Attorneys and cases move from law firm to law firm.  How does that affect the statute of limitations for legal malpractice when attorney takes on case, moves to law firm 2 and then leaves the case behind there?  Cordero v Koval Retjig & Dean PLLC  2017 NY Slip Op 05036 [151 AD3d 587]
June 20, 2017 Appellate Division, First Department  partially answers the question.

“The claim for malpractice accrued when defendants failed to timely file a notice of claim (see General Municipal Law § 50-e) upon the City of New York and the New York City Department of Transportation after plaintiff was allegedly injured in a fall from his motorcycle because he struck a defectively-placed construction plate in the road (see generally Glamm v Allen, 57 NY2d 87, 93 [1982]). However, the evidence raised triable issues whether the malpractice statute of limitations (CPLR 214 [6]) was tolled under the continuous representation doctrine. Mark Koval, an attorney formerly employed by defendant law firm, joined another law firm at or about the time plaintiff’s personal injury case was transferred to such new law firm. Defendants admit that plaintiff’s case was transferred to the new firm, and Koval does not deny having worked on the case at either the old or new firm (see generally Antoniu v Ahearn, 134 AD2d 151 [1st Dept 1987]; HNH Intl., Ltd. v Pryor Cashman Sherman & Flynn LLP, 63 AD3d 534, 535 [1st Dept 2009]). Although Koval claims he subsequently left the new firm and did not take plaintiff’s case with him, there is no evidence that plaintiff was ever informed of, or had [*2]objective notice of, Koval’s departure such as to end the continuous representation circumstance and the tolling of the statute of limitations (see Shumsky v Eisenstein, 96 NY2d 164, 167-169, 170 [2001]).”

Amendments should be freely given, yet in Daniel R. Wotman & Assoc., PLLC v Chang
2017 NY Slip Op 02141 [148 AD3d 571]  March 23, 2017  Appellate Division, First Department the court below correctly decided not to exercise its discretion when the proposed amendment comes far into the case.

“In this action commenced by plaintiff to recover legal fees, defendant asserted a counterclaim for legal malpractice. Plaintiff moved for summary judgment dismissing that counter-claim and in response, defendant cross-moved for leave to amend the counterclaim to expand and alter her theory of recovery.

Supreme Court providently exercised its discretion in denying defendant leave to amend her legal malpractice counterclaim. The motion for leave to amend came years after the counterclaim was first asserted and well after the conclusion of discovery. Moreover, defendant failed to articulate a reasonable excuse for her delay in amending the counterclaim and was unquestionably in possession of all the facts she needed to seek leave at an earlier time in the litigation (see Holliday v Hudson Armored Car & Courier Serv., 301 AD2d 392 [1st Dept 2003], lv dismissed, lv denied 100 NY2d 636 [2003]).”

Judiciary Law 487 is tantalizingly raised, but not resolved in Solomon v Silverstein 
2017 NY Slip Op 51400(U)   Decided on October 11, 2017  Supreme Court, Richmond County
Minardo, J., the story of two sisters feuding over the care and assistance of their mother.  Mom deposited $ 40,000 and the question is whether the two daughters share or one takes all.

They litigated in Surrogate’s Court and now are litigating in Supreme Court.  If they are paying attorneys by the hour, surely the fees have overtaken the $ 40,000.  Here, defendant counterclaimed for JL § 487 because plaintiff’s attorney verified the complaint.  Supreme Court noted and ignored the motion to dismiss this counterclaim.

“Turning to the cross motion which is presently before the Court, plaintiff seeks an order [*5](1) pursuant to CPLR §§ 3124 and 3126, striking the counterclaim of defendant, [FN2] (2) striking defendant’s affirmative defenses for failure to adequately respond to plaintiff’s demand for bill of particulars and notice for discovery and inspection, (3) precluding defendant from offering evidence at trial in defense of this action for failing to timely and adequately respond to the above demands, (4) for sanctions against defendant for her frivolous, libelous and baseless counterclaim, and (5) enlarging plaintiff’s time to e-file her affidavit of service in this action.

