9/11 continues to cast a long shadow over the personal injury world, and will until 2090. That is the lesson of Mollahan v Worby Groner Edelman & Napoli Bern LLP 2025 NY Slip Op 30644(U) February 25, 2025 Supreme Court, New York County Docket Number: Index No. 195690/2022 Judge: David B. Cohen. As the law concerning injuries suffered during and after the WTC destruction continued to change, attorneys who worked in the area had to evolve client representation as well.

“In the complaint, plaintiffs allege that, beginning on September 12, 2001 and through March 15, 2002, Robert Mollahan (Robert), in the course of his employment as a disaster recovery engineer for Sprint Corporation, was exposed to toxins at or near the September 11, 2001 attack site at the World Trade Center (WTC). On May 19, 2006, Robert died from renal cell carcinoma, a form of cancer, allegedly caused by this exposure. Robert was survived by his parents and his brothers, plaintiffs Thomas and Edward Mollahan, and on April 5, 2007, plaintiffs were issued Letters Testamentary and appointed coexecutors of decedent’s estate. On September 11, 2006, WGEN1 entered into a retainer agreement with Edward, as an intended executor of Robert’s estate, to represent him in connection with claims to recover damages for Robert’s conscious pain and suffering and wrongful death caused by Robert’s exposure to toxins at the WTC. As of May 2007, WGEN also represented Thomas related to Robert’s claims.

The retainer agreement, bearing the header of WGEN, states that Edward is hiring WGEN to “prosecute a claim for personal injuries for damages suffered by [Robert] arising out of [Robert’s] exposure to toxic substances relating to 9/11 rescue or recovery operations.” (NYSCEF 39). In 2007 and/or 2008, WGEN commenced one or more civil actions in the Federal District Court of the Southern District of New York, seeking damages on behalf of plaintiffs. It is alleged that WGEN, NB, and WGE represented plaintiffs, and that LoPalo was an attorney associated with these firms. On January 2, 2011, the Zadroga Act was passed, thereby reactivating the September 11, 2001 Victim Compensation Fund of 2001 (VCF) to provide compensation to those who suffered a physical injury or condition caused by the terrorist attack on 9/11 or incurred during the rescue, recovery, and debris removal efforts that took place during any period beginning on September 11, 2001, and ending on May 30, 2022. The Zadroga Act originally authorized the VCF to accept claims for a period of five years, ending in October 2016. On or about October 12, 2012, the VCF added kidney cancer, including but not limited to renal cell carcinoma, to the list of 9/11-Related Physical Health Conditions for which compensation could be received from the VCF. On December 18, 2015, the “Reauthorized Zadroga Act” was signed into law, which, among other things, extended the VCF for an additional five years, allowing individuals to submit claims until December 18, 2020. On July 29, 2019, the “VCF Permanent Authorization Act” was signed into law, extending the deadline to file a claim with the VCF to October 1, 2090. According to the VCF statute and applicable rules and regulations, in order to qualify for VCF compensation, all releases regarding settlement of actions must have been tendered prior to October 13, 2012, and all claims that were not settled with the tendering of releases prior to October 13, 2012, must have been withdrawn or dismissed without settlement on or before the date the claim was filed with the VCF, in order to be eligible to receive compensation from the VCF. On September 18, 2015, WGEN, NB, and WGE referred plaintiffs to the Barasch Firm for the purpose of filing a claim with the VCF, and on October 7, 2015, Edward retained the Barasch Firm for this purpose. On or about December 28, 2016, WGEN and NB had plaintiffs, as co-executors of Robert’s estate, execute two settlement agreements and general releases (2016 Settlement), which settled and released all claims in the 9/11-Related Lawsuit(s) for the total sum of approximately $6,200.00. On or about January 18, 2017, WGEN counter-signed the settlements. Plaintiffs allege that as the signing and tendering of the 2016 Settlement occurred after October 13, 2012, they were thereby rendered ineligible to receive compensation from the VCF. Plaintiffs contend that WGE and NB did not advise plaintiffs of the consequences of signing these releases in 2016, and that had they known the consequences, they would not have signed them.”

