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]”

Irony abounds in the legal malpractice world. Missteps in legal malpractice litigation are not that rare. Here an appeal was dismissed for lack of a transcript.

“In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Queens County (Carmen R. Velasquez, J.), entered August 21, 2023. The order, insofar as appealed from, after a hearing to determine the validity of service of process, granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a) to dismiss the complaint.

ORDERED that the appeal is dismissed, without costs or disbursements.

CPLR 5526 provides, inter alia, that “[t]he record on appeal from an interlocutory judgment or any order shall consist of the notice of appeal, the judgment or order appealed from, the transcript, if any, the papers and other exhibits upon which the judgment or order was founded and any opinions in the case.” “It is the obligation of the appellant to assemble a proper record on appeal” (Bruzzese v Bruzzese, 203 AD3d 1007, 1010). “Appeals that are not based upon complete and proper records must be dismissed” (Garnerville Holding Co. v IMC Mgt., 299 AD2d 450, 450).

Here, the appellant failed to include, in the record on appeal, the transcript of the hearing that was held before the Supreme Court to determine the validity of service of process. The omission of the transcript inhibits this Court’s ability to render an informed decision on the issues raised by the appellant. Accordingly, the appeal must be dismissed (see Rene v Abrams, 193 AD3d 1001; Clarke v Clarke, 90 AD3d 690, 691; Garnerville Holding Co. v IMC Mgt., 299 AD2d at 450).”

Ellen’s Stardust, Inc. v Sturm 2025 NY Slip Op 30488(U) February 6, 2025 Supreme Court, New York County Docket Number: Index No. 651690/2021 is a short and direct decision by Judge: Andrew Borrok In it he merely quotes an interim AD decision about the second amended complaint to demonstrate that a motion against the third amended complaint is unwarranted.

“Reference is made to a Decision and Order of the Appellate Division (NYSCEF Doc. No. 131), dated April 4, 2024, which provided that the plaintiffs stated a cause of action sounding in accounting malpractice and aiding and abetting fraud where the scope of representation was limited to compilation services and the amount of the alleged harm was disclosed in the financial statements because the movant was alleged to be on notice of the potential fraudulent conduct and participated in it:

“We find that the claims for accounting malpractice and aiding and abetting fraud
should not have been dismissed pursuant to CPLR 3211(a)(7) and CPLR 3211(a)(1). A
motion pursuant to CPLR 3211(a)(1) to dismiss a complaint or petition on the ground that a defense is founded on documentary evidence may be appropriately granted where the documentary evidence utterly refutes the plaintiff’s or petitioner’s allegations conclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]).”

“Thus, the defendants are not correct that they are entitled to dismissal of the causes of action sounding in malpractice (fourth cause of action) or aiding and abetting fraud (fifth cause of action).
It simply does not matter that previously the plaintiff was formerly known as 1650 Broadway or when the alleged fraudulent underlying conduct took place given when it is alleged to have been revealed.
The Court has considered the parties’ remaining arguments and finds them unavailing.”

HOF I Grantor Trust 5 v YLW Squared Inc. 2025 NY Slip Op 30681(U) February 26, 2025 Supreme Court, Kings County Docket Number: Index No. 531361/22 Judge: Lawrence Knipel is a mess. A foreclosure granted on default, late and multiple motions to vacate, a novel and intentional attempt to get around word limits in motions and a host of fraud claims all end in a motion denying the owners any relief.