Without addressing the merits of defendant’s purported counterclaim, this Court will not impose the penalties sought pursuant CPLR § 3126 (2) and (3) absent a showing by plaintiff that defendant wilfully failed to disclose information or refused to obey an order for disclosure. As such, the branch of the cross motion which seeks this relief and sanctions must be denied without prejudice. The branch of the cross motion which is to compel disclosure pursuant to CPLR § 3124 is granted solely to the extent that this matter shall be set down for a compliance conference on ______”

“Footnote 2:Defendant’s counterclaim to recover damages in the amount of $100,000.00 is predicated upon her attorney’s alleged violation of the Judiciary Law § 487 and the doctrine of respondeat superior. Defendant asserts that the verification of the complaint by plaintiff’s attorney is patently false and made with the intent to deceive the court, which constitutes “wrongful and morally culpable conduct” for which plaintiff is responsible.”

The jury system, along with the CPLR structure of motions and appeals can be cumbersome, long, but ultimately comforting.  In contrast, the arbitration system plays to a single individual or tribunal, with no margin for reassessment.  So went a case reported in the New York Law Journal, and sometime in the future will be determined by a court decision, albeit on very limited grounds.

Investment Fund Challenges Ruling in Herrick Malpractice Fight is the story of a legal malpractice by an investment company against Herrick Feinstein in a legal malpractice case, involving a former  NY Court of Appeals judges as an expert witness.

From Christine Simmons :“Gordon Group said it retained Herrick Feinstein in late 2009 after it was defrauded by a rogue bond trader who made unauthorized purchases of stock “in an elaborate pump and dump scheme.” Gordon Group said Herrick promptly filed in state court tort and other claims against the trader and others, but waited 13 months before considering the timeliness of the client’s contract claim against Fortis Investment Services, a clearing broker that was acquired by BNP Paribas. The claim against Fortis was subject to arbitration before the Financial Industry Regulatory Authority.

Herrick did not seek a tolling agreement with Fortis or tell Gordon Group that Herrick’s delay was destroying the value of its Fortis claim, Gordon Group claims. Gordon Group said it was advised by then-Herrick attorneys David Feuerstein and John Goldman.

Herrick, it claims, finally brought a FINRA arbitration against Fortis in March 2011, and argued then that its damages were $23.4 million plus interest, totaling $45 million. A FINRA panel in November 2015 awarded Gordon Group $11.3 million in compensatory damage but did not explicitly grant or deny interest.

In a legal malpractice arbitration brought against Herrick last year, Gordon Group argued the FINRA award was only based on the unauthorized trades that cleared Fortis inside the statute of limitations timeframe and a 9 percent statutory interest. Gordon Group’s expert witness at the malpractice arbitration, Robert Smith, a former judge of the New York Court of Appeals, testified that it was “very likely” that the FINRA panel credited the statute of limitations defense asserted in the FINRA arbitration as a result of Herrick’s inaction, Gordon Group said.

In a July decision, the arbitrator, Davidson, found Herrick’s “failure to assure” that the statute of limitations on the Fortis claim was tolled or that the client was fully informed of the danger in waiting to bring a claim “fell below the ordinary and reasonable skill and knowledge” commonly possessed by a member of the profession. However, in considering damages, Davidson found “the truth of the matter is that no one knows how the arbitrators [in the FINRA action] came up with their number.”

Gordon Group’s petition, filed Tuesday, argues that the arbitrator applied the wrong standard of proof and the ruling resulted in an unfair arbitration process. Its petition seeks to vacate the award and send the parties back to arbitration to establish damages.”

O’Neal v Muchnick Golieb & Golieb, P.C.  2017 NY Slip Op 03125 [149 AD3d 636]  April 25, 2017  Appellate Division, First Department is notable for several terse lessons.  They were set forth in bullet fashion in the opinion:

“The allegation that, while representing plaintiff in the assignment-of-lease negotiations, counsel secretly represented the counterparty so as to obtain favorable terms for the counterparty, which resulted in a lower-than-market price for the assignment, states a claim for legal malpractice (see Leggiadro, Ltd. v Winston & Strawn, LLP, 119 AD3d 442 [1st Dept 2014]).