“In his motion, LoPalo argues that plaintiffs had three years, or until December 28, 2019, to bring his claim, and since plaintiffs brought this action on November 21, 2022, it is timebarred and must be dismissed. In opposition, plaintiffs allege that the key dates for the statute of limitations are either May 29, 2020, when the VCF affirmed the denial of plaintiffs’ claim, or June 11, 2019, when LoPalo appeared at the VCF hearing on plaintiffs’ behalf, contending that they were continuously represented by LoPalo during the appeal. As New York State statutes of limitation were tolled during the COVID-19 pandemic, plaintiffs contend that this action would be timely from either date. If the accrual date of this malpractice lawsuit is the date when the alleged malpractice took place, then that date here would be December 28, 2016, when WGEN and/or NB had plaintiffs, as co-executors of decedent’s estate, execute the settlement agreements and releases. It is the signing of these agreements that precluded plaintiffs from obtaining compensation from the VCF, and plaintiffs contend that it was LoPalo’s failure to inform and advise them of this prior to the signing of these releases that constituted malpractice. Even assuming that the accrual date was December 28, 2016, plaintiffs argue that the application of the continuous representation doctrine tolled the running of the three-year statute of limitations until June 18, 2019, when LoPalo represented plaintiffs at the VCF hearing. LoPalo states that he was retained in the 9/11-related lawsuits and was not counsel on the VCF claims. He maintains that plaintiffs concede as much in their complaint, which makes clear that the Barasch Firm handled the VCF claim. LoPalo argues that his appearance at the VCF appeals hearing does not constitute representation, nor does it qualify for continuing representation as the VCF claim was handled by the Barasch Firm and was a distinct and separate action from that commenced by LoPalo, and the subsequent VCF hearing is separate and distinct from the original representation for which LoPalo and his firm were retained.”

“Therefore, plaintiffs’ complaint sufficiently alleges that the broad language of the retainer agreement and LoPalo’s and WGE’s actions created in plaintiffs a reasonable impression that Lopalo and WGEN were actively addressing their legal needs. During this time, plaintiffs would not be expected to bring a lawsuit against LoPalo or WGEN and jeopardize their ongoing relationship of trust (see Greene, 56 NY2d at 94; Glamm 57 NY2d at 94; see also Sendar Dev. Co., LLC, 68 AD3d at 503 [the continuous representation doctrine applies when “a plaintiff shows that he or she relied upon an uninterrupted course of services related to a particular duty breached”]).”

Kraemer v Edelstein 2025 NY Slip Op 30623(U) February 24, 2025 Supreme Court, New York County Docket Number: Index No. 153243/2024 Judge: Ariel D. Chesler is summed up simply “Plaintiff has come to this Court with nothing short of an unintelligible conspiracy theory not a cause of action.”

“Between 2014 and 2015, plaintiff was involved in a Housing Court proceeding with his landlord, Majestic Realty Corp. and his landlords the Edelstein defendants. Ultimately, in 2015 he was evicted from his apartment. In a series oflawsuits filed in the Southern District by plaintiff between 2014 and 2019, he alleged various claims against, among others, the Edelstein defendants, Majestic Realty Corporation, the New York City Department of Housing, Preservation, and Development (HPD), the New York State Division of Housing and Community Renewal (DHCR), the Housing Court Judge who presided over the eviction proceedings, and the city marshal who carried out the eviction.

As noted by Judge Loretta A. Preska in her 2014 decision, the “The gravamen of this complaint is that Defendants have negligently responded to Plaintiffs efforts to remedy the condition of his apartment” which had made been uninhabitable by mites. However, in other subsequent suits, plaintiff alleged that the landlord purposely pumped poison fumes into his apartment and also that HPD, the Housing Court Judge, and the marshal had failed to carry out their duties, committed fraud and/or engaged in other unlawful behavior. In one of the suits, Plaintiff alleged “that unnamed individuals drugged his daughter to prevent her from providing testimony, while also coercing her to testify; that unnamed individuals kidnapped his daughter to force him to stop pursuing an appeal; and that his ‘daughter was overdosed twice on appeal. And twice while in captivity until she convulsed causing permanent mental impairment.”‘ He further alleged “that there is far-reaching conspiracy to tamper with his lawsuits that began after he discovered, approximately 17 years ago, that his daughter was being abused.” Plaintiff asserted that his daughter was severely abused by individuals in Pennsylvania. Judge Preska dismissed plaintiffs various filings on numerous grounds, including lack of subject matter jurisdiction, failure to state a claim, and immunity. In her 2017 decision (see Kraemer v. Edelstein et al., No. 17-CV-2910 [LAP][S.D.N.Y. Sep. 19, 2017]), she also dismissed claims against defendant Florence Edelstein on the grounds of res judicata since virtually identical claims had been raised in earlier actions. To the extent plaintiff had pleaded state law claims, Judge Preska declined to exercise supplemental jurisdiction over the same.”

