Seibel v Scarola Zubatov Schaffin PLLC 2025 NY Slip Op 00067 Decided on January 07, 2025 Appellate Division, First Department is the story of how a law firm successfully withdrew from a case when the client became less than cooperative.

“The court properly granted defendant’s motion for summary judgment dismissing the complaint for legal malpractice and breach of contract. Contrary to plaintiffs’ contention, the affidavit by defendant law firm managing member, Richard Scarola, was admissible. Scarola’s statements, recounting what Steven Bennett, now deceased, one of the attorneys assigned to plaintiffs’ case, told him, were not offered for the truth of the matters asserted, but for the effect those statements had on Scarola’s state of mind, specifically on why he decided that SZS should discontinue its representation of plaintiffs Rowen Seibel and the Seibel-related entities (see Matter of Bergstein v Board of Educ., Union Free School Dist. No. 1 of Towns of Ossining, New Castle & Yorktown, 34 NY2d 318, 323-324 [1974]). The affidavit of Daniel Brooks, the other attorney assigned to plaintiffs’ matter, was admissible based on his personal knowledge of the facts stated therein. Also contrary to plaintiffs’ contention, the Brooks affidavit did not require the attachment of SZS’s billing statements, as Seibel not only failed to object to the billing statements, but admittedly paid the fees (see Aronson Mayefsky & Sloan, LLP v Praeger, 228 AD3d 182, 185 [1st Dept 2024]). In fact, Seibel did not object to the fees until the instant action; such belated protest is insufficient to defeat summary judgment (see Mintz & Gold LLP v Daibes, 125 AD3d 488, 489 [1st Dept 2015]).

SZS was properly granted summary judgment based on Seibel’s breach of the parties’ retainer agreement (see Markov v Katt, 176 AD3d 401, 401-402 [1st Dept 2019]). The retainer agreement called for a retainer and installment payments from Seibel totaling $500,000 as a cap through discovery and summary judgment (if any). The retainer agreement further provided that either party could terminate the relationship at any time, with SZS having the right to terminate its services if Seibel failed “to cooperate with a reasonable request, or if [SZS] determines, in its sole discretion, that continuing services to [Seibel] would be unethical, impractical, improper or otherwise inappropriate.” Several circumstances warranted SZS’s discontinuation of its representation of Seibel, including: the breach of Seibel’s duty to be truthful about certain kickbacks and his supposed disassociation from agreements with Caesars Enterprises Inc.; Seibel’s refusal to cooperate with SZS’s reasonable request that he produce his prenuptial agreement to Caesars; and the impracticability of continuing the representation due to Seibel’s failure to pay key vendors and expert witnesses and because of Bennett’s untimely death.

Furthermore, SZS demonstrated [*2]that it had grounds to discontinue its services without refunding Seibel’s fees. Seibel failed to object to the billing, which exceeded the $500,000 cap, and admitted that he paid that amount, thereby waiving any right he may have had to insist that SZS either continue representation or refund a portion of its fees (see generally Hyperion Med. P.C. v TriNet HR III, Inc., 190 AD3d 456, 458 [1st Dept 2021]). Seibel is also estopped from claiming that SZS breached the retainer agreement by terminating its services (see Nassau Trust Co. v Montrose Concrete Prods. Corp., 56 NY2d 175, 184 [1982]). SZS relied to its detriment upon Seibel’s agreement to find replacement counsel, and Seibel never claimed that SZS was not entitled to discontinue its representation, nor did he request that SZS refund the fees already paid.”

Try to follow the events in 482 Tompkins Realty LLC v 482 Tompkins Capital LLC 2024 NY Slip Op 34520(U) December 18, 2024 Supreme Court, Kings County Docket Number: Index No. 1322/18 Judge: Larry D. Martin and decide for yourself who might be at fault.

