Although not a typical claim that the experts were badly selected, or were not competent, D’Angelo v Kujawski 2024 NY Slip Op 05200 Decided on October 23, 2024
Appellate Division, Second Department is really about experts. The case was decided on an analysis of the opposing experts in the underlying medical malpractice case.

“The plaintiff commenced this action against Mark C. Kujawski, Kujawski & Kujawski (hereinafter the Kujawski firm, and together with Mark C. Kujawski, the defendants), and another defendant to recover damages for legal malpractice. The plaintiff alleged, inter alia, that an SF-95 form prepared by the Kujawski firm on her behalf in connection with a medical malpractice action that she filed pro se in the United States District Court for the Eastern District of New York on behalf of her deceased son (hereinafter the decedent) was inadequate because the SF-95 form made no reference to medication as a contributing factor in the decedent’s death. After issue was joined in this action, the plaintiff moved for summary judgment on the issue of liability based upon the affirmation of her medical expert who opined that the decedent’s death was caused by a “narcotic-type overdose, which led to progressive respiratory depression.” The defendants cross-moved for summary judgment dismissing the amended complaint insofar as asserted against them, submitting, among other things, an affidavit and an affirmation of two physicians, both of whom examined the decedent’s medical records and reached a contrary conclusion to the plaintiff’s expert. In an order dated January 14, 2021, the Supreme Court, inter alia, granted the defendants’ cross-motion. The plaintiff appeals.

The defendants established, prima facie, that the plaintiff could not have prevailed in the underlying medical malpractice action based upon the opinions of their two experts. The defendants’ experts opined that Zofran, which was administered to the decedent before his death, did not contribute to the decedent’s death. The defendants’ experts further opined that the decedent suffered from multiple ailments, including chronic pain syndrome, spent most of his time in bed, and was on “long-term opiate therapy” for his pain condition, which rendered him highly tolerant of both fentanyl and oxycodone. One of the defendants’ experts averred that the plaintiff had been “receiving exactly the same dose and timing of both fentanyl and oxycodone that he [had been] taking outside of the hospital” for many years. The defendants’ experts further noted that the administration of Narcan when the decedent coded was not evidence that he was suffering from a drug overdose, since a patient in cardiac and/or respiratory arrest will commonly be given Narcan just in case narcotics are contributing to his or her condition as Narcan does no harm. Therefore, the defendants established, prima facie, that the plaintiff’s claims in the underlying medical malpractice action were not viable based upon proof that the decedent’s condition was not the result of an overdose of narcotic drugs.

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s expert never attempted to refute the opinion of the defendants’ experts that Zofran did not contribute to the decedent’s death. Further, the plaintiff’s expert never addressed the contention of the defendants’ experts that patients who have been prescribed opiates are given Narcan if they go into coronary pulmonary arrest just in case the opiates are contributing to the condition since Narcan does no harm. Since the plaintiff’s expert failed to address the specific assertions of the defendants’ experts, the plaintiff failed to raise a triable issue of fact as to whether the plaintiff had viable claims in the underlying medical malpractice action (see Scopelliti v Westmed Med. Group, 193 AD3d 1009, 1011).

Accordingly, since the opinion of the plaintiff’s expert that the plaintiff had a viable claim was “conclusory in nature and not supported by available facts,” and was not sufficient to rebut the defendants’ prima facie showing that the plaintiff could not have prevailed in the underlying medical malpractice action, the Supreme Court properly granted the defendants’ cross-motion for summary judgment dismissing the amended complaint insofar as asserted against them.”

We rarely see the Appellate Division, or courts in general, take up the issue of a “time sensitive” setting in determining whether an attorney departed from good practice by telling the client to get advice from an outside attorney, especially where the advice comes up in a specialized area. In Porter v Bachner, 2024 NY Slip Op 05191, Decided on October 22, 2024 Appellate Division, First Department this is one of the reasons to deny dismissal even the CPLR 3212 inflection point.

