2d at 562).”

It is always an uphill fight to sue the other side’s attorneys. There is an exception, for “fraud, malice, collusion and other special circumstances” but getting through that eye of the needle is rarely successful. Here, in Crehan v Richardson 2025 NY Slip Op 01527
Decided on March 14, 2025 Appellate Division, Fourth Department we see an unsuccessful attempt.

“Memorandum: Plaintiffs were employees of the Niagara Frontier Transit Metro System who took leaves of absence from their respective positions to serve as officers of their union, Amalgamated Transit Union Local 1342 (Union). During their service as Union officers, plaintiffs applied for and were granted early retirement and began collecting their pension benefits. Following a determination by the Internal Revenue Service that plaintiffs were not eligible to receive pension benefits while they were still working for the Union, plaintiffs’ monthly pension income was prospectively reduced in order to recoup payments that allegedly had been improperly made in prior years. Plaintiffs thereafter commenced this action, asserting causes of action for declaratory judgment, injunctive relief, breach of contract, and equitable estoppel against defendants Jeffrey B. Richardson, Ron Giza, Karen Novo, and Patrick Dalton, in their capacities as trustees of the Amalgamated Transit Union Local 1342 Niagara Frontier Transit Metro System Pension Fund (Trustees), Amalgamated Transit Union Local 1342 Niagara Frontier Transit Metro System Pension Fund, and Amalgamated Transit Union Local 1342 Niagara Frontier Transit Metro System Pension Plan (collectively, Fund defendants). Plaintiffs also asserted causes of action against the Trustees for breach of fiduciary duty and negligence and [*2]against defendants Jules L. Smith and Mark L. Stulmaker (collectively, attorney defendants) for breach of fiduciary duty and negligence/malpractice. In appeal No. 1, plaintiffs appeal from an order granting the Fund defendants’ motion to dismiss the complaint against them. In appeal No. 2, plaintiffs appeal from an order and judgment granting Smith’s motion to dismiss the complaint against him. In appeal No. 3, plaintiffs appeal from an order granting Stulmaker’s motion to dismiss the complaint against him.

Plaintiffs contend in appeal No. 1 that Supreme Court erred in granting the Fund defendants’ motion. We agree.”

“Contrary to plaintiffs’ contentions in appeal Nos. 2 and 3, the court did not err in granting the motions of the attorney defendants. With respect to plaintiffs’ sixth cause of action, for breach of fiduciary duty, we note that “[t]he elements of a cause of action for a breach of fiduciary duty are ‘the existence of a fiduciary relationship, misconduct by defendant, and damages directly caused by that misconduct’ ” (Kaleida Health v Hyland, 200 AD3d 1654, 1655 [4th Dept 2021]; see Wells v Hurlburt Rd. Co., LLC, 145 AD3d 1486, 1487 [4th Dept 2016]; Matter of Lorie DeHimer Irrevocable Trust, 122 AD3d 1352, 1352-1353 [4th Dept 2014]). A fiduciary relationship is “grounded in a higher level of trust than normally present in the marketplace between those involved in arm’s length business transactions” (Oddo Asset Mgt. v Barclays Bank PLC, 19 NY3d 584, 593 [2012], rearg denied 19 NY3d 1065 [2012] [internal quotation marks omitted]). “[C]ourts should not ordinarily transport [the parties] to [that] higher realm of relationship and fashion a stricter duty for them” where the parties have not themselves created such a relationship (id.). “[E]ssential elements of a fiduciary relation are . . . reliance, . . . de facto control and dominance” (AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 11 NY3d 146, 158 [2008] [internal quotation marks omitted]; see Marmelstein v Kehillat New Hempstead: The Rav Aron Jofen Community Synagogue, 11 NY3d 15, 21 [2008]). Stated differently, “[a] fiduciary relationship exists when confidence is reposed on one side and there is resulting superiority and influence on the other” (AG Capital Funding Partners, L.P., 11 NY3d at 158). Determining whether a fiduciary relationship exists is necessarily a fact-specific inquiry (see Oddo Asset Mgt., 19 NY3d at 593; AG Capital Funding Partners, L.P., 11 NY3d at 158). Here, however, the complaint merely alleged, in conclusory terms, the existence of a fiduciary duty to plaintiffs “as [p]ension [p]lan participants and beneficiaries.” There are no factual allegations supporting a greater duty than that typically owed, and indeed the complaint itself suggests a customary arm’s length and indirect relationship between plan attorneys and plan participants. Plaintiffs do not allege that the attorney defendants had discretionary authority or [*3]control over the management or administration of the plan, and the complaint does not set forth allegations suggesting that a higher level of trust or control had been established between the attorney defendants and plaintiffs (cf. Roni LLC v Arfa, 18 NY3d 846, 848-849 [2011]; EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 20 [2005]). A plaintiff cannot show that a fiduciary relationship existed “by merely stating, in a conclusory fashion, that [a defendant] acted as a fiduciary and that a relationship of trust existed” (Marmelstein, 11 NY3d at 21). Rather, it is incumbent on a plaintiff to “articulate specific facts that will allow a court to distinguish a viable claim of breach of fiduciary duty” from nonactionable conduct (id. at 21-22).

