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.”

The claims in the complaint are striking. Claims that a 90-year old was pushed into a guardianship, was wrested from her home of 70 years, was defamed and was the recipient of extreme emotional distress did not state a cause of action for violation of Judiciary Law 487.

in Kohler v West End 84 Units LLC 2024 NY Slip Op 34215(U) November 26, 2024 Supreme Court, New York County Docket Number: Index No. 654985/2023 Judge: Lyle E. Frank, the Judiciary Law 487 claim was dismissed as not egregious enough and not delinquent enough. This relief is not lightly given.

“Ms. Paulette Kohler (“Kohler”) has lived in one of the West End 84 Units LLC (“Landlord”) rent-controlled apartments for over seventy years. Ms. Kohler is currently 94 years old, widowed, and her only child died in 2020. In 2011, she met a Norwegian woman named Kjersti Inga Eggerud (“Eggerud”, collectively with Kohler “Plaintiffs”). The two women became friends, and on March 21, 2021, Ms. Kohler executed a Durable Power of Attorney, Health Care Proxy, and a Last Will & Testament that appointed Eggerud as her agent and sole beneficiary. These documents were executed by an attorney who had known Ms. Kohler for decades and they were duly witnessed and executed after it was confirmed that Ms. Kohler had the requisite mental capacity. The FBI Enters the Scene According to documents presented by Plaintiff, in June of 2021 an unknown person(s) contacted the FBI and alleged that Eggerud had engaged in elder abuse of Ms. Kohler. The FBI, according to these documents, conducted an initial assessment and attempted repeatedly to reach out to Ms. Kohler but she would not discuss the matter. In October, they called Eggerud and informed her of the report. Allegedly, on November 14 an FBI agent called Eggerud and informed her that the matter was closed and that there was no evidence against her. Then in December of 2021, the FBI closed the “Incident” and gave as a reason that the “[a]llegation could not be substantiated or is deemed mitigated at this time.” There are several issues of disputed fact as to whether the FBI ever sent an agent to Ms. Kohler’s apartment, what was said and done at such a meeting if it happened, and the extent to which the FBI communicated with various parties during this process. The Article 81 Guardianship Proceeding and Ultimate Reversal In late December 2021, Mrs. Kohler, who had just had surgery for an intestinal blockage, was transferred to the Riverside rehabilitation center for short term rehabilitation for recovery. Beginning in January of 2022, when Eggerud began attempting to enter Ms. Kohler’s apartment to prepare it for her release from Riverside, Landlord ( and others) refused Eggerud access to the apartment and declined to honor the power of attorney. The parties went back and forth on the matter, and in March of 2022 defendant Elizabeth Adinolfi (“Adinolfi”), a guardianship attorney employed by defendant Phillips Nizer LLP (“PN”, collectively with Adinolfi the “PNDefendants”), filed an Article 81 petition to appoint a Guardian over Ms. Kohler (the “Guardianship Proceeding”). The PN-Defendants were counsel for the Landlord, and Adinolfi claimed during the special proceeding that it was at least in part motivated by threats to file suit by Eggerud’ s counsel if the POA was not honored by Landlord. At this proceeding, Adinolfi also alleged, among other things, that Ms. Kohler lacked capacity at the time that she executed the POA and that Eggerud was under investigation from the FBI. In March the trial court granted the petition and appointed a temporary guardian over Mrs. Kohler, defendant Charles Barbuti (“Barbuti”). This decision was appealed, and the First Department overturned the decision in an order dated November 21, 2023 (the “Appeal Order”). That order reinstated the POA and health care proxy and vacated the temporary guardianship. Statement to NBC News An NBC News story about these events aired on October 14, 2022. Landlord prepared a statement for NBC (the “NBC Statement”) and made several claims about the alleged FBI investigation, Ms. Kohler’s financial affairs, and Eggerud’ s attempt to enter Ms. Kohler’s apartment with the POA. The Landlord claimed to have been motivated to initiate the guardianship proceedings “[i]n an effort to protect Mrs. Kohler” and that they were hesitant to give access to Ms. Kohler’s apartment to “someone under FBI investigation for financial abuse.” The resulting story, as well as a subsequent one on November 2, 2022, repeated allegations of possible elder abuse by Eggerud. The PN-Defendants claim to have been told by the FBI that they were “permitted to say: there are allegations that Ms. Kohler is a victim of financial fraud and that investigations are pending.” The Plaintiffs interpret this language as meaning that the PN-Defendants were not authorized to state that Eggerud was an FBI suspect in a financial fraud investigation, and the PN-Defendants interpret this language as meaning that they were permitted to state to the public that Eggerud was being investigated for elder abuse by the FBI. This Motion’s Procedural Posture Plaintiffs filed the present suit in November of 2023. They allege in the second amended complaint eighteen causes of action on behalf of Ms. Kohler and a further six on behalf of Eggerud. Broadly, the second amended complaint alleges a potential scheme to defraud Ms. Kohler of her rent-controlled apartment and various abuses of the guardianship process including alleged improper handling of Ms. Kohler’s finances during the temporary guardianship. The PNDefendants have brought the present motion to dismiss certain causes of action asserted against the PN-Defendants pursuant to the CPLR §§ 3016, 321 l(a)(l), (5), (7) and (g), as well as the N.Y. Civ. Rights Law§§ 70-A and 76-A. They have also moved for damages and sanctions against Eggerud and her counsel.”