“Plaintiffs commenced this action to recover damages and equitable relief stemming from a transaction where the subject property at 482 Tompkins Avenue in Brooklyn, owned by 482 Realty, was conveyed to defendant 482 Tompkins SME LLC (SME) as part of an alleged fraudulent foreclosure rescue scheme. 482 Realty, a limited liability company held by members Emeli, as to a 90% interest, and Komolafe, as to a 10% interest, assumed title to the subject property by deed dated November 15, 2007. In 2015, a foreclosure action was commenced on the mortgage encumbering the property. Plaintiffs wished to retain ownership of the property, but were unable to obtain the refinancing necessary to pay off the delinquent mortgage. Consequently, plaintiffs came into contact with defendant Eran Silverberg (Silverberg), member of defendant SME Capital Management LLC (SME Capital), who allegedly promised to help plaintiffs obtain refinancing that would save the subject property from foreclosure. According to the complaint, Silverberg represented that title to the property would have to be transferred to a newly formed limited liability company (LLC) due to the poor credit standing of 482 Realty, but that plaintiffs would still retain the majority interest in the new LLC, with Silverberg having a small interest so as to enable him to negotiate with the foreclosing mortgagee. Plaintiffs allege being told that after three months’ worth of payments were made on a hard money loan given by Silverberg’s company, they would be able to obtain an affordable conventional refinancing loan from a banking institution. Plaintiffs allege that Kaminsky’s firm was brought in by Silverberg to act as plaintiffs’ purported counsel in the transaction. 482 Realty, by Komolafe, entered into a retainer agreement with Kaminsky’ s firm, dated April 18, 2017, which provided, in part, the following: “We agree to assist and represent you in settling the mortgage default and resolve a payoff of the loan amount, which will result in discontinuance of the foreclosure, but not to appear in the foreclosure case and litigate the foreclosure defense. *** “Client waives attorney client confidentiality with regard to the proposed new lender and the mortgage broker, and client wants David A. Kaminsky & Associates, P.C. to communicate with them jointly in email threats, and that client waives any conflict of interest in David A. Kaminsky & Associates, P.C. representing her, and client understands that David A. Kaminsky & Associates, P.C. have in the past and continue to represent Evan Silverberg in separate unrelated matters, and he is a principal and/or participant in the new loan being arranged to payoff Client’s existing lender.” On June 8, 2017, plaintiffs entered into a ‘joint venture” with an “option agreement” (as alleged in the complaint) with the newly formed company, SME, whereby the existing mortgage in foreclosure was satisfied. The transaction included a Contract of Sale between 482 Realty and SME, a Bargain and Sale Deed conveying the property from 482 Realty to SME, an Operating Agreement for SME establishing a 90% interest in defendant 482 Tompkins Capital LLC (482 Capital) and a 10% interest in 482 Realty, and an Option Agreement giving 482 Realty the option of purchasing all membership interests held by 482 Capital in SME for an exercise price of $2,150,000.00. The option would be available to 482 Realty so long as monthly payments of $25,083.33 were remitted to 482 Capital. The option was available to 482 Realty from the date of the Option Agreement (June 8, 2017) through June 8, 2018 or the date of an option payment default as defined in the Option Agreement. The aforementioned documents were signed by Komolafe on behalf of 482 Realty as managing member. Also executed at the closing was a stipulation of discontinuance of the foreclosure action with prejudice by the foreclosing plaintiffs attorney and 482 Realty’s foreclosure action counsel. The deed conveying the property from 482 Realty to SME, dated June 8, 2017, was recorded on June 30, 2017. A satisfaction of the mortgage encumbering the property, dated June 8, 2017, was recorded on June 30, 2017. Plaintiffs allege that following the closing, Komolafe was made managing agent to operate and maintain the building and to collect rents, which would be deposited into a joint account with Silverberg to be used toward the monthly payments of $25,083.33, with plaintiffs making up any balance from their own income. Plaintiffs allege that disputes thereafter arose over payment of taxes and other financial issues, and that they were not given access to SME’s bank account and could not substantiate any balance which may be owed on top of the rental income collected. Plaintiffs maintain that when they attempted in January 2018 to make the monthly payment plus additional monies towards the taxes, the payments were rejected and plaintiffs were held in default. After issuing a notice of default, dated January 2018, 482 Capital terminated 482 Realty’s option to purchase its membership interest in SME.”

“In their complaint, filed on June 6, 2018, plaintiffs set forth causes of action for a declaration of rights under Real Property Actions and Proceedings Law [RP APL] article 15 (first), equitable mortgage under Real Property Law [RPL] § 320 (second), fraud in the factum (third), fraudulent inducement (fourth), constructive trust (fifth), civil conspiracy to commit fraud (sixth), specific performance (seventh), breach of contract/anticipatory breach of contract (eighth) and legal malpractice (ninth). Following the commencement of this action, motions were brought by USC, Silverberg and Kaminsky for dismissal of the complaint under CPLR 3211. By order dated February 20, 2019 (Hon. Sylvia Ash, J.), the court denied USC’s motion without prejudice, granted Silverberg’s motion “as to his personal capacity,” denied Kaminsky’s motion “without prejudice as to fraud and conspiracy” and granted Kaminsky’s motion as to “all other causes of action.” Discovery proceeded in this matter, including the examinations before trial (EBTs) of Kaminsky, Silverberg, Emeli and Komolafe. A Note of Issue indicating that discovery was complete was filed on April 9, 2024. Kaminsky brought the instant motion for summary judgment on June 7, 2024.”