“Plaintiff’s cause of action against Ms. Spitale must be dismissed as this Court lacks personal jurisdiction of Defendant Spitale. The claims against Spitale, who is an attorney who lives and practices in Pennsylvania, stem from her role as the court-appointed guardian of Plaintiff’s adult daughter, who is also a Pennsylvania resident. Plaintiff alleges that Spitale is involved in a child slave manufacturing business.

The entirety of the transactions and occurrences between Plaintiff and Defendant Spitale (none of which appear to be legal causes of action) occurred in the commonwealth of Pennsylvania. Defendant Spitale does not do business in the state of New York. She does not reside in New York. In sum, she has no contacts with New York to support a finding this forum has personal jurisdiction over Defendant Spitale. Accordingly, the Court may not exercise personal jurisdiction over Spitale under any provision of CPLR § 302(a), and dismissal pursuant to CPLR § 321 l(a)(8) is thus mandated. Further, because the situs of the alleged injury occurred in Pennsylvania-rather than New York-there is no jurisdiction under CPLR 302(a)(3) (i) and (ii).”

Kliger-Weiss Infosystems, Inc. v Ruskin Moscou Faltischek, P.C. 2025 NY Slip Op 00956
Decided on February 19, 2025 Appellate Division, Second Department is that very rare reversal of summary judgment at the appellate level. The Decision illustrates the depth to which the Courts will go in dissecting the “but for” causation in the underlying case.

“The underlying facts and procedural history are summarized in our decision and order determining a prior appeal in this action (see Kliger-Weiss Infosystems, Inc. v Ruskin Moscou Faltischek, P.C., 159 AD3d 683; see also Matter of Kliger-Weiss Infosystems, Inc. v Epicor Retail Solutions Corp., 2011 NY Slip Op 33799[U], *1-2 [Sup Ct, NY County]). In short, the plaintiff, an entity that provides cloud technology solutions and point-of-sale systems to retailers, seeks to recover damages from the defendant, a law firm that represented the plaintiff, inter alia, in an effort to resolve a prior federal action (hereinafter the federal action) between the plaintiff and NSB Retail Solutions, Inc., a successor in interest of STS Systems, Ltd. (hereinafter STS), and a predecessor in interest of Epicor Retail Solutions Corporation (hereinafter Epicor) (see NSB U.S. Sales, Inc. v Brill, 2007 WL 258181, 2007 US Dist Lexis 7813 [SD NY, No. 04 Civ 9240 (RCC)]). In this action, the plaintiff alleged, among other things, that the defendant negligently failed to incorporate an evergreen provision in a 2007 settlement agreement resolving the federal action (hereinafter the settlement agreement). A 2001 agreement between the plaintiff and STS (hereinafter the 2001 agreement) contained the evergreen provision preferred by the plaintiff, and the settlement agreement superseded the 2001 agreement, at least to the extent they conflicted with one another. Michael Faltischek, one of the defendant’s attorneys, primarily negotiated the settlement agreement on the plaintiff’s behalf and communicated with the plaintiff in relation thereto. On the prior appeal, this Court determined that the Supreme Court properly denied that branch of the defendant’s motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging legal malpractice but that it should have granted those branches of the motion which were to dismiss the other causes of action (see Kliger-Weiss Infosystems, Inc. v Ruskin Moscou Faltischek, P.C., 159 AD3d at 683-685). [*2]
Thereafter, the defendant moved, inter alia, for summary judgment dismissing the cause of action alleging legal malpractice. By order dated September 10, 2020, the court, among other things, granted that branch of the defendant’s motion. The plaintiff appeals.”