“The PN-Defendants have moved to dismiss the tenth cause of action on the grounds that it fails to state a valid Judiciary Law Section 487 claim. More specifically, the PN-Defendants argue that the claim is based on statements made during the Guardianship Proceeding, and that those statements are covered by the litigation privilege ( as addressed above). They also argue that Plaintiffs have not pled facts that reach the requisite level of egregious misconduct required for the claim. The Judiciary Law Section 487 allows an injured party to seek treble damages in a civil action against an attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.” The PN-Defendants do not cite to any case standing for the proposition that the litigation privilege shelters attorneys from liability under Section 487 for any statement made during the course of a proceeding. 2 Indeed, statements made “with intent to deceive the court” would in almost all cases need to be made during the course of a proceeding, so it would be difficult to extend the privilege (meant to protect from defamation claims) to Section 487 and still leave Section 487 as a viable cause of action. That facts pled in support of Plaintiffs’ Section 487 claim involve statements made to the court during the course of the Guardianship Proceeding does not, on its face, defeat the claim. A Section 487 claim must involve deceitful behavior that “reaches the level of egregious conduct or a chronic and extreme pattern of behavior” by the attorney at issue. Savitt v. Greenberg Traurig, LLP, 126 A.D.3d 506, 507 (1st Dept. 2015). To survive a motion to dismiss, the plaintiff need to make this showing with more than conclusory allegations. Nehmadi v. Claude Castro & Assoc. P LLC, 204 A.D .3d 544, 544 (1st Dept. 2022). Furthermore, “[a]llegations regarding an act of deceit or intent to deceive must be stated with particularity; the claim will be dismissed if the allegations as to sci enter are conclusory and factually insufficient.” Facebook Inc., v. DLA Piper LLP (US), 134 A.D.3d 610, 615 (1st Dept. 2015). To plead a valid claim under Section 487, a plaintiff must therefore plead facts with particularity that, taken as true with every favorable inference, shows that the attorney at issue intended to deceive the court and that their deception either reached an egregious level or constituted a chronic and extreme pattern. The issue for this motion is whether the Plaintiffs have met this heavy pleading standard. Plaintiffs’ basis for the Section 487 claim is largely that the PN-Defendants “engaged in a broad overreaching scheme to improperly employ the guardianship process to oust the 94 year [] old Ms. Kohler from her rent-controlled apartment ( on behalf of her landlord client) and to protect her law firm from a lawsuit, by engaging in repeated deceit” during the Guardianship Proceeding. While Plaintiffs’ papers are filled with conclusory statements and overwrought language, there are also facts beyond mere conclusory allegations pled in support of this contention. Plaintiffs allege that the PN-Defendants knew, before filing the Article 81 Petition, that the one incident of suspected financial impropriety by Eggerud ( which had occurred several years before) had been proven to have been authorized by Ms. Kohler, but that they still represented to the court in the Guardianship proceeding that the money was gone and that there were concerns about the legitimacy of the transfer. They allege that the PN-Defendants knew that there was no official FBI investigation into Eggerud but represented that there was to the Guardianship court. They allege that the PN-Defendants represented that a guardianship was needed in part because “we have reports that the apartment is in horrible condition” when, as the First Department pointed out in their Appeal Order, it was the building staff that were uncooperative with the repair requests. The issue is that while the Plaintiffs have alleged facts that go to their Section 487 claim, what they allege has not met the requisite level of egregious or extreme conduct, at least so far as deceit upon the guardianship court is concerned. Therefore, the tenth cause of action is properly dismissed.”