“In support of his motion for summary judgment, Kaminsky submits, among other proof, a copy of the retainer agreement stating that his representation was limited to settling the mortgage default and resolving a payoff of the loan amount, copies of the June 8, 2017 closing documents executed by Komolafe on behalf of 482 Realty, including the Contract of Sale, deed, Operating Agreement of SME setting forth, inter alia, the 10% interest of 482 Realty and 90% interest of 482 Capital, the Option Agreement setting forth the monthly payment requirements of 482 Realty with the Option to purchase all interest of SME, and Kaminsky’s own EBT testimony.”

“The proof submitted demonstrates that Kaminsky made no misrepresentations regarding the nature and effect of Komolafe’s execution of the documents at the June 8, 2017 closing, that no questions or reservations were made by Komolafe regarding the documents she signed, or that Kaminsky was privy to any alleged representations made by Silverberg regarding the transaction, or any extrinsic promise Silverberg may have made regarding the joint venture. Accordingly, Kaminsky established prima facie entitlement to summary judgment dismissing plaintiffs’ claims of fraud in the factum, fraudulent inducement, and conspiracy to commit fraud.”

Springs v L&D Law P.C. 2025 NY Slip Op 00032 Decided on January 02, 2025
Appellate Division, First Department discusses the “judgment rule” and how it should be applied in a legal malpractice setting.

“Plaintiff, a former New York City firefighter, first retained defendant Liggieri to represent him in a 2017 discrimination action in the Southern District of New York against the City of New York, the FDNY Commissioner and four individual firefighters (the 2017 Action). Plaintiff claimed that he was retaliated against for filing an Equal Employment Opportunity Commission (EEOC) complaint against the FDNY and was subjected to a hostile work environment. Plaintiff was permitted to sever his claims against the individual firefighters and bring them in state court. The remaining claims against the City defendants went to trial and the jury found in favor of defendants.

Thereafter, plaintiff was assigned to a new firehouse. In 2019, plaintiff retained Liggieri again, who filed a new and separate lawsuit on plaintiff’s behalf in the Southern District of New York against the City of New York, the FDNY Commissioner and two individual firefighters from his new firehouse (the 2019 Action). In the 2019 Action, plaintiff brought claims for discrimination, retaliation and a hostile work environment in violation of federal, state and city law. The 2019 Action is the subject of this legal malpractice litigation.

Defendants moved to dismiss the 2019 Action on the ground that plaintiff failed to allege that there was a causal connection between the protected activity, namely the filing of his EEOC complaint and the 2017 Action, and the adverse employment actions he suffered. After consulting with plaintiff, Liggieri made a tactical decision to amend plaintiff’s complaint in an attempt to moot the motion to dismiss, rather than to oppose the motion on its merits. The 2019 action was ultimately dismissed. In relevant part, the court found that plaintiff failed to make out a claim for retaliation because the amended complaint did not state that “Defendant X committed Act Y in retaliation for [plaintiff] filing an EEOC complaint or the 2017 [Action]).”

Following the dismissal of the 2019 Action, plaintiff requested that Liggieri file a motion for reargument and inquired about the possibility of appealing the decision. Although Liggieri initially agreed with plaintiff that a motion for reargument could be worth pursuing, he later claimed, after additional research, that a motion for reargument was not viable. With regards to the possibility of appealing the decision, Liggieri told plaintiff that “this case is over and there’s nothing we can do.”

In 2023, plaintiff commenced this action for legal malpractice against Liggieri and his firm. Plaintiff claimed that defendants failed to properly amend the complaint in the 2019 Action to state a causal connection between the filing of his EEOC complaint and [*2]the 2017 action and the adverse employment actions he suffered. Plaintiff further claimed that defendants committed additional acts of legal malpractice by failing to move for reargument and failing to apprise him of his rights to appeal the 2019 Action.

Supreme Court properly denied defendants’ motion to dismiss and granted plaintiff’s cross-motion to amend the complaint. “To establish a cause of action for legal malpractice, plaintiff must show that: (i) the attorney was negligent; (ii) the attorney’s negligence was a proximate cause of plaintiff’s losses; and (iii) plaintiff suffered actual damages” (RTW Retailwinds, Inc. v Colucci & Umans, 213 AD3d 509, 510 [1st Dept 2023]). Plaintiff has sufficiently alleged that defendants were negligent in failing to amend the complaint to state that a causal relationship existed between plaintiff’s filing of the EEOC complaint and the 2017 Action and the adverse treatment he suffered. Plaintiff has also sufficiently alleged that, but for defendants’ failure to properly assert his claim, it would not have been dismissed on the ground that he failed to allege a causal connection between the protected activity and the adverse employment action.