“Here, contrary to the Supreme Court’s determination, the defendant failed to establish its prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging legal malpractice (see Aqua-Trol Corp. v Wilentz, Goldman & Spitzer, P.A., 197 AD3d 544, 545). The defendant’s “submissions in support of [its] motion did not establish, prima facie, the absence of at least one element of the legal malpractice cause of action” (McGlynn v Burns & Harris, Esq., 223 AD3d at 734). For example, the defendant argued that the plaintiff was unable to prove that its attorneys failed to exercise the requisite skill and knowledge, since the plaintiff, in a discovery response, stated that it did “not expect to call an expert witness at . . . trial.” The defendant’s argument constituted “an effort to point out gaps in the plaintiff’s proof, which was insufficient to meet the defendant[‘s] burden as the party moving for summary judgment” (Iannucci v Kucker & Bruh, LLP, 161 AD3d 959, 960; see Kempf v Magida, 116 AD3d at 736). In any event, the plaintiff has alleged, inter alia, that its principal conveyed to Faltischek the importance of including the 2001 agreement’s evergreen provision in the settlement agreement; that Faltischeck indicated that he would ensure that the settlement agreement contained such a provision; and that he nonetheless directed the principal to execute the settlement agreement, notwithstanding the fact that it did not contain the requested provision. “Under the circumstances[,] . . . the plaintiff need not produce expert testimony to establish that the defendant failed to exercise the requisite level of skill and knowledge” (Northrop v Thorsen, 46 AD3d at 782; see Shapiro v Butler, 273 AD2d 657, 658; cf. Greene v Payne, Wood & Littlejohn, 197 AD2d 664, 666).

The defendant similarly failed to demonstrate the absence of triable issues of fact with regard to proximate cause. Contrary to the defendant’s contention, its submissions were sufficient to place the credibility of Epicor’s counsel at issue as it relates to his deposition testimony that Epicor would not have agreed to an evergreen provision when negotiating the settlement agreement (see Lurie v Lurie, 200 AD3d 669, 670; Brown v Kass, 91 AD3d 894, 895-896; cf. Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 52). Regardless, even if the defendant established that Epicor would not have agreed to such a provision, the plaintiff’s principal asserted that he would not have executed the settlement agreement had he known it did not contain the requested evergreen provision. Absent the settlement agreement, the 2001 agreement, which included the evergreen provision preferred by the plaintiff, would have remained in effect and the federal action would have continued to a disposition. Since the defendant failed to establish that the plaintiff would not have prevailed in the federal action, or that the plaintiff otherwise would have incurred the claimed damages regardless of the defendant’s alleged negligence, the defendant did not meet its prima facie burden on the issue of proximate cause (see Chicas v Cassar, 212 AD3d 704, 705; Detoni v McMinkens, 147 AD3d 1018, 1020; cf. Sang Seok Na v Schietroma, 163 AD3d 597, 599).

Moreover, the defendant’s contention that the cause of action alleging legal malpractice was time-barred was itself barred by the law of the case doctrine. “The doctrine of the ‘law of the case’ is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned” (Martin v City of Cohoes, 37 NY2d 162, 165). “An appellate court’s resolution of an issue on a prior appeal constitutes the law of the case and is binding on the Supreme Court, as well as on the appellate court . . . and operates to foreclose re-examination of the question absent a showing of subsequent evidence or change of law” (Matter of Norton v Town of Islip, 167 AD3d 624, 626 [alterations and internal quotation marks omitted]). Here, the defendant’s statute of limitations argument was raised and decided against it on the prior appeal in this action (see Kliger-Weiss Infosystems, Inc. v Ruskin Moscou Faltischek, P.C., 159 AD3d at 685). The defendant did not submit any new evidence in support of its motion for summary judgment or argue that there had been a change in the law, and its argument was therefore barred by the law of the case doctrine (see Bank of N.Y. Mellon v Selig, 213 AD3d 894, 896; US Bank, N.A. v Morrison, 160 AD3d 681, 682-683).”

In DiCarlo v Russo Law Group, P.C. 2025 NY Slip Op 00843 Decided on February 13, 2025
Appellate Division, Second Department it appears that a complaint was served, a complaint was demanded and a stipulation to extend the time to serve the complaint was reached. The stipulation was for an additional one-month’s time. No further written agreements were discussed in the appellate decision.