Defendants’ decision not to oppose summary judgment in the action by the bank creditor does not constitute malpractice. The decision was a strategic choice made in light of the lack of a meritorious defense (see Dweck Law Firm v Mann, 283 AD2d 292 [1st Dept 2001]). Moreover, the fact that replacement counsel was able to re-open the briefing and submit opposition to the motion and still lost demonstrates the lack of a causal connection between defendants’ decision not to oppose and any alleged damages.

The breach of fiduciary duty claim is not duplicative of the malpractice claims, since it is based on actions taken after the termination of the representation (see Dinhofer v Medical Liab. Mut. Ins. Co., 92 AD3d 480 [1st Dept 2012], lv denied 19 NY3d 812 [2012]).

The allegation that defendants advised plaintiff to transfer her assets, in violation of a court order about which they had not informed her, to draw the ire of creditors so that they would seek collection against her before pursuing her co-defendants is sufficient to state a claim under Judiciary Law § 487 (see generally Kurman v Schnapp, 73 AD3d 435 [1st Dept 2010]).”

Legal malpractice cases traditionally hew to the Legal Malpractice – Breach of Contract – Breach of Fiduciary axis.  Outlier cases add in some exotic causes of action. Gleyzerman v Law Offs. of Arthur Gershfeld & Assoc., PLLC 2017 NY Slip Op 07200  Decided on October 12, 2017  Appellate Division, First Department is a overbilling case, with multiple causes of action.  GBL § 349 and Judiciary Law § 487 as well as conversion and fraudulent inducement all fail.  Nevertheless, poor quality billing records are insufficient for dismissal.

“Defendants failed to demonstrate conclusively that the value of the services they rendered in connection with the first and third retainers equals or exceeds the fees that plaintiffs paid. Their self-serving accounting, which identified the number of hours spent on tasks but not the dates on which the work was done and the time spent on each of those dates, does not constitute irrefutable, documentary evidence that no unearned fees remain. However, defendants demonstrated that no unearned fees remain under the second retainer, which provided that the flat fee would cover “only the superseding arraignment appearance” (caps and boldface deleted); Gershfeld appeared with Anna on that arraignment.

The conversion cause of action alleges no facts independent of those underlying the breach of contract cause of action and was therefore correctly dismissed as duplicative (see Jeffers v American Univ. of Antigua, 125 AD3d 440, 443 [1st Dept 2015]). The unjust enrichment cause of action is precluded by the existence of the retainer agreements (see Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 388 [1987]).

Anna’s cause of action for fraudulent inducement fails to allege the requisite “knowing misrepresentation of material present fact” intended to deceive her and induce her to enter into the first retainer (GoSmile, Inc. v Levine, 81 AD3d 77, 81 [1st Dept 2010], lv denied 17 NY3d 782 [2011]). Defendants’ alleged assurance that her case would not go to trial is at odds with the clear language of the first retainer and, at most, represents a promise about the future (see Eastman Kodak Co. v Roopak Enters., 202 AD2d 220, 222 [1st Dept 1994]) — which in any event [*2]was kept. As the superseding indictment had yet to be filed when the first retainer was entered into, no material fact then existed as to that indictment.

Tatyana’s cause of action for fraudulent inducement alleges that defendants made several misrepresentations of present fact intended to induce her into entering into the second and third retainers, but fails to allege with particularity the distinct damages resulting from that inducement (see Deerfield Communications Corp. v Chesebrough-Ponds, Inc., 68 NY2d 954 [1986]; CPLR 3016[b]).

The causes of action alleging violations of General Business Law § 349(a) were correctly dismissed because the alleged misconduct is related to private agreements between the parties and is not consumer-oriented (see Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 25 [1995]).