With respect to plaintiffs’ eighth cause of action, for malpractice, “[i]t is well established that, ‘[t]o recover damages for legal malpractice, a plaintiff must prove, inter alia, the existence of an attorney-client relationship’ ” (Spring v County of Monroe, 151 AD3d 1694, 1695 [4th Dept 2017]; see Berry v Utica Natl. Ins. Group, 66 AD3d 1376, 1376 [4th Dept 2009]). Here, plaintiffs’ complaint does not set forth sufficient facts from which the existence of an attorney-client relationship may be demonstrated or inferred. Instead, the complaint itself states that the attorney defendants provided their services “to the [plan] [t]rustees” and to the plan itself but does not assert the existence of an attorney-client relationship between the attorney defendants and plaintiffs. We reject plaintiffs’ contention that an exception to the attorney-client requirement is alleged in the complaint. On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the facts pleaded are presumed to be true and are accorded every favorable inference, but “bare legal conclusions as well as factual claims flatly contradicted by the record are not entitled to any such consideration” (Rhodes v Honigman, 131 AD3d 1151, 1152 [2d Dept 2015]; see Matter of Niagara County v Power Auth. of State of N.Y., 82 AD3d 1597, 1599 [4th Dept 2011], lv dismissed in part & denied in part 17 NY3d 838 [2011]). Here, to the extent that the complaint can be viewed to include allegations of circumstances warranting application of an exception to the attorney-client relationship requirement (see generally Bluntt v O’Connor, 291 AD2d 106, 114 [4th Dept 2002], lv denied 98 NY2d 605 [2002]), those allegations are flatly contradicted by the record.”

Guzman-Martinez v Rosado 2025 NY Slip Op 01483 Decided on March 14, 2025
Appellate Division, Fourth Department makes a bold statement on the question of whether an attorney who is hired after the time to serve notice of an injury pursuant to General Municipal Law 50-e has passed can still be held responsible for failing to move for leave to file a late notice of claim under section 50-e(5). Many have argued in the past that success on a motion seeking leave is “speculative.” This AD decision says that it is a question for the trier of fact.

“Memorandum: In this legal malpractice action, plaintiff seeks damages for the alleged negligence of defendant with respect to his representation of plaintiff in connection with a personal injury action stemming from an incident where she fell inside a Niagara Frontier Transit Authority bus. Plaintiff alleges, inter alia, that defendant negligently informed her about the duration of the statute of limitations applicable to her personal injury claim and that he, concomitantly, failed to diligently and skillfully prosecute and protect her rights arising out of the accident. Defendant moved, inter alia, to dismiss the complaint for, in effect, failure to state a cause of action (see CPLR 3211 [a] [7]), and plaintiff cross-moved to enforce the parties’ purported stipulation in open court settling the action (see CPLR 2104). Defendant appeals from an order that, inter alia, denied the motion, granted the cross-motion, and awarded plaintiff costs.”