“On March 15, 2019, the plaintiffs commenced this action by filing a summons with notice through the New York State Courts Electronic Filing System. On May 16, 2019, the defendants Russo Law Group, P.C., Jeffrey R. Neuman, Kim N. Christian, and Frank L. Buquicchio served a notice of appearance and demand for a complaint. On June 20, 2019, the defendant Emily Rothenberg also served a notice of appearance and demand for a complaint. The plaintiffs and Russo Law Group, P.C., Neuman, Christian, and Buquicchio entered into a stipulation dated June 1, 2019 (hereinafter the June 2019 stipulation), extending the plaintiffs’ time to serve a complaint through and including July 8, 2019.

The plaintiffs did not serve the defendants with a complaint until on or about December 8, 2020, more than one year later. The defendants moved pursuant to CPLR 3012(b) to dismiss the action for failure to timely serve a complaint, or, in the alternative, pursuant to CPLR 3211(a) to dismiss the complaint, or, in the alternative, to stay the action pursuant to CPLR 2201. In an order dated March 31, 2021, the Supreme Court denied the motion. The defendants appeal.

“‘To avoid dismissal for failing to timely serve a complaint after a demand has been made pursuant to CPLR 3012(b), and to be entitled to an extension of time to serve the complaint under CPLR 3012(d), a plaintiff [must] demonstrate both a reasonable excuse for the delay and a potentially meritorious cause of action'” (Belli v Belli, 207 AD3d 617, 618, quoting Percival v [*2]Northwell Health Sys., 173 AD3d 916, 917). “Generally, the determination of what constitutes a reasonable excuse for a default lies within the sound discretion of the court; however, reversal is warranted where the court improvidently exercises that discretion” (Trokaik Realty, Inc. v HP Yuco, HDFC, Inc., 188 AD3d 1281, 1282).

Here, the Supreme Court improvidently exercised its discretion in denying that branch of the defendants’ motion which was pursuant to CPLR 3012(b) to dismiss the action. While settlement negotiations in certain instances may constitute a reasonable excuse for a default, here, contrary to the plaintiffs’ contention, the plaintiffs failed to demonstrate that the parties were actively engaged in settlement negotiations so as to excuse the delay in serving the complaint more than one year past the deadline set forth in the June 2019 stipulation (see Timmerman v Gentile, 224 AD3d 862, 863; Luksic v Killmer, 100 AD2d 864, 864). In light of the plaintiffs’ failure to demonstrate a reasonable excuse, we need not consider whether they had a potentially meritorious cause of action (see Trokaik Realty, Inc. v HP Yuco, HDFC, Inc., 188 AD3d at 1282).”

In McNaughton v 5 W. 14 Owners Corp. 2025 NY Slip Op 00831 Decided on February 13, 2025 Appellate Division, First Department Plaintiff lost at the Supreme Court level and was sanctioned. On appeal, the sanctions were vacated, but the dismissals were affirmed.

“Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about June 15, 2021, which granted the motion of defendants Galen J. Criscione and Criscione Ravala LLP (together, the Criscione defendants) to dismiss the complaint as against them, unanimously affirmed, without costs. Order, entered June 15, 2021, same court and Justice, which, to the extent appealed from as limited by the briefs, granted the motion of defendants David L. Moss and David L. Moss & Associates LLC (together, the Moss defendants) to dismiss the complaint as against them and for sanctions, unanimously modified, on the law, to deny the motion for sanctions, and otherwise affirmed, without costs. Order, entered on or about June 15, 2021, same court and Justice, which granted the motion of defendants 5 West 14th Owners Corp., Century Management Corp., Norma Bellino, and Lisa Golub (collectively, the co-op defendants) for leave to file a late answer or otherwise respond to the complaint, and supplemental order, entered on or about June 16, 2021, which extended the co-op defendants’ deadline to respond until July 30, 2021, unanimously affirmed, without costs. Order, same court and Justice, entered on or about October 17, 2023, which denied plaintiff’s motion to vacate his default on the co-op defendants’ motion to dismiss the claims against them and for recusal, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered on or about November 28, 2023, which, insofar as appealed from and appealable, denied plaintiff’s motion to renew his motion to vacate and for recusal, unanimously dismissed, without costs, as abandoned.”

“Plaintiff, a retired attorney, alleges that the Criscione defendants engaged in legal malpractice when they failed to warn him that a New York court would lack personal jurisdiction over the defendants in a matter concerning the estate of plaintiff’s late sister and that the action would be dismissed for that reason if he filed it in New York rather than in Massachusetts. Plaintiff’s allegations failed to sufficiently state that defendants breach of duty proximately caused plaintiff to suffer “actual and ascertainable damages” for which he is entitled to be compensated (cf. Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]).