The allegations in the complaint fail to establish the existence of a chronic and/or extreme pattern of legal delinquency that caused damages in support of the cause of action under Judiciary Law § 487 (see Chowaiki & Co. Fine Art Ltd. v Lacher, 115 AD3d 600, 601 [1st Dept 2014]).”

The expert comes into trial and is subject to cross-examination.  When that cross-examination hits home, and the court precludes some of the expert testimony, or fails to qualify the expert, or the expert has to admit that it did not examine or consider some piece of evidence, then things will not go well for the proponent.  What does the proponent then do?

Toaspern v Laduca Law Firm LLP  2017 NY Slip Op 07374  Decided on October 19, 2017
Appellate Division, Third Department is the example of what happens when the expert sues for an unpaid fee.  There are qualified privileges and limits in cases against experts.

“Defendants — an attorney and his law firm — represented a married couple in an action against the Harley-Davidson Motor Company Group in relation to an accident that occurred when the couple’s motorcycle lost power (see Smalley v Harley-Davidson Motor Co. Group LLC, 134 AD3d 1490 [2015]; Smalley v Harley-Davidson Motor Co., Inc., 115 AD3d 1369 [2014]). In connection with that action, defendants retained plaintiff, an accident reconstructionist, to provide expert services and testimony. Plaintiff intermittently consulted with defendants between 2006 and 2013. During the trial of that action, plaintiff testified that he had examined a motorcycle similar to the one at issue but had not disclosed this inspection as a basis for his expert opinion. That testimony prompted Supreme Court to grant Harley-Davidson’s motion for a mistrial.

Following the mistrial, defendants refused to pay the remainder of plaintiff’s bill, prompting him to commence this action to recover the fees for his expert services. Defendants served an answer containing two counterclaims. The first counterclaim alleged that plaintiff “failed to both review and understand [the] records provided to him,” which resulted in plaintiff being “unable to answer critical questions posed to him regarding the electrical testing conducted [*2]by Harley[-]Davidson,” which in turn resulted in Supreme Court deeming a portion of the trial evidence inadmissible. The second counterclaim alleged that plaintiff referred to precluded evidence during his testimony, despite warnings from the court that he could not do so. The second counterclaim further alleged that plaintiff testified that a few weeks before trial he viewed a motorcycle similar to the one at issue, but he did not include in his expert disclosure that examination of a motorcycle formed part of the basis for his opinion testimony. Plaintiff moved to dismiss defendants’ counterclaims, arguing, among other things, that the doctrine of absolute witness immunity shielded him from liability for damages arising from his trial testimony. Defendants cross-moved for partial summary judgment.”

“A “witness at a judicial or quasi-judicial proceeding enjoys an absolute privilege with respect to his or her testimony,” as long as the statements made are material to the issues to be resolved therein (Pfeiffer v Hoffman, 251 AD2d 94, 95 [1998]; accord Martinson v Blau, 292 AD2d 234, 235 [2002]; see Youmans v Smith, 153 NY 214, 219 [1897]; Wilson v Erra, 94 AD3d 756, 756-757 [2012]). The purposes of this privilege are to further the truth-seeking process at trial and encourage cooperation of witnesses, particularly with regard to expert witnesses, so that they can discharge their public duty freely “with knowledge that they will be insulated from the harassment and financial hazard of subsequent litigation” (Tolisano v Texon, 144 AD2d 267, 271 [1988, Smith, J., dissenting], revd for reasons stated in dissent 75 NY2d 732 [1989]; see Rehberg v Paulk, 566 US 356, 367 [2012]).

Defendants argue that the witness privilege does not bar actions against a party’s own expert for breach of contract or malpractice, just as a party can proceed against his or her attorney for legal malpractice based upon conduct that occurred during a trial. Plaintiff argues that an expert witness is absolutely immune from liability for claims that arise out of his or her testimony provided in prior litigation.