Supreme Court correctly declined to find that the professional judgment rule protected defendants from liability. Pursuant to the professional judgment rule, an attorney’s “selection of one among several reasonable courses of action does not constitute malpractice” (Rosner v Paley, 65 NY2d 736, 738 [1985]). Defendants maintain that their decision to amend the complaint in an attempt to moot the 2019 motion to dismiss instead of opposing the motion on its merits was a reasonable strategic choice that is protected by the professional judgment rule. However, plaintiff’s allegations are that defendants failed to submit a memorandum of law in opposition to the motion to dismiss and instead filed a deficient amended complaint that failed to state that there was a causal connection between plaintiff’s decision to file an EEOC complaint and the 2017 Action and the adverse treatment he suffered. At this juncture, the professional judgment rule is not available as a defense because the record does not allow us to make a determination that defendants’ course of conduct was reasonable as a matter of law (see Escape Airports [USA], Inc. v Kent, Beatty & Gordon, LLP, 79 AD3d 437, 439 [1st Dept 2010]). Absent a finding that the attorney’s courses of conduct were reasonable as a matter of a law, a determination that a course of conduct constitutes malpractice requires findings of fact (see Bernstein v Oppenheim & Co., 160 AD2d 428, 430 [1st Dept 1990]).”

Chang v Yi Lin 2024 NY Slip Op 33338(U) September 20, 2024 Supreme Court, New York County Docket Number: Index No. 161222/2023 Judge: Mary V. Rosado documents what is a not unusual situation. In a divorce setting, one of the parties often think that a single attorney is representing them as well as their spouse. While it is sometimes true that the attorney is representing both, it is often a mistake made by the less monied spouse. Here, the wife’s unilateral belief that the attorney represented her as well was rejected by the Court.

“This is a legal malpractice action. Plaintiff alleges Defendant represented her and her former husband in various real estate, immigration, and business-related matters (see NYSCEF Doc. 1 at ,i 3). Plaintiff alleges Defendant represented her former husband in a divorce proceeding (id. at ,i 15). Plaintiff further alleges that she consulted with Defendant prior to the divorce proceeding about her desire to divorce her husband. During the divorce proceeding, she believed Defendant was representing both her and her husband (id. at ,i 16). Plaintiff was allegedly never told she should seek independent counsel (id. at ,i 19). Allegedly, it was only after consulting with a separate attorney that Plaintiff learned Defendant made numerous misrepresentations to Plaintiff during the divorce proceedings, and here were assets omitted from the parties’ divorce agreement (id. at ,r,r 44-45). Plaintiff also alleges that pursuant to a 2020 telephone call from Defendant, she learned her name was not taken off certain marital liabilities.”

“A defendant who moves to dismiss based on the statute of limitations bears the initial burden of proving that the time to sue has expired (Lebedev v Blavatnik, 144 AD3d 24 [1st Dept 2022]). CPLR § 214(6) provides for a three-year period of limitations for legal malpractice claims. As held by the Court of Appeals, most legal malpractice claims accrue from the day an actionable injury occurs, even if the aggrieved party is ignorant of the wrong (McCoy v Feinman, 99 NY2d 295 [2002]; see also Flintlock Const. Servs., LLC v Rubin, Fiorella & Friedman, LLP, 188 AD3d 530 [1st Dept 2020]). Here, the alleged wrongs occurred during a divorce proceeding which was concluded in 2015 (see Zorn v Gilbert, 8 NY3d 933 [2007] [malpractice claim accrued, at the latest, when a judgment of divorce was entered in the underlying action]). The Complaint was not filed until November 15, 2023. Therefore, the claims related to the divorce are untimely. Although Plaintiff is correct the continuous representation doctrine tolls the statute of limitations, this doctrine is only applicable where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim (McCoy, supra at 306). Here, there are no facts alleging any representation as to the divorce proceedings after 2015, aside from an isolated telephone call in 2020. However, it is only alleged that on the November 2020 telephone call, Defendant called Plaintiff to have Plaintiffs name removed from an SBA loan and the deeds and mortgage for various properties in Pennsylvania. This telephone call, which is the only timely legal interaction between Plaintiff and Defendant, is by itself insufficient to state a legal malpractice claim. This isolated phone call does not constitute a “mutual understanding” to invoke the continuous representation doctrine, especially where the documentary evidence in the form of Court filings specifically state that Defendant was only representing Plaintiffs former husband in the proceedings (see also Farina v Katsandonis, P. C., 197 AD3d 1033 [1st Dept 2021] [“Plaintiff failed to allege sufficient facts showing there was a mutual understanding of the need for further representation”]). Simply, there is no clear indicia of an ongoing, continuous, and dependent relationship between the client and attorney related to the divorce proceeding. There is only a conclusory and self-serving affidavit of Plaintiff which fails to list any conversations or ongoing legal work between Plaintiff and Defendant after the divorce proceeding and prior to the November 2020 telephone related to the underlying divorce proceeding (see NYSCEF Doc. 13). Therefore, the legal malpractice cause of action predicated on Defendant’s alleged representation of Plaintiff in her divorce proceeding is dismissed as time barred. While the Court does not condone Defendant’s actions in representing Plaintiffs former husband in a divorce proceeding despite what appears to be a conflict of interest, the Court cannot toll the statute of limitations given the facts and allegations pled.”