As to the telephone records, even if the Criscione defendants negligently failed to obtain all the records that plaintiff wanted, he fails to allege how he sustained actual and ascertainable damages as a result (see Rudolf, 8 NY3d at 442).

Supreme Court properly dismissed the legal malpractice cause of action against the Moss defendants. Even if, as plaintiff alleges, the Moss defendants were negligent in not finding a private detective who could lift fingerprints from his apartment to show that his building staff had been in his apartment illegally, he fails to allege how he “sustain[ed] actual and ascertainable damages” arising from that alleged negligence. Such damages [*2]are purely speculative and cannot sustain a cause of action for malpractice (id. at 443). Furthermore, plaintiff’s allegations that the Moss defendants “failed to do some important work for [him] involving the records of [his] sister’s probate proceeding” are not particular enough to give the parties notice of the transactions intended to be proved (CPLR 3013).

Supreme Court also properly dismissed the cause of action for fraud against both the Criscione and Moss defendants. Plaintiff fails to plead that cause of action with sufficient particularity against the Moss defendants (CPLR 3016[b]; see Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 492 n 3 [2008]). Further, even assuming that the cause of action is pleaded with sufficient particularity against the Criscione defendants, plaintiff fails to adequately plead scienter, a necessary element of a cause of action for fraud, as against those defendants (see Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 178 [2011]; Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]). Rather, the complaint alleges, in conclusory terms, that Galen Criscione engaged in fraud and fraud in the inducement when he failed to advise plaintiff before he entered into the retainer agreement that the Supreme Court in New York could not assert personal jurisdiction over the defendants in the estate matter. These allegations offer no facts that would allow a court to infer that Galen Criscione acted deliberately to deceive plaintiff (see Pludeman, 10 NY3d at 492; Eurycleia Partners, 12 NY3d at 559).

We reject plaintiff’s assertion that the Moss and Criscione defendants defrauded plaintiff because they failed to disclose that they were “working as agents of the NYPD.” Even putting aside the fact that the allegations are inherently incredible, the first cause of action, interposed against the Criscione defendants, alleges that they were working for the police, but the second cause of action, interposed as against the Moss defendants, does not make that allegation. In any event, inherently incredible factual allegations are not entitled to be accepted as true (see Skillgames, LLC v Brody, 1 AD3d 247, 250 [1st Dept 2003]).

The award of sanctions to the Moss defendants must be vacated because Supreme Court failed to satisfy the procedural requirements of 22 NYCRR 130-1.2. The court did not set forth the conduct it found to be frivolous, and provided no reason for its decision to impose legal fees and costs (see Gordon Group Invs., LLC v Kugler, 127 AD3d 592, 595 [1st Dept 2015]).”

Milennium Dev. & Constr., LLC v Pick 2025 NY Slip Op 00853 Decided on February 13, 2025 Appellate Division, Second Department brings to mind the proverb (from Plutarch and Suetonius) that Caesar’s wife should be free from suspicion as well as from accusation. In this case, which of course alleges attorney error, the matter was dismissed after procedural errors and delays took place.

“On or around February 21, 2020, the plaintiffs commenced this legal malpractice action against the defendants by filing a summons with notice. On March 17, 2020, the defendants demanded the service of a complaint. On April 8, 2021, the defendants moved pursuant to CPLR 3012(b) to dismiss the action for failure to timely serve a complaint. The plaintiffs opposed and cross-moved pursuant to CPLR 3012(d) for leave to file and serve a late complaint and to compel the defendants to accept service thereof. The defendants opposed the plaintiffs’ cross-motion. In an order dated July 16, 2021, the Supreme Court granted the defendants’ motion and denied the plaintiffs’ cross-motion.

Subsequently, the plaintiffs moved for leave to renew and reargue their opposition to the defendants’ prior motion pursuant to CPLR 3012(b) to dismiss the action for failure to timely serve a complaint and their prior cross-motion pursuant to CPLR 3012(d) for leave to file and serve a late complaint and to compel the defendants to accept service thereof. The defendants opposed. In an order dated June 7, 2022, the Supreme Court granted the plaintiffs’ motion and, upon renewal [*2]and reargument, in effect, vacated the July 16, 2021 order, denied the defendants’ prior motion, and granted the plaintiffs’ prior cross-motion. The defendants appeal.”