We conclude that a party cannot hold its own expert liable for the content of his or her testimony in prior litigation, but may pursue claims for negligence, professional malpractice, breach of contract or similar causes of action due to the expert’s alleged failure to properly prepare for the trial or to perform agreed-upon litigation-related services. Although an expert may not be held liable for the substance of his or her prior testimony or the opinions expressed therein, such testimony may be used as evidence in connection with these other types of causes of action. As the Court of Appeals recently stated when addressing the witness privilege in another context, “[t]he test is ‘whether the plaintiff can make out the elements of his [or her] . . . claim without resorting to the . . . testimony. If the claim exists independently of the . . . testimony, it is not “based on” that testimony . . . [but] if the claim requires the . . . testimony, the defendant enjoys absolute immunity'” (De Lourdes Torres v Jones, 26 NY3d 742, 770 [2016], quoting Coggins v Buonora, 776 F3d 108, 113 [2d Cir 2015], cert denied 575 US ___, 135 S Ct 2335 [2015]; cf. Rehberg v Paulk, 566 US at 370 n 1). Stated otherwise, a plaintiff may not assert a claim that is entirely based on the expert’s prior testimony — and nothing more — but may assert a claim that is viable apart from, but supported by, that testimony (see De Lourdes Torres v Jones, 26 NY3d at 770 [precluding the subjection of a witness to potential liability for prior testimony [*3]”alone”]).”

Either Volvo owned the car and leased it to the auto accident defendant or it did not.  Simple issue, no?  How did this simple issue morph into an auto accident trial where Jacoby & Meyers represented plaintiff and the proofs were not in place before the jury.  More puzzling, how did this proof elude the legal malpractice case thereafter?

Verdi v Jacoby & Meyers, LLP  2017 NY Slip Op 07294  Decided on October 18, 2017  Appellate Division, Second Department seems to be more about missed opportunities than anything else.

“In this legal malpractice action, the plaintiff alleges that Volvo Financial North America (hereinafter Volvo) was the lessor of a vehicle that struck the plaintiff’s vehicle in the rear in April 2005. The accident occurred prior to the enactment of the Graves Amendment (49 USC § 30106), which exempts the owner of a leased or rented motor vehicle from liability for personal injuries resulting from the use of such vehicle ” if the owner (i) is engaged in the trade or business of renting or leasing motor vehicles and (ii) engaged in no negligence or criminal wrongdoing'” (Anglero v Hanif, 140 AD3d 905, 906, quoting Bravo v Vargas, 113 AD3d 579, 580). The plaintiff further alleges that the defendants deviated from good and accepted legal practice in neglecting to name Volvo as a defendant in a personal injury action they commenced on behalf of the plaintiff.

The legal malpractice action proceeded to a bifurcated trial. Following the close of the plaintiff’s proof on the issue of liability, the defendants moved pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint. The defendants argued, inter alia, that the plaintiff failed to establish that the offending vehicle was owned by or leased from Volvo. The Supreme Court granted the defendants’ motion on the record during proceedings held on December 11, 2013. More than a month later, the plaintiff moved for leave to enlarge his time to make a posttrial motion. While that motion was pending, the plaintiff made a posttrial motion, among other things, for judgment in his favor as a matter of law on the issue of liability. The court denied the motion to enlarge the time to make a posttrial motion, and denied the posttrial motion, in effect, as untimely. By judgment entered January 8, 2015, the court dismissed the complaint. The plaintiff [*2]appeals, and we affirm.