Generally speaking, legal malpractice cases are styled as legal malpractice, breach of fiduciary duty and breach of contract. in Kohler v West End 84 Units LLC 2024 NY Slip Op 34215(U) November 26, 2024 Supreme Court, New York County Docket Number: Index No. 654985/2023 Judge: Lyle E. Frank, there were additionally anti-Slapp issues, defamation, fraud, abuse of process, intentional and negligent infliction of emotional distress, Judiciary Law 487, aiding and abetting false imprisonment, civil theft and conversion.

“Ms. Paulette Kohler (“Kohler”) has lived in one of the West End 84 Units LLC (“Landlord”) rent-controlled apartments for over seventy years. Ms. Kohler is currently 94 years old, widowed, and her only child died in 2020. In 2011, she met a Norwegian woman named Kjersti Inga Eggerud (“Eggerud”, collectively with Kohler “Plaintiffs”). The two women became friends, and on March 21, 2021, Ms. Kohler executed a Durable Power of Attorney, Health Care Proxy, and a Last Will & Testament that appointed Eggerud as her agent and sole beneficiary. These documents were executed by an attorney who had known Ms. Kohler for decades and they were duly witnessed and executed after it was confirmed that Ms. Kohler had the requisite mental capacity. The FBI Enters the Scene According to documents presented by Plaintiff, in June of 2021 an unknown person(s) contacted the FBI and alleged that Eggerud had engaged in elder abuse of Ms. Kohler. The FBI, according to these documents, conducted an initial assessment and attempted repeatedly to reach out to Ms. Kohler but she would not discuss the matter. In October, they called Eggerud and informed her of the report. Allegedly, on November 14 an FBI agent called Eggerud and informed her that the matter was closed and that there was no evidence against her. Then in December of 2021, the FBI closed the “Incident” and gave as a reason that the “[a]llegation could not be substantiated or is deemed mitigated at this time.” There are several issues of disputed fact as to whether the FBI ever sent an agent to Ms. Kohler’s apartment, what was said and done at such a meeting if it happened, and the extent to which the FBI communicated with various parties during this process. The Article 81 Guardianship Proceeding and Ultimate Reversal In late December 2021, Mrs. Kohler, who had just had surgery for an intestinal blockage, was transferred to the Riverside rehabilitation center for short term rehabilitation for recovery. Beginning in January of 2022, when Eggerud began attempting to enter Ms. Kohler’s apartment to prepare it for her release from Riverside, Landlord ( and others) refused Eggerud access to the apartment and declined to honor the power of attorney. The parties went back and forth on the matter, and in March of 2022 defendant Elizabeth Adinolfi (“Adinolfi”), a guardianship attorney employed by defendant Phillips Nizer LLP (“PN”, collectively with Adinolfi the “PNDefendants”), filed an Article 81 petition to appoint a Guardian over Ms. Kohler (the “Guardianship Proceeding”). The PN-Defendants were counsel for the Landlord, and Adinolfi claimed during the special proceeding that it was at least in part motivated by threats to file suit by Eggerud’ s counsel if the POA was not honored by Landlord. At this proceeding, Adinolfi also alleged, among other things, that Ms. Kohler lacked capacity at the time that she executed the POA and that Eggerud was under investigation from the FBI. In March the trial court granted the petition and appointed a temporary guardian over Mrs. Kohler, defendant Charles Barbuti (“Barbuti”). This decision was appealed, and the First Department overturned the decision in an order dated November 21, 2023 (the “Appeal Order”). That order reinstated the POA and health care proxy and vacated the temporary guardianship. Statement to NBC News An NBC News story about these events aired on October 14, 2022. Landlord prepared a statement for NBC (the “NBC Statement”) and made several claims about the alleged FBI investigation, Ms. Kohler’s financial affairs, and Eggerud’ s attempt to enter Ms. Kohler’s apartment with the POA. The Landlord claimed to have been motivated to initiate the guardianship proceedings “[i]n an effort to protect Mrs. Kohler” and that they were hesitant to give access to Ms. Kohler’s apartment to “someone under FBI investigation for financial abuse.” The resulting story, as well as a subsequent one on November 2, 2022, repeated allegations of possible elder abuse by Eggerud. The PN-Defendants claim to have been told by the FBI that they were “permitted to say: there are allegations that Ms. Kohler is a victim of financial fraud and that investigations are pending.” The Plaintiffs interpret this language as meaning that the PN-Defendants were not authorized to state that Eggerud was an FBI suspect in a financial fraud investigation, and the PN-Defendants interpret this language as meaning that they were permitted to state to the public that Eggerud was being investigated for elder abuse by the FBI. This Motion’s Procedural Posture Plaintiffs filed the present suit in November of 2023. They allege in the second amended complaint eighteen causes of action on behalf of Ms. Kohler and a further six on behalf of Eggerud. Broadly, the second amended complaint alleges a potential scheme to defraud Ms. Kohler of her rent-controlled apartment and various abuses of the guardianship process including alleged improper handling of Ms. Kohler’s finances during the temporary guardianship. The PNDefendants have brought the present motion to dismiss certain causes of action asserted against the PN-Defendants pursuant to the CPLR §§ 3016, 321 l(a)(l), (5), (7) and (g), as well as the N.Y. Civ. Rights Law§§ 70-A and 76-A. They have also moved for damages and sanctions against Eggerud and her counsel.”