“Defendants have not established their entitlement to summary judgment, as issues of fact remain about the reasonableness of defendants’ advice to settle before discovery and accept a FINRA bar (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Bernstein v Oppenheim & Co., P.C., 160 AD2d 428, 430 [1st Dept 1990]). Although defendants’ advice would have been reasonable if the circumstances were as they described — that plaintiff admitted to fraudulently submitting personal expenses and altered receipts for reimbursement, that he was unwilling to take even a small risk of criminal prosecution, and that a FINRA bar was likely inevitable whether or not plaintiff cooperated with the investigation — plaintiff has offered conflicting evidence that calls the circumstances into question. The record shows that plaintiff was informed of and agreed to defendants’ strategy and presumably knew the truth of his own underlying conduct and his own preferences with respect to various courses of action, even if defendants misunderstood them. However, if defendants misstated the likelihood of a bar being imposed after cooperating with the FINRA investigation, then plaintiff would have been unable to appropriately assess his options, rendering his approval of defendants’ strategy meaningless.

We reject defendants’ argument that advice on the effect of a FINRA bar on plaintiff’s future employment was outside the scope of the representation. The retainer agreement broadly defined the representation as one “in connection with a FINRA investigation relating to [plaintiff’s] past employment at Goldman Sachs & Co.” Defendants could not effectively immunize themselves for failing to provide appropriate advice on a subject within the scope of the representation by referring plaintiff to another attorney with whom plaintiff never connected, especially when a draft agreement with FINRA had already been circulated and the decision whether to accept it was time-sensitive.

Issues of fact exist with respect to proximate causation, as the parties submitted conflicting expert opinions regarding the likelihood of a post-investigation FINRA bar (see Rudolf, 8 NY3d at 442). This conflict cannot be resolved at [*2]this stage of the litigation.

Issues of fact also exist regarding the existence of “actual and ascertainable” damages (see id. at 442). Plaintiff testified that he lost career opportunities because of the FINRA bar and also had to pay legal fees in a separate action initiated in response to his partners’ discovery of the bar. The extent to which the claims in that action stem from defendants’ alleged negligence, as opposed to plaintiff’s own misconduct in lying to his partners or other unrelated issues, is an issue for a factfinder. Similarly, the factfinder must determine the extent to which plaintiff should have further mitigated damages by seeking different career opportunities and the likelihood that he could have gotten a bad-actor waiver of the FINRA bar (see 17 CFR 230.506[d][2][ii]).”

In Supreme Court the judge, sua sponte, dismissed or declined to consider the Judiciary Law 487 counterclaims. In Matter of Jones Law Firm, P.C. v J. Synergy Green, Inc.
2024 NY Slip Op 05053 Decided on October 15, 2024 the Appellate Division, First Department determined that there is no appellate remedy, even where the AD determined that dismissal of the counterclaims was improper.

“Appeal from order, Supreme Court, New York County (Lyle E. Frank, J.), entered August 2, 2023, which, to the extent appealed from, declined to consider the counterclaims of respondents J. Synergy Green, Inc. Avrohom Y. Sorotzkin, and Yaakov Milstein (respondents) related to alleged violations of Judiciary Law § 487, unanimously dismissed, without costs.

The Judiciary Act § 487 counterclaims interposed in this action involve an inquiry into disputed facts as to whether petitioner Jones Law Firm, P.C. intentionally deceived respondents (see Matter of David H. Berg & Assoc. v Weksler, 193 AD3d 612, 613 [1st Dept 2021]). Petitioner did not seek dismissal of these claims. Consequently, Supreme Court improperly dismissed these counterclaims sua sponte. “Vacating the dismissal order is consistent with the public policy of this State to dispose of cases on their merits (Harwood v Chaliha, 291 AD2d 234, 234 [1st Dept 2002]), and upholds the principle that a trial court’s power to dismiss an action sua sponte should be used ‘sparingly and only in extraordinary circumstances'” (Cooper v Broems, 214 AD3d 497, 497 [1st Dept 2023] [internal quotation marks omitted]; see Ray v Chen, 148 AD3d 568, 569 [1st Dept 2017]; Grant v Rattoballi, 57 AD3d 272, 273 [1st Dept 2008]; see also Myung Chun v North Am. Mtge Co., 285 AD2d 42, 45 [1st Dept 2001]; Mateo v City of New York, 274 AD2d 337, 337 [1st Dept 2000]). However there is no right of appeal from an ex parte order, including an order entered sua sponte (Sholes v Meagher, 100 NY2d 333, 335 [2003]). Under these circumstances, the appropriate remedy is for us to dismiss the appeal.”