The Supreme Court properly granted the defendants’ motion for a directed verdict pursuant to CPLR 4401. ” A trial court’s grant of a CPLR 4401 motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party'” (Geeta Temple-Ashram v Satyanandji, 142 AD3d 1132, 1134, quoting Szczerbiak v Pilat, 90 NY2d 553, 556; accord Clarke v Phillips, 112 AD3d 872, 874). To establish a cause of action to recover damages for legal malpractice, a plaintiff must establish the elements of proximate cause and damages, i.e. “a plaintiff must show that but for the attorney’s negligence, he or she would have prevailed on the underlying claim” (Rau v Borenkoff, 262 AD2d 388, 389; see Di Giacomo v Michael S. Langella, P.C., 119 AD3d 636, 638), by proving “a case within a case” (McKenna v Forsyth & Forsyth, 280 AD2d 79, 82 [internal quotation marks omitted]). To prevail on a cause of action asserted pursuant to Vehicle and Traffic Law § 388, a plaintiff is required to demonstrate, among other things, that the defendant he sought to hold vicariously liable was the owner of the vehicle at the time he sustained his injury (see Vehicle and Traffic Law § 388[a]). In this action, the plaintiff failed to adduce prima facie evidence that the offending vehicle was owned by or leased from Volvo on the date of the accident (see Vehicle and Traffic Law §§ 128, 388; Godlewska v Niznikiewicz, 8 AD3d 430, 431). Given that there is no evidence that the offending vehicle was owned by a commercial lessor that could have been held vicariously liable for the plaintiff’s injuries under Vehicle and Traffic Law § 388 prior to the enactment of the Graves Amendment, the plaintiff failed to establish that he would have prevailed in an action against Volvo had one been commenced.

Moreover, despite the plaintiff’s assertions in opposition to the defendants’ CPLR 4401 motion, the record does not demonstrate that the defendants conceded that the offending vehicle was owned by or leased from Volvo. In this regard, the defendants did not admit in their answer that the vehicle was leased or that Volvo was the lessor or owner of the vehicle (see CPLR 3018[a]).

Consequently, the plaintiff failed to present a prima facie case of legal malpractice (see Dawson v Schoenberg, 129 AD3d 656), and the defendants’ motion pursuant to CPLR 4401 for judgment as a matter of law dismissing the complaint was properly granted (see Szczerbiak v Pilat, 90 NY2d 553).”

 

Centre Lane Partners, LLC v Skadden, Arps, Slate, Meagher, & Flom LLP  2017 NY Slip Op 07221  Decided on October 17, 2017  Appellate Division, First Department illustrates two rules.  One of the rules is the borrowing statute, and the second is one that is both out-of-state and foreign to NY jurisprudence.

The borrowing statute, in appropriate circumstances, applies the statute of limitations of a foreign state to a NY case.  Here is is applied to the detriment of Plaintiff.

In NY a legal malpractice action is deemed to commence at the time of the mistake, not at the time of its discovery.  Oregon has a different statute, but in this case, it was deemed not to apply in plaintiff’s favor.

“Where the alleged injury is economic in nature, the cause of action is generally deemed to accrue in the state “where the plaintiff resides and sustains the economic impact of the loss” (Global Fin. Corp. v Triarc Corp., 93 NY2d 525, 529 [1999]; see Kat House Prods., LLC v Paul, Hastings, Janofsky & Walker, LLP, 71 AD3d 580 [1st Dept 2010]). Here, the debtors’ principal places of business are in Oregon, and their financial losses were allegedly incurred in that state. Contrary to plaintiffs’ claim, the motion court’s application of Oregon’s two-year statute of limitations via New York’s borrowing statute (CPLR 202) in light of, inter alia, the situs of debtors’ Oregon-based businesses, the legal relationships existing between plaintiffs, debtors and defendants, and the nature of the instant action, was proper and the result would not be “absurd,” notwithstanding defendants’ place of business being located in New York (Insurance Co. of N. Am. v ABB Power Generation, 91 NY2d 180, 186 [1997]; see 2138747 Ontario, Inc. v Samsung C & T Corp., 144 AD3d 122 [1st Dept 2016]).”

“Given such factual pleadings, the motion court properly rejected plaintiffs’ argument that [*2]Oregon’s discovery/tolling rule for legal malpractice claims rendered this malpractice action timely commenced. The court properly concluded that a reasonable person, knowing the facts that the debtors had available to them at the time of the two challenged transfers, should have been aware of a substantial possibility of defendants’ conflicted representation, as well as the harm that such negligent representation had caused, and such knowledge could not have been gained later than when the debtors filed for Chapter 7 bankruptcy on December 31, 2013 (see Kaseberg v Davis Wright Tremaine, LLP, 351 Ore 270, 277-278, 265 P3d 777, 781-782 [2011]).”