“The seventeenth cause of action alleges that the PN-Defendants committed tortious interference with contract when they refused to honor the POA without cause, and by filing a guardianship proceeding in order to avoid honoring it. The PN-Defendants have moved to dismiss this claim under CPLR § 321 l(a)(7), arguing that because Eggerud did not execute an acknowledged affidavit stating that the POA was in full force, they cannot be liable for tortious interference with contract. While General Obligations Law § 5-1504 does allow for a party to request an acknowledged affidavit, there are disputed issues of fact about the Plaintiffs’ willingness and ability to offer such an affidavit and if the PN-Defendants, as Plaintiffs put it “refused to even discuss the issue.” But even more important, on this matter the PN-Defendants have failed to meet their burden on a motion to dismiss and shown that the pleadings fail to state a cause of action for tortious interference. Therefore, it would be premature to dismiss the seventeenth cause of action at this stage. VE: The PN-Defendants Have Not Met Their Burden as to the General Obligations Law Article 5, Title 15 Claim The eighteenth cause of action alleges that the PN-Defendants violated Article 5, Title 15 of the New York General Obligations Law when they refused without cause to comply with the POA. The PN-Defendants have moved to dismiss this claim under CPLR § 321 l(a)(7), arguing that Plaintiffs are required to bring this claim as a special proceeding. The relevant language of the GBL reads: “[i]fa special proceeding as authorized by section 5-1510 of this title is brought to compel the third party to honor the [POA][ … ] [s]uch special proceeding shall be the exclusive remedy for a violation of this section.” GBL § 5-1504(4)(b). Here, the Plaintiffs are not attempting to compel a party to accept the POA or to enforce one of the other actions listed in GBL § 5-1504, and therefore the limitation listed in GBL § 5-1504(4)(b) does not apply. At this stage, the PN-Defendants have not met their burden of showing that the Plaintiffs have failed to state a cause of action. VF.: The !JED Cause o{Action States a Claim but the NIED Cause o{Action Fails to Allege Required Element of the Endangerment of Personal Safety The second and third causes of action make claims for intentional and negligent infliction of emotional distress, on behalf of Ms. Kohler. The PN-Defendants move to dismiss these claims partly on the grounds that they fail to state a cause of action. The tort of intentional infliction of emotional distress has four elements, of which the first one (“extreme and outrageous conduct”) is the most difficult element to meet as a matter of law. Howell v. New York Post Co., 81 N.Y.2d 115, 121 (1993). The vast majority of IIED claims before the Court of Appeals have failed because the conduct in question must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id., at 122. The behavior by the PN-Defendants alleged here, viewed in the light most favorable to the Plaintiffs and taking facts alleged to be true, could meet this standard. Therefore, it would be improper to dismiss at this time. The PN-Defendants move to dismiss the third cause of action, arguing that it fails to state a claim because it does not adequately allege either that the PN-Defendants owed Ms. Kohler a duty or that the Guardianship Proceeding threatened Ms. Kohler’s safety. The elements of a cause of action for negligent infliction of emotional distress have been limited to ( outside of special circumstances inapplicable here) that which “at least endangered the plaintiffs physical safety or cause the plaintiff to fear for his or her own physical safety.” Taggart v. Costabile, 131 A.D.3d 243,253 (2nd Dept. 2015). Here, there have not been facts alleged that would go to the PN-Defendants endangering Ms. Kohler’s physical safety, therefore third cause of action is dismissed against the PN-Defendants.”

Typically legal malpractice claims are limited to a triumvirate which include Legal Malpractice, Breach of Fiduciary Duty and Breach of Contract. Often, the Breach of Fiduciary Duty and Breach of Contract claims are dismissed as “duplicitive” of the Legal Malpractice claim.