“A motion for leave to renew “shall be based upon new facts not offered on the prior motion that would change the prior determination” (CPLR 2221[e][2]) and must “contain reasonable justification for the failure to present such facts on the prior motion” (id. § 2221[e][3]; see Constructamax, Inc. v Dodge Chamberlin Luzine Weber, Assoc. Architects, LLP, 157 AD3d 852, 853; JPMorgan Chase Bank, N.A. v Novis, 157 AD3d 776, 777). While a court has discretion to entertain renewal based on facts known to the movant at the time of the original motion, the movant must set forth a reasonable justification for the failure to submit the information in the first instance (see HSBC Bank USA, N.A. v Shahid, 189 AD3d 1008, 1010; JPMorgan Chase Bank, N.A. v Novis, 157 AD3d at 777; Hernandez v Nwaishienyi, 148 AD3d 684, 687). “[A] motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation” (Seegopaul v MTA Bus Co., 210 AD3d 715, 716; see Hernandez v Nwaishienyi, 148 AD3d at 687). Moreover, “[l]eave to renew is not warranted where the factual material adduced in connection with the subsequent motion is merely cumulative with respect to the factual material submitted in connection with the original motion” (Constructamax, Inc. v Dodge Chamberlin Luzine Weber, Assoc. Architects, LLP, 157 AD3d at 853 [internal quotation marks omitted]; see Deutsche Bank Natl. Trust Co. v Galloway, 214 AD3d 625, 626).

Here, the Supreme Court should have denied that branch of the plaintiffs’ motion which was for leave to renew. In addition to submitting the same facts, albeit with some elaboration and in slightly greater detail, that they had submitted in opposition to the underlying motion and on the underlying cross-motion, the plaintiffs presented certain new facts, which were known to them prior to the date on which they opposed the defendants’ prior motion and filed their prior cross-motion. Yet, the plaintiffs failed to set forth a reasonable justification for failing to present the new facts in connection with the underlying motion and cross-motion. Thus, the court improvidently exercised its discretion in granting that branch of the plaintiffs’ motion which was for leave to renew (see Constructamax, Inc. v Dodge Chamberlin Luzine Weber, Assoc. Architects, LLP, 157 AD3d at 853; JP Morgan Chase Bank, N.A. v Novis, 157 AD3d at 777).

The Supreme Court also improvidently exercised its discretion in granting that branch of the plaintiffs’ motion which was for leave to reargue. “A motion for leave to reargue shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion” (Sokolnik v Voronova, 221 AD3d 1036, 1036 [internal quotation marks omitted]; see CPLR 2221[d][2]; JPMorgan Chase Bank, N.A. v Novis, 157 AD3d at 778). Here, the plaintiffs acknowledged that the court, in the July 16, 2021 order, did not overlook or misapprehend relevant facts or misapply the law in granting the defendants’ prior motion pursuant to CPLR 3012(b) to dismiss the action for failure to timely serve a complaint and denying the plaintiffs’ prior cross-motion pursuant to CPLR 3012(d) for leave to file and serve a late complaint and to compel the defendants to accept service thereof, thus requiring the denial of that branch of the plaintiffs’ motion which was for leave to reargue (see Degraw Constr. Group, Inc. v McGowan Bldrs., Inc., 178 AD3d 772, 773; cf. Fein v Fein, 192 AD3d 1083, 1085).”

Silver v Baker Botts L.L.P. 2025 NY Slip Op 00732 Decided on February 06, 2025 Appellate Division, First Department tells us that the burden is not high.

“It is well established that the relationship of client and counsel is one of fiduciary reliance and that “[t]he duty to deal fairly, honestly and with undivided loyalty superimposes onto the attorney-client relationship a set of special and unique duties, including maintaining confidentiality, avoiding conflicts of interest, operating competently, safeguarding client property and honoring the clients’ interests over the lawyer’s” (Johnson v Proskauer Rose LLP, 129 AD3d 59, 72 [1st Dept 2015] [internal quotation marks omitted]). Thus, an action for breach of fiduciary duty “requires only that the plaintiff identify a conflict of interest which amounted merely to a substantial factor in [the plaintiff’s] loss” (Ulico Cas. Co. v Wilson Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 10 [1st Dept 2008] [internal quotation marks omitted]).