Lee v Leeds, Morelli & Brown, P.C. 2024 NY Slip Op 06624 Decided on December 24, 2024 Appellate Division, Second Department is another case against the law firm of Leeds, Morelli & Brown, P.C., which developed a method of suing large companies on behalf of their employees, which drew at least two legal malpractice cases against it. In this case, as in Dowe v. Prudential Financial, Inc. and Leeds Morelli & Brown, the claims were for legal malpractice against the lawyers.

“In a putative class action, inter alia, to recover damages for legal malpractice and fraud, the plaintiff Cheryl Lee and purportedly Charles Roe appeal from an order of the Supreme Court, Kings County (Ingrid Joseph, J.), dated September 30, 2020. The order, insofar as appealed from, upon reargument, adhered to a prior determination in an order of the same court dated January 8, 2020, granting those branches of the motion of the defendants Leeds, Morelli & Brown, P.C., Leeds Morelli & Brown, LLP, Leeds, Morelli & Brown, Lenard Leeds, Steven A. Morelli, Jeffrey K. Brown, James Vagnini, Frederick David Ostrove, and Robert John Valli, Jr., which were pursuant to CPLR 3211(a) to dismiss the first, third, and sixth causes of action and denying, as academic, a cross-motion to substitute the administrator of the estate of Charles Roe as a plaintiff in place of Charles Roe.”

“On March 23, 2005, Lee and Roe commenced this action, individually and purportedly on behalf of class members similarly situated, against LMB, Leeds, Morelli & Brown, P.C., Leeds Morelli & Brown, LLP, six of LMB’s attorneys (hereinafter collectively the LMB defendants), and Bear Stearns, among others. The complaint alleged that LMB secretly entered into an agreement with Bear Stearns to resolve alleged employment discrimination claims through a global settlement process that would cap recovery by employees and protect Bear Stearns from negative publicity and liability for a number of employment discrimination claims, including claims of retaliation against employees who pursued employment discrimination claims against Bear Stearns. The complaint further alleged that, upon reaching such an agreement with Bear Stearns for a large payment to LMB, LMB recruited Lee, Roe, and other employees with valid employment discrimination claims, falsely agreeing to litigate the employment discrimination claims, and steered Lee, Roe, and the other employees into the global settlement process where they were advised to waive judicial and administrative remedies for a settlement amount that ultimately was very small. The first, third, and sixth causes of action sought to recover damages for breach of fiduciary duty, fraud, and legal malpractice, respectively, against the LMB defendants.

During the pendency of the action, Roe died. On February 14, 2018, Deborah Roe (hereinafter the administrator) obtained letters of administration to administer Roe’s estate.

Thereafter, the LMB defendants and Bear Stearns separately moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them. Lee, and purportedly Roe, cross-moved to substitute the administrator as a plaintiff in place of Roe. In an order dated January 8, 2020, the Supreme Court granted the motions of the LMB defendants and Bear Stearns, and denied, as academic, the cross-motion.

Lee, and purportedly Roe, moved, among other things, for leave to reargue the opposition to those branches of the LMB defendants’ motion which were pursuant to CPLR 3211(a) to dismiss the first, third, and sixth causes of action and the cross-motion. In an order dated September 30, 2020, the Supreme Court, inter alia, upon reargument, adhered to its prior determination granting those branches of the LMB defendants’ motion and denying the cross-motion. Lee, and purportedly Roe, appeal.

“The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015 (a)[, and] any determination rendered without such substitution will generally be deemed a nullity” (Singer v Riskin, 32 AD3d 839, 839-840 [citations omitted]; see Hemmings v Rolling Frito-Lay Sales, LP, 220 AD3d 754, 757; Vicari v Kleinwaks, 157 AD3d 975, 976). Here, the Supreme Court erred in considering the separate motions of the LMB defendants and Bear Stearns pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them because the motions were made after Roe’s death and prior to any substitution of a personal representative of his estate (see id. § 1015; Matter of Einstoss, 26 NY2d 181; Neuman v Neumann, 85 AD3d 1138, 1139; Manto v Cerbone, 71 AD3d 1099, 1100). Accordingly, so much of the order dated January 8, 2020, as granted the separate motions of the LMB defendants and Bear Stearns pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them must be vacated as a nullity (see CPLR 1015; Matter of Einstoss, 26 NY2d 181; Neuman v Neumann, 85 AD3d 1138), and the appeal taken by the plaintiff Cheryl Lee from so much of the order dated September 30, 2020, as, upon reargument, adhered to the determination in the order dated January 8, 2020, granting those branches of the LMB defendants’ motion which were pursuant to CPLR 3211(a) to dismiss the first, third, and sixth causes of action must be dismissed.