“Defendant also contends that the court erred in denying the motion insofar as it sought to dismiss the complaint for failure to state a cause of action. We reject that contention with respect to the first cause of action, for legal malpractice. It is well settled that “[t]o establish a cause of action for legal malpractice, a plaintiff must prove (1) that the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, (2) proximate cause, (3) damages, and (4) that the plaintiff would have been successful in the underlying action had the attorney exercised due care” (Harvey v Handelman, Witkowicz & Levitsky, LLP, 130 AD3d 1439, 1441 [4th Dept 2015] [internal quotation marks omitted]; see Leder v Spiegel, 9 NY3d 836, 837 [2007], cert denied 552 US 1257 [2008]; Santaro v Finocchio [appeal No. 2], 221 AD3d 1489, 1490 [4th Dept 2023]). On a motion pursuant to CPLR 3211 (a) (7), a cause of action for legal malpractice is properly dismissed where the conduct alleged in the complaint, “even if accepted as true[,] does not establish negligence” (Leder, 9 NY3d at 837; see generally Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 847 [2d Dept 2012], lv denied 20 NY3d 857 [2013]).

Here, we conclude that, giving the complaint “a liberal construction, accept[ing] the allegations as true and accord[ing] . . . plaintiff every possible favorable inference” (Chanko v American Broadcasting Cos. Inc., 27 NY3d 46, 52 [2016]), plaintiff stated a cause of action for legal malpractice by alleging that defendant made erroneous statements about the applicable statute of limitations with respect to her personal injury case, which resulted in her failing to timely commence that action. We reject defendant’s argument that he could not be negligent, as a matter of law, because when plaintiff retained him as her attorney, the time to file the requisite notice of claim had expired (see Public Authorities Law § 1299-p; see also General Municipal Law § 50-e). Indeed, we reject defendant’s assertion that any failure on his part to file a motion for leave to file a late notice of claim was not negligent, as a matter of law, on the basis that there was no guarantee of success on such a motion. To the contrary, we conclude that at the time he was retained by plaintiff, defendant “had an opportunity to protect plaintiff’s rights by seeking discretionary leave, pursuant to General Municipal Law § 50-e (5), to serve a late notice of claim” (Liporace v Neimark & Neimark, LLP, 162 AD3d 570, 570 [1st Dept 2018]; see Phillips v Moran & Kufta, P.C., 53 AD3d 1044, 1045 [4th Dept 2008]). Whether defendant “would have prevailed on such motion will have to be determined by the trier of fact” (Liporace, 162 AD3d at 570), and should not be resolved on this motion to dismiss where plaintiff has alleged that defendant was negligent in failing to “diligently and skillfully . . . protect[ ] the rights of plaintiff[ ] arising out of the accident.” We therefore conclude that the allegations in the complaint sufficiently state a cause of action for legal malpractice based on defendant’s alleged errors with respect to the statute of limitations.”

Law firms want insurance coverage. They cannot operate in real estate and other high asset litigation without insurance coverage. Whether through inadvertence, or because telling the carrier of earlier inchoate claims against the law firm will drive up the cost of coverage, it is a fatal error not to list all claims against the law firm in obtaining new or recurring coverage.

Allied World Assur. Co. (U.S.) Inc. v Golenbock Eiseman Assor Bell & Peskoe, LLP, 2025 NY Slip Op 01421 Decided on March 13, 2025 Appellate Division, First Department is a situation where coverage was denied.

“Defendant law firm represented nonparty Workspace, Inc. regarding certain real estate sales from 2015-2017. One of the properties, a unit in 106 Spring Street in Manhattan, sold in 2015, and by virtue of the sale the purchaser became a shareholder in Workspace. In November 2017, the purchaser sued Workspace in the action captioned 106 Spring Street LLC v. Workspace, Inc., index No. 657050/2017 [Sup Ct, New York County] (the 106 Spring Street Action), alleging that Workspace, by concealing certain documents and facts both during the 106 Spring Street sale and thereafter, acted to deprive the purchaser of significant monetary benefits in the pending sale of another of Workspace’s properties at 93 Mercer Street in Manhattan. The 93 Mercer Street transaction never closed due to, among other things, the pendency of the 106 Spring Street Action, resulting in an alleged loss to Workspace’s shareholders of more than $18 million.