Here, the complaint alleges that the breach of fiduciary duty claim was based on Baker Botts having engaged in activities involving conflicts of interest, including advising Silver regarding the collection of his firm’s management fees at a rate of 33%, while knowingly failing to disclose impairments in Silver’s investors’ portfolio, and controlling all communications, meetings, and calls with Silver’s insurance companies, which were self-serving and to the detriment of Silver. While Baker Botts asserts that this claim should be dismissed as duplicative of the dismissed legal malpractice claim (see Ullmann-Schneider v Lacher & Lovell-Taylor, P.C., 121 AD3d 415, 416 [1st Dept 2014]), absent the written retainer agreement, which was not included in the record on appeal, a defense as to the scope of its representation cannot conclusively be established (see Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 270-271 [1st Dept 2004]).”

“”[A]s a dispute exists as to the application of the retainer agreement as to defendant, plaintiffs need not elect their remedies and may pursue a quasi-contractual claim for unjust enrichment, as an alternative claim” (Chowaiki & Co. Fine Art Ltd. v Lacher, 115 AD3d 600, 601 [1st Dept 2014]). Further, Silver’s claims of excessive billing and related conduct, which actions are not alleged to have adversely affected their claims or defenses in the underlying action, are not, at this juncture, redundant of the legal malpractice claim.”

It’s unusual to obtain a default judgment against an attorney, but even more unusual to lost the resulting inquest when no damages are demonstrated. That’s what happened in Bobbo Prop. Mgt., Inc. v Faulkner 2025 NY Slip Op 00646 Decided on February 5, 2025 Appellate Division, Second Department.

“In May 2013, the plaintiff commenced this action against, among others, the defendant David V. Faulkner, the plaintiff’s former attorney. The plaintiff alleged, inter alia, that Faulkner was retained to represent the plaintiff in tax certiorari proceedings pursuant to Article 7 of the Real Property Tax Law regarding assessments for the 2010/2011 and 2011/2012 tax years and that Faulkner failed to commence those proceedings within the applicable statute of limitations. In an order dated January 22, 2018, the Supreme Court granted the plaintiff’s oral application to strike Faulkner’s answer and for leave to enter a default judgment against him and set the matter for an inquest. After an inquest on the issue of damages, in a decision dated February 3, 2020, the court found that the plaintiff had failed to establish entitlement to damages. Subsequently, a judgment dated January 20, 2023, was entered in favor of Faulkner and against the plaintiff dismissing the complaint insofar as asserted against Faulkner. The plaintiff appeals.

At an inquest, the plaintiff bears the burden of setting forth a prima facie case as to damages (see Oparaji v 245-02 Merrick Blvd, LLC, 149 AD3d 1091, 1092; Vested Bus. Brokers, Ltd. v Ragone, 131 AD3d 1232, 1234-1235). In a legal malpractice action, “[w]here the injury suffered is the loss of a cause of action, the measure of damages is generally the value of the claim lost” (Campagnola v Mulholland, Minion & Roe, 76 NY2d 38, 42). In a tax certiorari proceeding challenging a property tax assessment, the petitioner is, at a minimum, required to demonstrate the existence of a valid and credible dispute regarding valuation (see Matter of FMC Corp. [Peroxygen Chems. Div.] v Unmack, 92 NY2d 179, 191; Matter of Traditional Links, LLC v Board of Assessors of the Town of Riverhead, 224 AD3d 911, 913), “‘which will most often be accomplished by submission of a detailed, competent appraisal based on standard, accepted appraisal techniques and [*2]prepared by a qualified appraiser'” (Matter of Trump Vil. Section 4, Inc. v Tax Commn. of the City of N.Y., 206 AD3d 746, 747, quoting Matter of Boffa v Assessor and Bd. of Assessment Review of the City of Middletown, 154 AD3d 934, 935).”\

Here, the attorney who represented the plaintiff for the tax years 2009/2010 and 2012/2013 testified at the inquest that he had obtained gross refunds in the amount of $50,447.30 for the 2009/2010 tax year and in the amount of $48,354.36 for the 2012/2013 tax year. However, the plaintiff failed to submit any evidence relating to loss of gross refunds for the 2010/2011 and 2011/2012 tax years. Accordingly, the Supreme Court properly dismissed the complaint insofar as asserted against Faulkner.”