Furthermore, the death of a party also terminates an attorney’s authority to act on behalf of the deceased party (see Vicari v Kleinwaks, 157 AD3d at 976; Vapnersh v Tabak, 131 AD3d 472, 474; Lewis v Kessler, 12 AD3d 421, 422). Thus, Roe’s former attorneys lacked the authority to file either the cross-motion or this appeal on his behalf. Accordingly the appeal purportedly taken on Roe’s behalf must be dismissed (see Vicari v Kleinwaks, 157 AD3d 975).”

“Moreover, Lee established potential merit to the action sufficient to warrant substitution. In this respect, and contrary to the LMB defendants’ contention, the legal malpractice cause of action was not time-barred. A cause of action to recover damages for legal malpractice must be commenced within three years from the time of accrual (see CPLR 203[a]; 214[6]). “A legal malpractice claim accrues when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court” (McCoy v Feinman, 99 NY2d 295, 301 [internal quotation marks omitted]). Here, the legal malpractice claims accrued, at the latest, on March 6, 2002, and March 7, 2002, when Lee and Roe, respectively, executed agreements to settle their employment discrimination claims and release Bear Stearns for specified amounts (see Zorn v Gilbert, 8 NY3d 933, 934; Amodeo v Kolodny, P.C., 35 AD3d 773, 774). Pursuant to the doctrine of continuous representation, the statute of limitations is tolled for the period following the alleged malpractice until the attorney’s ongoing representation of the client on the particular matter is completed (see Grace v Law, 24 NY3d 203, 212; Shumsky v Eisenstein, 96 NY2d 164, 167-168; Farage v Ehrenberg, 124 AD3d 159, 164). Here, Lee established that LMB’s representation on the employment discrimination claims continued at least through March 29, 2002 (see Zorn v Gilbert, 8 NY3d at 934; Shumsky v Eisenstein, 96 NY2d at 170-171; Amodeo v Kolodny, P.C., 35 AD3d at 774; see also Grace v Law, 24 NY3d at 212). The legal malpractice cause of action, therefore, was not time-barred.

Since the action has potential merit, and in light of the strong public policy favoring the resolution of actions on the merits and the lack of any prejudice to the defendants, the cross-motion to substitute the administrator of the estate of Charles Roe as a plaintiff in place of Charles Roe should have been granted (see Hemmings v Rolling Frito-Lay Sales, LP, 220 AD3d at 757; Petion v New York City Health & Hosps. Corp., 175 AD3d at 520; Tokar v Weissberg, 163 AD3d at 1033; Reed v Grossi, 59 AD3d at 511).”

Lower courts are more likely to dismiss legal malpractice cases on the statute of limitations than are Appellate courts. Dellwood Dev., Ltd. v Coffinas Law Firm, PLLC
2024 NY Slip Op 06184 Decided on December 11, 2024 Appellate Division, Second Department is such an example.

“The plaintiffs commenced this action against the defendants Coffinas Law Firm, PLLC, and George Coffinas (hereinafter together the defendants), and another defendant, inter alia, to recover damages for legal malpractice arising out of the defendants’ representation of the plaintiffs in connection with the purchase of the plaintiff Dellwood Development, Ltd. (hereinafter Dellwood), by the plaintiff Demetrios Delengos and the litigation that resulted from that purchase. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them. In an order dated July 5, 2022, the Supreme Court, among other things, granted those branches of the motion which were to dismiss the first, second, third, and fifth causes of action insofar as asserted against the defendants as time-barred. The court denied that branch of the motion which was to dismiss the seventh cause of action insofar as asserted against the defendants. The plaintiffs appeal, and the defendants cross-appeal.

“In moving to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, the moving defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable” (Fraumeni v Law Firm of Jonathan D’Agostino, P.C., 215 AD3d 803, 804 [internal quotation marks omitted]).”

“Here, the Supreme Court erred in directing dismissal of the first, second, third, and fifth causes of action insofar as asserted against the defendants as time-barred. The defendants established, prima facie, that these causes of action alleging legal malpractice were time-barred, as they accrued more than three years before the plaintiffs commenced this action (see CPLR 214[6]). However, in opposition, the plaintiffs raised questions of fact as to whether the continuous representation doctrine tolled the applicable statute of limitations. In the complaint, the plaintiffs alleged, in effect, that the defendants’ initial malpractice occurred during their representation of the plaintiffs during Delengos’s purchase of Dellwood, that the defendants continued to represent the plaintiffs in the subsequent actions spurred by the purchase agreement and the initial malpractice, and that the defendants were also negligent in defending the plaintiffs in those subsequent actions. The record demonstrates that the defendants’ representation of the plaintiffs in the actions related to the purchase agreement did not end until, at the earliest, April 2017, when the defendants filed a notice of appeal on behalf of Dellwood in one of those actions. Therefore, there are questions of fact as to whether the defendants’ representation of the plaintiffs until April 2017 was an ongoing, continuous, developing, and dependent relationship between the clients and the attorney, such that the plaintiffs could not be expected to commence an action to recover damages for legal malpractice against the defendants with respect to the purchase agreement and subsequent litigation while the defendants continued to defend them in pending litigation (see Tulino v Hiller, P.C., 202 AD3d 1132, 1135; Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d 788, 790).”