“Upon the foregoing papers in this action to foreclose a commercial mortgage encumbering the property at 53 Madison Street in Brooklyn (Property). non-party Leon Watson (Watson), a self-represented litigant and a 50% shareholder in the corporate borrower defendant. YLW Squared Inc. (YL W Squared or Defendant Borrower), moves (in motion sequence [mot. seq.] four), by order to show cause (OSC), for an order: (1 )staying the foreclosure auction of the Property that was scheduled on June 13, 2024; 1 (2) vacating the February 29, 2024 judgment of foreclosure and sale,2 pursuant to CPLR 317, 5015 (a) (1), 5015 (a) (4), 1001 and in the substantial interest of justice; (3) vacating the June 6. 2023 order of reference. pursuant to CPLR 317, 5015 (a) (1). 5015 (a) (4). 1001 and in the substantial interest of justice; ( 4) dismissing this action for lack of personal jurisdiction, pursuant to CPLR 3211 (a) (8); and (5) awarding defendants actual, compensatory, punitive, statutory and treble damages (NYSCEF Doc No. 81 ). Defendant and guarantor of the mortgage. Yvonne Williams (Defendant Guarantor or Williams), a self-represented litigant, moves (in mot. seq. five), by OSC, for the identical relief that Watson seeks (NYSCEF Doc No. 82). Watson also moves (in mot. seq. seven) for an order: (1) granting him leave to intervene in this action: (2) vacating any default judgment entered against Defendant Borrower YL W Squared; and (3) dismissing the complaint as against YL W Squared (NYSCEF Doc No. 159). YL W Squared moves (in mot. seq. eight) for an order. pursuant to CPLR 5015 vacating any and all default judgments entered against it and Yvonne Williams and dismissing the complaint (NYSCEF Doc No. 247). Defendant YL W Squared also redundantly moves (in mot. seq. nine) for an order:

“dismissing the complaint, vacating all orders issued in this matter, for an order pursuant to CPLR § 5015 vacating any and all default judgments entered against (it] and Yvonne Williams. Dismissing the Summons and Complaint on the grounds that the pleadings were improperly served and verified by an attorney, and/or based on procedural and substantive deficiencies, including lack of standing, fraud, improper service, and lack of jurisdiction” (NYSCEF Doc No. 267).

After YL W Squared was “denied permission to submit an oversized brief . . ., ” defense counsel claims that she ·’was forced to proceed , with multiple motions so that the Court would be presented with the facts … ” (NYSCEF Doc No. 331 at, 3). YLW Squared moves in three separate motions (mot. seq. l 0, 11 and 12) for the identical relief previously sought in motion sequences eight and nine…”

“Plaintiff and its counsel at Deutsch & Schneider LLP cross-move (in mot. seq. 16) for an order: ( 1) awarding treble damages incurred by Plaintiff and its counsel as against defense counsel Theresa Gedeon for her violation of Judiciary Law§ 487: (2) awarding Plaintiff reasonable attorneys’ fees, pursuant to Part 130, incurred in responding to 11 frivolous post-judgment motions filed by YI ,W Squared, Williams and Watson.”

“Defense counsel further argues that Williams’ signature was forged on the promissory note (NYSCEF Doc No. 248 at~ 15 ). Williams, however, inconsistently admits (in an affidavit submitted in support of mot. seq. five) that she and Watson, as shareholders of YL W Squared, hired a loan consultant and ‘·secured financing for the purchase of 53 Madison Street through Insula … ” (NYSCEF Doc No. 86 at ~,,r 15-17). Defense counsel’s assertion that the loan documents were forged is unavailing since Williams admits that she and Watson knowingly obtained financing for YLW Squared’s purchase of the Property. The claim of forgery for the first time at this late juncture is indeed suspect. especially since Williams and YL W Squared do not deny that Williams made interest payments on the loan. In conclusion. neither YL W Squared and its counsel. nor Williams, provided any valid legal or factual ground to vacate their appearance defaults, the order of reference or the judgment of foreclosure and sale. Consequently, the motions to vacate and dismiss filed by Williams and YL W Squared in mot. seq. five and eight are denied, and the redundant and duplicative motions seeking the identical relief (mot. seq. nine, 10, 11 and 12) are denied as moot.”

“While YL W Squared and its counsel admittedly filed duplicitous motions for the same relief in an effort to circumvent this court’s denial of its request to submit oversized moving papers, the court, in its discretion, denies Plaintiffs cross-motion for the imposition of Part 130 sanctions. Defense counsel is admonished, however, that sanctions may be imposed ifYL W Squared continues with vexatious litigation and repetitive motions seeking the same relief to further delay the final stage of these proceedings. This court has reviewed the voluminous papers submitted by the parties and the redundant arguments that were previously raised, considered and rejected by this court. The court has also considered the merits of the remaining motions filed by the parties, including what appears to be a motion for a protective order.for defense counsel based on an unrelated prior action involving her former employer, a motion to disqualify Plaintiffs counsel and for the imposition of Part 130 sanctions against Plaintiffs counsel. The forgoing motions are each denied, as they have no merit and seem to have been filed in an obvious attempt to delay a foreclosure sale of the Property.”