Kohler v West End 84 Units LLC 2024 NY Slip Op 34215(U) November 26, 2024 Supreme Court, New York County Docket Number: Index No. 654985/2023 Judge: Lyle E. Frank is a most unusual legal malpractice (along with claims against non-attorneys), where rarely made claims against the lawfirm survive a motion to dismiss.

“Ms. Paulette Kohler (“Kohler”) has lived in one of the West End 84 Units LLC (“Landlord”) rent-controlled apartments for over seventy years. Ms. Kohler is currently 94 years old, widowed, and her only child died in 2020. In 2011, she met a Norwegian woman named Kjersti Inga Eggerud (“Eggerud”, collectively with Kohler “Plaintiffs”). The two women became friends, and on March 21, 2021, Ms. Kohler executed a Durable Power of Attorney, Health Care Proxy, and a Last Will & Testament that appointed Eggerud as her agent and sole beneficiary. These documents were executed by an attorney who had known Ms. Kohler for decades and they were duly witnessed and executed after it was confirmed that Ms. Kohler had the requisite mental capacity. The FBI Enters the Scene According to documents presented by Plaintiff, in June of 2021 an unknown person(s) contacted the FBI and alleged that Eggerud had engaged in elder abuse of Ms. Kohler. The FBI, according to these documents, conducted an initial assessment and attempted repeatedly to reach out to Ms. Kohler but she would not discuss the matter. In October, they called Eggerud and informed her of the report. Allegedly, on November 14 an FBI agent called Eggerud and informed her that the matter was closed and that there was no evidence against her. Then in December of 2021, the FBI closed the “Incident” and gave as a reason that the “[a]llegation could not be substantiated or is deemed mitigated at this time.” There are several issues of disputed fact as to whether the FBI ever sent an agent to Ms. Kohler’s apartment, what was said and done at such a meeting if it happened, and the extent to which the FBI communicated with various parties during this process. The Article 81 Guardianship Proceeding and Ultimate Reversal In late December 2021, Mrs. Kohler, who had just had surgery for an intestinal blockage, was transferred to the Riverside rehabilitation center for short term rehabilitation for recovery. Beginning in January of 2022, when Eggerud began attempting to enter Ms. Kohler’s apartment to prepare it for her release from Riverside, Landlord ( and others) refused Eggerud access to the apartment and declined to honor the power of attorney. The parties went back and forth on the matter, and in March of 2022 defendant Elizabeth Adinolfi (“Adinolfi”), a guardianship attorney employed by defendant Phillips Nizer LLP (“PN”, collectively with Adinolfi the “PNDefendants”), filed an Article 81 petition to appoint a Guardian over Ms. Kohler (the “Guardianship Proceeding”). The PN-Defendants were counsel for the Landlord, and Adinolfi claimed during the special proceeding that it was at least in part motivated by threats to file suit by Eggerud’ s counsel if the POA was not honored by Landlord. At this proceeding, Adinolfi also alleged, among other things, that Ms. Kohler lacked capacity at the time that she executed the POA and that Eggerud was under investigation from the FBI. In March the trial court granted the petition and appointed a temporary guardian over Mrs. Kohler, defendant Charles Barbuti (“Barbuti”). This decision was appealed, and the First Department overturned the decision in an order dated November 21, 2023 (the “Appeal Order”). That order reinstated the POA and health care proxy and vacated the temporary guardianship. Statement to NBC News An NBC News story about these events aired on October 14, 2022. Landlord prepared a statement for NBC (the “NBC Statement”) and made several claims about the alleged FBI investigation, Ms. Kohler’s financial affairs, and Eggerud’ s attempt to enter Ms. Kohler’s apartment with the POA. The Landlord claimed to have been motivated to initiate the guardianship proceedings “[i]n an effort to protect Mrs. Kohler” and that they were hesitant to give access to Ms. Kohler’s apartment to “someone under FBI investigation for financial abuse.” The resulting story, as well as a subsequent one on November 2, 2022, repeated allegations of possible elder abuse by Eggerud. The PN-Defendants claim to have been told by the FBI that they were “permitted to say: there are allegations that Ms. Kohler is a victim of financial fraud and that investigations are pending.” The Plaintiffs interpret this language as meaning that the PN-Defendants were not authorized to state that Eggerud was an FBI suspect in a financial fraud investigation, and the PN-Defendants interpret this language as meaning that they were permitted to state to the public that Eggerud was being investigated for elder abuse by the FBI. This Motion’s Procedural Posture Plaintiffs filed the present suit in November of 2023. They allege in the second amended complaint eighteen causes of action on behalf of Ms. Kohler and a further six on behalf of Eggerud. Broadly, the second amended complaint alleges a potential scheme to defraud Ms. Kohler of her rent-controlled apartment and various abuses of the guardianship process including alleged improper handling of Ms. Kohler’s finances during the temporary guardianship. The PNDefendants have brought the present motion to dismiss certain causes of action asserted against the PN-Defendants pursuant to the CPLR §§ 3016, 321 l(a)(l), (5), (7) and (g), as well as the N.Y. Civ. Rights Law§§ 70-A and 76-A. They have also moved for damages and sanctions against Eggerud and her counsel.”