Every once in a while the ghost of McCoy v. Feinman, 99 N.Y.2d 295, 304 (2002) comes floating into view, (with apology for the mixed metaphor). The importance of this case is as an alternative theory for when the statute of limitations commences to run. Its application is seen in a passing comment in Lambro Indus., Inc. v Gilbert 2024 NY Slip Op 06189 Decided on December 11, 2024 Appellate Division, Second Department. McCoy’s importance is whether there is (ever) a “discovery” onset of the statute of limitations or whether the statute commences (always) when the client “sustained an actionable injury and the cause of action therefore accrued”, or as more neatly put, on the date the attorney made the mistake. McCoy describes a situation where the statute accrues only when the alleged damages are sufficiently calculable to permit them to obtain prompt judicial redress. Obviously, that will be later than the date the attorney made the mistake.

From McCoy: “An action to recover damages arising from an attorney’s malpractice must be commenced within three years from accrual (see CPLR 214 [6]). A legal malpractice claim accrues “when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court” (Ackerman v Price Waterhouse, 84 N.Y.2d 535, 541, 620 N.Y.S.2d 318, 644 N.E.2d 1009 [1994]). In most cases, this accrual time is measured from the day an actionable injury occurs, “even if the aggrieved party is then ignorant of the wrong or injury” (id.). “What is important is when the malpractice was committed, not when the client discovered it” (Shumsky, 96 N.Y.2d at 166; Glamm v Allen, 57 NY2d 87, 95, 439 N.E.2d 390, 453 N.Y.S.2d 674 [1982]). 2 Though we have recognized tolls on this three-year limitations period under the continuous representation doctrine (see Shumsky at 167-168), we have recognized no exception to measuring the accrual date from the date of injury caused by an attorney’s malpractice. Thus, the key issue on this appeal is when plaintiff’s actionable injury occurred.”

From Lambro: “In March 2019, the plaintiffs, two related corporations, entered into an employment agreement (hereinafter the agreement) with Shivraj Anand, who was then serving as their president and chief executive officer. The agreement contained a provision entitling Anand to certain compensation upon the termination of his employment, which occurred in December 2020. In June 2021, Anand filed a demand for arbitration, alleging that the plaintiffs breached the posttermination compensation provision in the agreement. Shortly thereafter, the plaintiffs commenced an action in the Supreme Court, inter alia, for a judgment declaring that the agreement is void. In an order dated January 25, 2022, the court, among other things, after concluding that an arbitrator should determine the validity of the agreement, stayed the action and directed the parties to proceed to arbitration.

On January 31, 2023, the plaintiffs commenced this action ostensibly to recover damages for breach of fiduciary duty against the defendants, a law firm and its principal attorney. In the complaint, the plaintiffs alleged that the defendants drafted the agreement while improperly representing both them and Anand in relation thereto. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint. In an order dated December 6, 2023, the Supreme Court granted the motion. The plaintiffs appeal.”

“Here, contrary to the plaintiffs’ contention, the Supreme Court properly determined that the sole cause of action—whether viewed as seeking damages for breach of fiduciary duty or legal malpractice—was time-barred (see Oliveto Holdings, Inc. v Denis W. Light, PLLC, 137 AD3d 1095, 1095). The plaintiffs sustained an actionable injury, and the cause of action therefore accrued, when the agreement allegedly drafted by the defendants was executed in March 2019 (see Ackerman v Price Waterhouse, 84 NY2d 535, 541-543; Landow v Snow Becker Krauss, P.C., 111 AD3d 795, 795-797; Iser v Kerrigan, 37 AD3d 662, 663). Contrary to the plaintiffs’ contention, their alleged damages were “sufficiently calculable” at that time “to permit [them] to obtain prompt judicial redress” (McCoy v Feinman, 99 NY2d at 305). Under the circumstances presented, the subsequent legal proceedings between the plaintiffs and Anand concerning the validity of the agreement did not affect whether the cause of action accrued at the time the agreement was executed (see DeStaso v Condon Resnick, LLP, 90 AD3d 809, 810-811; McCormick v Favreau, 82 AD3d 1537, 1538-1539; Byron Chem. Co., Inc. v Groman, 61 AD3d 909, 910).