In 2018, Workspace and defendant entered into a tolling agreement, which set forth that Workspace “believes that it may hold claims against [defendant] . . . and wishes to preserve the Claims — if any — until the final adjudication of the [106 Spring Street Action].” The tolling agreement also provided that defendant “believes that it may hold claims against Workspace for unpaid legal fees,” and that “[t]he parties desire to avoid litigation at this time.” Finally, the parties entered into the agreement “to toll the statute of limitation on their claims against one another at this time.”

Years later, plaintiff insurer issued a claims-made policy to defendant for the period of August 1, 2021 to August 1, 2022. The policy expressly defined a “claim” to include “a request to toll or waive a statute of limitations made to or against any Insured seeking to hold such insured responsible for any Wrongful Act.” The policy defines a Legal Services Wrongful Act as “any actual or alleged act, error or omission committed by any Insured, solely in the performance of or failure to perform Legal Services.” Finally, the “No Prior Knowledge” condition precedent to coverage required that “prior to August 1, 2019, no Insured had any basis (1) to believe that any Insured had breached a professional duty; or (2) to foresee that any fact, circumstance, situation, transaction, event, or Wrongful Act [*2]might reasonably be expected to be the basis of a Claim against any Insured.” Defendant did not disclose the tolling agreement or the related 106 Spring Street Action to plaintiff prior to the policy’s issuance.

On August 3, 2021, Workspace initiated an action against defendant for legal malpractice allegedly committed from 2015 through 2017 in connection with the 106 Spring Street sale and the ultimately aborted 93 Mercer Sale (the Workspace Action).[FN1] On August 9, 2021, defendant requested coverage in the Workspace Action from plaintiff, and on August 27, 2021, plaintiff agreed to provide a defense while reserving its rights. During its investigation of the Workspace Action, plaintiff subsequently learned that defendant had entered, and failed to disclose, the tolling agreement in August 2018. On August 16, 2022, plaintiff insurer denied coverage to defendant on the grounds that the claim pre-dated the policy, and that the policy’s no prior knowledge condition was not satisfied.

Supreme Court granted plaintiff’s motion for summary judgment on its first two causes of action, declaring that there is no coverage for defendant under the policy because (i) the claim predates the policy, and (ii) the policy’s prior knowledge condition was not satisfied. We affirm based on Supreme Court’s reasoning.

While the Workspace Action was commenced during the policy’s coverage term, the legal malpractice claims set forth in the action predate the policy’s effective period. It is undisputed that defendant and Workspace, its former client, entered into the tolling agreement prior to the policy period, and defendant’s argument that the tolling agreement is ambiguous or otherwise insufficient to constitute a “claim” is unavailing. The policy specifies that a tolling agreement seeking to hold defendant responsible for “any Wrongful Act” (including acts constituting legal malpractice) establishes a claim.”

“The tolling agreement establishes that defendant had both subjective and objective knowledge of a potential legal malpractice claim sufficient to trigger an obligation to disclose such fact to plaintiff under the policy. The tolling agreement expressly states that Workspace believed it may hold claims against defendant, and that such claims were preserved pending the outcome of the 106 Spring Street Action. Lastly, defendant’s own reserved claims for unpaid legal fees provide further support for such conclusion. Accordingly, by virtue of the tolling agreement and the parties’ exclusive attorney-client relationship, defendant knew or should have known that Workspace sought to preserve its potential claims regarding defendant’s legal representation during the transactions underlying the 106 Spring Street Action.”

Musial v Donohue 2025 NY Slip Op 01485 Decided on March 14, 2025 Appellate Division, Fourth Department discusses whether a viable legal malpractice case can be brought after Plaintiff settles the underlying action, rather that, say, losing it altogether. The rule is that a subsequent legal malpractice case case is viable if the settlement was effectively compelled by mistakes of counsel. In other successful cases, a preclusion order, or the loss of admissible evidence can be that mistake. Here, plaintiff was not able to meet the standard.