“The PN-Defendants move to dismiss the second amended complaint as to them on six grounds: 1) res judicata and collateral estoppel; 2) violation of the New York Anti-SLAPP law; 3) the litigation and fair reporting privileges; 4) failure to state a claim under CPLR §§ 3106 and 321 l(a)(7) as to the fraud and defamation claims; 5) failure to state a claim and statute of limitations as to the abuse of process claims; and finally 6) failure to state a claim as to the intentional and negligent infliction of emotional distress, Judiciary Law 487, tortious interference with contract, violation of the General Obligations Law, and aiding and abetting claims. For the reasons that follow, this motion is granted as to the third, fifth, seventh, ninth, tenth, fifteenth, sixteenth, and nineteenth causes of action and denied as to the rest. I: Res Judicata and Collateral Estoppel Do Not Bar Plaintifrs Claims In the appeal of the Guardianship Proceeding, Plaintiffs requested Rule 130 sanctions against the PN-Defendants for bringing the Guardianship Proceeding in bad faith or frivolously. The First Department in the Appeal Order declined to issue sanctions. Here, the PN-Defendants argue that this bars the underlying suit under the principle of res judicata. Their reasoning is that in that appeal, Plaintiffs made the same arguments regarding the basis used to support the Guardianship Proceeding allegations, knowledge of the FBI’ s involvement, and that the PNDefendants acted to cause harm to Ms. Kohler. By declining to issue sanctions, PN-Defendants argue, the Appeal Order bars a suit arising out of the same transactions and facts. Furthermore, they argue, here Plaintiff’s claims are barred by the principle of collateral estoppel because the Guardianship Proceeding’s factual findings and conclusions remain valid despite the Appeal Order. Plaintiffs argue that the suit is not barred by res judicata or collateral estoppel for several reasons, including that the First Department ordered fee shifting under the Mental Hygiene Law which is predicated on a finding of bad faith and that the court there only declined to issue to sanctions because it was not procedurally proper (it had not been briefed or moved for, simply asked for during oral argument), and did not reach the merits of a sanctions request. Res judicata or claim preclusion is “designed to provide finality in the resolution of disputes to assure that parties may not be vexed by further litigation.” Reilly v. Reid, 45 N.Y.2d 24, 28 (1978). It bars the re-litigation of the “same cause of action” that has had a valid and final judgment that “extinguishes the plaintiff’s claim.” Id., at 28-29. Here the PN-Defendants do not argue that Plaintiff had a claim or cause of action against them that was adjudicated in the Appeal Order, but rather that the Appeal Order, in declining to issue sanctions, made certain findings on the merit of allegations arising from the same set of circumstances. This is more properly called a collateral estoppel or issue preclusion matter, not claim preclusion. The PN-Defendants also argue that certain findings in the Guardianship Proceeding bar Plaintiffs’ current claims through collateral estoppel. This legal concept prevents the same issues, rather than causes of action, from being litigated and applied “only where the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action and the party who is being estopped had a full and fair opportunity to litigate the issue in the earlier action.” Simmons v. Trans Express Inc., 37 N.Y.3d 107, 112 (2021). The Court of Appeals has “cautioned against the mechanical application of issue preclusion” and directs courts to “examine the realities of litigation”. Id. At heart, the decision to apply collateral estoppel in a given case is whether relitigation of the issue should be allowed “in light of what are often competing policy considerations, including fairness to the parties, conservation of the resources of the court and the litigants, and the societal interests in consistent and accurate results.” Id. I(A): The Guardianship Proceeding Is Not a Basis for Collateral Estoppel and the First Department’s Appeal Order is Ambiguous as to the Extent it Estops the Plaintiffs from Asserting Improper Motive for Bringing the Guardianship Proceeding To begin with, the Guardianship Proceeding does not provide for collateral estoppel or res judicata because it was overturned on appeal. A “vacated decision accordingly lacks finality and cannot be given collateral estoppel effect.” Sage Realty Corp. v. Proskauer Rose LLP, 251 A.D .2d 3 5, 3 9 (1st Dept. 1998). The issue then becomes what, if anything, is precluded by the Appeal Order. This short decision includes language stating that there was “no evidence” that the POA was not duly executed and proper, and that there was “no evidence of financial impropriety” by Eggerud. It also, however, ends with the statement that “[a]lthough [Landlord] was ultimately unable to prove its allegations, the petition was not frivolous within the meaning of22 NYCRR § 130-1.l(c).” Matter ofGoldfein v. Kohler, 221 A.D.3d 500,502 (1st Dept. 2023). The PN-Defendants argue that this statement means that Plaintiffs are estopped from bringing the underlying suit at all because it “arises out of identical transactions and facts as those in the Guardianship Proceeding” and the suit should be dismissed in its entirety.”