In opposition to the defendants’ prima facie showing that the complaint was time-barred, the plaintiffs failed to raise a question of fact. Contrary to the plaintiffs’ assertion, they did not demonstrate that the continuous representation doctrine tolled the statute of limitations (see McCoy v Feinman, 99 NY2d at 305-306; Landow v Snow Becker Krauss, P.C., 111 AD3d at 797; cf. DeStaso v Condon Resnick, LLP, 90 AD3d at 812-813). Further, to the extent the plaintiffs [*3]contend, in effect, that the doctrine of equitable estoppel applied because the defendants actively concealed the existence of the agreement, the plaintiffs failed to establish that they commenced the action within a reasonable time after learning of the agreement (see Simcuski v Saeli, 44 NY2d 442, 449-450; Bevinetto v Steven Plotnick, M.D., P.C., 51 AD3d 612, 614; Marincovich v Dunes Hotels & Casinos, Inc., 41 AD3d 1006, 1010).”

Kleinberg, Kaplan, Wolff & Cohen, P.C. v Ria R Squared, Inc. 2024 NY Slip Op 34315(U) December 6, 2024 Supreme Court, New York County Docket Number: Index No. 152115/2023 Judge: Emily Morales-Minerva is an attorney fee case against a former client. Question: where may the president of the former client be deposed in this fee-malpractice case? Answer: NYC.

“In this breach of contract action to recover unpaid legal fees, plaintiff KLEINBERG, KAPLAN, WOLFF & COHEN, P.C. moves (motion sequence 007), pursuant to CPLR § 3110, for an order (1) compelling David Kang, the President, and Chief Executive Officer (CEO), of defendant RIA R SQUARED, INC., to appear in New York County for an in-person deposition, and (2) staying discovery pending decision on this motion.”

“For the reasons set forth below, the court grants plaintiff’s motion (seq. no. 007) to the extent that it seeks to compel deposition testimony in New York, New York, and the court denies the motion to the extent that it seeks a stay of discovery pending a decision on this motion.”

“Plaintiff served a Notice of Deposition on defendant, wherein plaintiff demanded to depose defendant’s President and Chief Executive Officer (CEO), David Kang, in New York County, on May 30, 2023 (see NYSCEF Doc. No. 105, Notice of Deposition). Defendant then informed plaintiff that said officer was not available on the proposed date, and that it would be in touch regarding future availability (see NYSCEF Doc. No. 106, E-mail Exchange). Thereafter, on June 26, 2024, the parties met and conferred to discuss outstanding discovery issues, including David Kang’s deposition (see id.). In that meeting, defendant asserted that the deposition of its president and CEO needed to be held “in Los Angeles, California [in-person], or remotely” (see id.)”

“Rule 3110 of the CPLR governs where a deposition on notice is to be taken within the State of New York. It is, therefore, black letter law, that “when [as here] the person to be examined is an officer, director, member or employee of a party,” a deposition on notice “shall” be taken “within the county [a] in which he resides or has an office for the regular transaction of business in person or [b] where the action is pending” ( CPLR 311 o [ 1] [emphasis added] ) .

“The parties may stipulate that a deposition [otherwise] be taken by telephone or other remote electronic means and that a party may participate electronically. [However, t]he stipulation shall designate reasonable provisions to ensure that an accurate record of the deposition is generated; shall specify, if appropriate, reasonable provisions for the use of exhibits at the deposition; shall specify who must and who may physically be present at the deposition; and shall provide for any other provisions appropriate under the circumstances. Unless otherwise stipulated to by the parties, the officer administering the oath shall be physically present at the place of deposition and the additional costs of conducting the deposition by telephonic or other remote means, such as telephone charges, shall be borne by the party requesting that the deposition be conducted by such means.” (CPLR 3113 (d] emphasis added])

“Absent [as here] a stipulation between the parties to conduct a deposition remotely, a party seeking the remote deposition must demonstrate that the party would encounter undue hardship from submitting to an in-person deposition in New York State” (Rubin v Sabharwal, 70 Misc3d 1216[A] [Sup Ct, NY Cnty 2021] [emphasis added] citing Rogovin v Rogovin, 3 AD3d 352 [1st Dept 2004]; see Yu Hui Chen v Chen Li Zhi, 81 AD3d 818 [2d Dept 2011]; V.M. v M.M., 74 Misc3d 1205 [A] [Sup Ct, Kings Cnty 2022] citing Chen, 81 AD3d at 818]). Here having conceded that it “is headquartered and regularly conducts business in New York County” (NYSCEF Doc. No. 40, NYSCEF Doc. No. 40, Answer with Counterclaims, p 5) defendant fails to demonstrate undue hardship from its president and CEO submitting to an in-person deposition in New York, New York.”