Deceased clients, deceased attorneys, and a disputed real estate transaction lead to Gourary v Green  2017 NY Slip Op 32158(U)  October 13, 2017  Supreme Court, New York County  Docket Number: 651932/10  Judge: Saliann Scarpulla.  At this point in the case, the attorneys have obtained dismissal of the legal malpractice claim, which has been affirmed by the AD1.  How might this affect the claims between two former partners in a real estate transaction?

“Gourary’s breach of fiduciary cause of action is based on Laster’s alleged failure to disclose information about the value of the property, the Corporation, and other details about the transaction underlying this dispute. Regardless of Laster’s duty as a fiduciary to disclose information that could bear on Gourary’ s consideration of the transaction, the breach of fiduciary duty claim fails because the complaint alleges that each of the nondisclosed facts was known to Green. See Complaint iii! 114, 115, 143-146. “The general rule is that knowledge acquired by an agent acting within the scope of his agency is imputed to his principal and the latter is bound by such knowledge although the information is never actually ~communicated to [him].” Seward Park Haus. Corp. v Cohen, 287 A.D.2d 157, 167 (1st Dep’t 2001). Unless Green had an adverse interest or acquired his knowledge in a confidential setting, Gourary cannot avoid imputation. See Farr v. Newman, 14 N.Y.2d 186, 188 (1964); see also Skiff-Murray v Murray, 17 A.D.3d 807, 810 (3d Dep’t 2005) (finding that attorney’s knowledge could be imputed to a client, “regardless of when or how it was obtained unless it was acquired confidentially”). Here, the law of the case is determinative. The First Department has already found that: “[t]he Green defendants established prima facie … that the sale was consistent with Gourary’s objectives”; “[t]here [was] no evidence that Green represented Macomber and Gourary dually in connection with the negotiations for the sale of Gourary’s share of the corporation”; and “Green’s structuring of the transaction favored Gourary’s interests· over those of Macomber.” Gourary, 143 A.D.3d at 580, 581. As the First Department’s decision makes clear, Green did not totally abandon Gourary’s interest and Gourary cannot avoid imputation by claiming the adverse interest exception. See Center v·Hampton Affiliates, 66 N.Y.2d 782, 785 (1985) (stating that adverse interest exception requires a total abandonment of the principal’s interests and “cannot be invoked merely because [the agent] ha[d] a conflict of interest or because he [was] not acting primarily for his principal.”). Nor can Gourary avoid imputation by speculating, as he does in his opposition papers, that Green may have acquired the information confidentially, as Laster’s attorney. Nowhere in the complaint does Gourary allege such dual representation. Gourary’s . . dismissed malpractice claim against Green was premised entirely on Green’s alleged dual representation of Paul Gourary and Oliver Macomber. Having had a full and adequate opportvnity to litigate the issue, Gourary may not now attempt to relitigate an issue “which [was] raised and determined against [him] or which could have been raised on a prior appeal.” Moran Enters., Inc., 96 A.D.3d at 916. Therefore, accepting the complaint’s factual allegations as true, Green’s knowledge concerning the transaction, ‘ . including that the offer allegedly was substantially below market value, must be imputed to Gourary. The imputation of Green’s knowledge t.o Gourary renders plaintiffs allegations, that Laster’s concealment of material facts proximately caused an injury to Gourary, “inherently incredible.” Skillgames, LLC, 1 A.D.3d at 250. Therefore, to the extent that the breach of fiduciary duty claim is premised on Laster’s alleged failure to make material disclosures, the complaint fails to state a cause of action. See, e:g., Laub v Faessel, 297 A.D.2d 28, 31 (1st Dep’t 2002) (stating that for breach of fiduciary, “plaintiff must establish that the alleged misrepresentations or other misconduct were the direct and proximate cause of the losses claim”); Pokoik v. Pokoik, 115 A.D.3d 428, 429 ‘· (1st Dep’t 2014).”