“But Plaintiffs argue that there were several issues involved in the underlying suit not litigated at either the Guardianship Proceeding or the appeal of that proceeding. They also content that the part of the Appeals Order referring to frivolity merely expounds on statements made during oral argument that the First Department would not be issuing sanctions under NYCRR § 130 for bringing a frivolous suit because that issue had not been motioned for or briefed. There is an additional complication brought by the fact that the First Department also ordered fee shifting in this matter. The “underlying purpose of the fee-shifting provisions of the Mental Hygiene Law [are] to discourage frivolous petitions.” In re Petty, 256 A.D.2d 281,283 (1st Dept. 1998). In fact, it is an “improvident” exercise in discretion to order fee shifting under this provision when there is “a lack of evidence that the proceeding was brought in bad faith.” Matter of Marjorie T v. Sherwood, 84 A.D.3d 1255, 1255 (2nd Dept. 2011). Because this is a motion to dismiss brought by the PN-Defendants, the Plaintiffs are entitled to every favorable inference. At this stage of litigation, the ending statement in the Appeal Order could potentially be referring to the lack of motions or briefs relating to NYCRR § 130. There is a possible reasonable inference that the First Department had not decided on the merits regarding whether the Guardianship Proceeding was, at least to some degree, frivolously brought. It is not conclusively settled that the First Department decided on the merits that there had been no amount of bad faith connected to bringing that proceeding. Furthermore, under the balance of considerations that the Court of Appeals directs courts to consider in Simmons and given that there are allegations by Plaintiffs as to information about the role of the FBI in these matters that they have obtained after the Appeal Order was issued,the Court declines at this stage to say that the Appeal Order bars Plaintiffs from bringing their claims. Certainly, to extrapolate that sentence into an understanding that the present suit in its entirety, including as it does claims not actually litigated in the vacated Guardianship Proceeding and against parties who were not parties in that proceeding, would not be proper at this junction. Therefore, the motion to dismiss the second amended complaint on the grounds of res judicata and collateral estoppel is denied.”

We will discuss the remaining claims in the next edition.

We reported on this case when Supreme Court denied dismissal. Now the AD has affirmed in Postiglione v Sacks & Sacks, LLP 2024 NY Slip Op 06070 Decided on December 4, 2024.

“In an action to recover damages for legal malpractice, the defendants appeal from an order of the Supreme Court, Kings County (Karen B. Rothenberg, J.), dated January 19, 2022. The order, insofar as appealed from, denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the amended complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In April 2016, the plaintiff James Postiglione (hereinafter the injured plaintiff) allegedly was injured while working as an independent contractor at a site owned and maintained by the United States Government and the United States National Park Service (hereinafter NPS). Shortly thereafter, the plaintiffs retained the defendant Daniel Weir and his law firm, the defendant Sacks & Sacks, LLP, to represent them, and the defendants commenced a personal injury action in New York State Supreme Court against, among others, the City of New York, which did not own, occupy, or control the site where the accident allegedly occurred. However, the defendants did not commence an action against the United States Government.

In 2019, the plaintiffs commenced this action against the defendants to recover damages for legal malpractice. Thereafter, the plaintiffs served an amended complaint, which alleged, inter alia, that a certain NPS employee told the injured plaintiff to walk only on the concrete path where the accident allegedly occurred and that the defendants committed legal malpractice by failing to commence a lawsuit against the United States Government. The defendants moved, among other things, pursuant to CPLR 3211(a) to dismiss the amended complaint. In an order dated January 19, 2022, the Supreme Court, inter alia, denied that branch of the motion. The defendants appeal.”