“Memorandum: Plaintiffs commenced this breach of contract and legal malpractice action against Texas attorney Russell Button, Esq., and his law firm, the Button Law Firm, PLLC (collectively, Button defendants), and New York attorneys David C. Donohue, Esq., Barry J. Donohue, Esq., and John F. Donohue, Esq., and their law firm, Donohue Law Offices (collectively, Donohue defendants), alleging that defendants failed to provide them with adequate legal representation with respect to claims arising from a motor vehicle accident that occurred in Texas. On a prior appeal, we affirmed an order granting the motion of the Button defendants to dismiss the complaint against them for lack of personal jurisdiction (Musial v Donohue, 225 AD3d 1164, 1164 [4th Dept 2024]). Following discovery, the Donohue defendants moved for summary judgment dismissing the complaint against them on the ground that, inter alia, the settlement of plaintiffs’ motor vehicle accident claims was not compelled by any mistake of counsel. Supreme Court granted the motion, and we now affirm.

Generally, to recover damages for legal malpractice, a client must prove: “(1) that the [law firm] failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, (2) proximate cause, (3) damages, and (4) that the [client] would have been successful in the underlying action had the [law firm] exercised due care” (Chamberlain, D’Amanda, Oppenheimer & Greenfield, LLP v Wilson, 136 AD3d 1326, 1327 [4th Dept 2016], lv dismissed 28 NY3d 942 [2016] [internal quotation marks omitted]; see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 757 [2d Dept 2014]). Settlement of the underlying claim “does not, per se, preclude a legal malpractice action” (Chamberlain, D’Amanda, Oppenheimer & Greenfield, LLP, 136 AD3d at 1328; see Schiff v Sallah Law Firm, P.C., 128 AD3d 668, 669 [2d Dept 2015]), but requires that the plaintiff further establish that the “settlement . . . was effectively compelled by the mistakes of counsel” (Chamberlain, D’Amanda, Oppenheimer & Greenfield, LLP, 136 AD3d at 1328 [internal quotation marks omitted]; see Schiller, 116 AD3d at 757). “[M]ere speculation about a loss resulting from an attorney’s [alleged] poor performance is insufficient” to establish that a settlement was compelled due to the mistake of counsel, and “[c]onclusory allegations that merely reflect a subsequent dissatisfaction with the settlement, or that the client would be in a better position but for the [*2]settlement, without more, do not make out a claim of legal malpractice” (Chamberlain, D’Amanda, Oppenheimer & Greenfield, LLP, 136 AD3d at 1328 [internal quotation marks omitted]; see Boone v Bender, 74 AD3d 1111, 1113 [2d Dept 2010], lv denied 16 NY3d 710 [2011]; Antokol & Coffin v Myers, 30 AD3d 843, 845 [3d Dept 2006]). “[T]he fact that the plaintiff[s] subsequently w[ere] unhappy with the settlement . . . does not rise to the level of legal malpractice” (Givens v De Moya, 193 AD3d 691, 692 [2d Dept 2021] [internal quotation marks omitted]).

Here, we conclude that the Donohue defendants met their initial burden on their motion by establishing that they did not fail to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the settlement of plaintiffs’ underlying motor vehicle accident claims was not effectively compelled by any mistake on their part (see Chamberlain, D’Amanda, Oppenheimer & Greenfield, LLP, 136 AD3d at 1328; Schiff, 128 AD3d at 669). The Donohue defendants submitted, inter alia, the deposition testimony of each plaintiff, which established that plaintiffs were aware that the settlement would resolve all of their claims, that they had read and understood the terms of the settlement before signing it, and that they chose to settle their claims because they did not want to go to Texas for trial and desired to put the case behind them and move on with their lives.

Plaintiffs, in opposition, failed to raise a triable issue of fact (see Chamberlain, D’Amanda, Oppenheimer & Greenfield, LLP, 136 AD3d at 1328-1329; Schiff, 128 AD3d at 669). The affidavit of plaintiffs’ expert, in which that expert averred that plaintiffs were “coerced . . . into settling” and that a more favorable settlement “could have [been] produced,” does not “contain sufficient allegations to demonstrate that the conclusions it contains are more than mere speculation and would, if offered alone at trial, support a verdict in

[plaintiffs’] favor” (Bush v Independent Food Equip., Inc., 158 AD3d 1129, 1130 [4th Dept 2018]”