“Here, accepting the facts alleged in the amended complaint as true, and according the plaintiffs the benefit of every possible favorable inference, the amended complaint sufficiently states a cause of action to recover damages for legal malpractice. Moreover, the documentary evidence submitted by the defendants in support of their motion failed to utterly refute the factual allegations in the amended complaint. Contrary to the defendants’ contentions, their evidence failed to conclusively establish that the independent contractor exception or the discretionary function exception to the FTCA’s waiver of sovereign immunity applied to bar the plaintiffs’ potential claim against the United States Government (see generally Haskin v U.S., 569 Fed Appx at 15; Andrulonis v U.S., 952 F2d 652, 655 [2d Cir]; Esgrance v United States, 2018 WL 2943222, *2, 2018 US Dist LEXIS 97911, *3-6 [SDNY, No. 17-CV-8352 (JPO)]; Lanzilotta v U.S., 1998 WL 765143, *5 [EDNY, No. 95-CV-5334 (JG)]). The defendants’ contention that the United States Government cannot be liable under the Federal Tort Claims Act for an alleged negligent misrepresentation is not properly before us, as it was raised for the first time at oral argument.”

Berger v Lewis Johs Avallone Aviles, LLP 2024 NY Slip Op 05952 Decided on November 27, 2024 Appellate Division, Second Department makes the point that it is not necessary to specifically allege that the alleged malpractice “fell within the agreed scope of defendant’s representation”, although it is necessary that the actual scope of representation encompasses the claimed negligent act.

“”To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Georgica Bldrs., Ltd. v 136 Bishops Lane, LLC, 175 AD3d 610, 611 [internal quotation marks omitted]; see Leon v Martinez, 84 NY2d 83, 87-88). Further, “[o]n a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Georgica Bldrs., Ltd. v 136 Bishops Lane, LLC, 175 AD3d at 611; see Leon v Martinez, 84 NY2d at 87).

Here, accepting the allegations in the complaint as true and according the plaintiff the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d at 87), the complaint sufficiently stated a cause of action to recover damages for legal malpractice. Contrary to Wohlgemuth’s contention, “‘a legal malpractice plaintiff need not, in order to assert a viable cause of action, specifically plead that the alleged malpractice fell within the agreed scope of the [*2]defendant’s representation'” (Shan Yun Lin v Lau, 210 AD3d 817, 818, quoting Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 39). Further, “‘a legal malpractice defendant seeking dismissal pursuant to CPLR 3211(a)(1) must tender documentary evidence conclusively establishing that the scope of its representation did not include matters relating to the alleged malpractice'” (id., quoting Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d at 39). Here, Wohlgemuth failed to submit documentary evidence sufficient to make that showing or to otherwise submit documentary evidence utterly refuting the plaintiff’s allegations or conclusively establishing a defense as a matter of law (see Ki Kuo Zhang v Lau, 210 AD3d 829, 831; Shan Yun Lin v Lau, 210 AD3d at 818).

Accordingly, the Supreme Court properly denied Wohlgemuth’s motion pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against it.”

In D’Adamo v Cohen 2024 NY Slip Op 05956 Decided on November 27, 2024
Appellate Division, Second Department a legal malpractice case was dismissed because the allegations were too “conclusory,”

“In an action, inter alia, to recover damages for legal malpractice, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Alexandra D. Murphy, J.), dated July 27, 2022. The order, insofar as appealed from, granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging legal malpractice.

ORDERED that the order is affirmed insofar as appealed from, with costs.”

“A plaintiff must plead “actual, ascertainable damages as a result of an attorney’s negligence. Mere speculation about a loss resulting from an attorney’s alleged omission is insufficient to sustain a prima facie case of legal malpractice” (Dempster v Liotti, 86 AD3d at 177 [citation, alterations, and internal quotation marks omitted]; see Philip S. Schwartzman, Inc. v Pliskin, Rubano, Baum & Vitulli, 215 AD3d 699, 703). “Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative” (Alexim Holdings, LLC v McAuliffe, 221 AD3d 641, 643 [internal quotation marks omitted]; see York v Frank, 209 AD3d 804, 807).

Here, the Supreme Court properly granted that branch of the defendants’ motion which was to dismiss the cause of action alleging legal malpractice. The plaintiffs’ claims regarding the consequences and damages flowing from the defendants’ alleged failure to request that a title company provide a title report by a certain date are conclusory and speculative (see May Dock Lane, LLC v Harras Bloom & Archer, LLP, 222 AD3d at 637; 126 Main St., LLC v Kriegsman, 218 AD3d 524, 525; Sierra Holdings, LLC v Phillips, Weiner, Quinn, Artura & Cox, 112 AD3d 909, 910).”