Payne v Rosenberg, Minc, Falkoff & Wolff, LLP 2024 NY Slip Op 05143 Decided on October 17, 2024 Appellate Division, First Department is not a particularly controversial decision, and we wonder why an appeal was taken. Nevertheless, a protective order concerning medical records and collateral source information was denied by the trial court and affirmed on appeal.

“The court properly denied plaintiff’s motion for a protective order, finding that plaintiff failed to meet her initial burden (see Liberty Petroleum Realty, LLC v Gulf Oil, L.P., 164 AD3d 401, 403 [1st Dept 2018]). Plaintiff’s legal malpractice cause of action concerns not only defendant’s alleged failure to commence collection proceedings in a timely fashion against the named defendant in the underlying personal injury action, but also the failure to name an additional defendant who had an interest in the subject property. Contrary to plaintiff’s contention, the requested materials may be relevant to assess whether plaintiff was likely to prevail against the unnamed defendant, and whether the unnamed defendant had any defenses as to liability or the amount of damages alleged (see generally Stawski v Pasternack, Popish & Reif, P.C., 54 AD3d 619, 620 [1st Dept 2008]). While the named defendant defaulted and plaintiff obtained a judgment against it, plaintiff has not established that the unnamed defendant would have defaulted or had no defenses.”

We are almost at the end of reading cases which discuss the Covid tolling of the statute of limitations in 2020. Here is one of the last likely legal malpractice cases extended by the plague.

In Nath v Chemtob Moss Forman & Beyda, LLP 2024 NY Slip Op 05061 Decided on October 15, 2024 the Appellate Division, First Department affirmed denial of a CPLR 3211 motion in a divorce setting, and gave a terse but informing description of how the statute of limitations might be applied to multiple claims within a continuing representation analysis.

“Defendants represented plaintiff in a divorce proceeding in New York. She now alleges that defendants committed legal malpractice by failing to advise her to file for divorce in California, which distributes property in a manner that she alleges would have been more favorable to her. She further alleges that California had jurisdiction for commencement of a divorce on the basis of numerous documents showing that her then-husband’s main address was in San Francisco. At the motion to dismiss stage, pursuant to CPLR 3211(a)(7) (see generally Lieberman v Green, 139 AD3d 815, 816 [2d Dept 2016]), these allegations sufficiently state that defendants “failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession” and that their failure caused plaintiff to suffer “actual and ascertainable damages” (id. at 816-817 [internal quotation marks omitted]; see Escape Airports [USA], Inc. v Kent, Beatty & Gordon, LLP, 79 AD3d 437, 438 [1st Dept 2010]).”

“Plaintiff’s claims are not time-barred. So much of the claims as allege that defendants failed to request maintenance and legal fees in the divorce action accrued on December 23, 2019, when the divorce court granted defendants’ motion to withdraw as plaintiff’s counsel. Since plaintiff commenced the instant action on December 15, 2022, this branch of her malpractice [*2]claim is timely.

Plaintiff’s claim that defendants should have advised her to bring suit in California accrued at the earliest on September 11, 2019. Her claim that they should have introduced evidence to support her motion for exclusive occupancy of the marital residence accrued on November 14, 2019, when the divorce court denied that motion. The continuous representation doctrine does not extend beyond November 27, 2019, when defendants informed plaintiff that they could no longer represent her (see Ellison v Seltzer, 209 AD3d 522, 522 [1st Dept 2022]; RJR Mech. Inc. v Ruvoldt, 170 AD3d 515 [1st Dept 2019]). COVID tolling, however, renders these claims timely (see Murphy v Harris, 210 AD3d 410, 411 [1st Dept 2022]).”

SJB RE Holdings, LLC v Gifford 2024 NY Slip Op 30924(U) March 21, 2024 Supreme Court, Saratoga County Docket Number: Index No. EF20233420 Judge: Richard A. Kupferman is a case about an apartment tenant moving out, and the landlord keeping the security deposit, over whether the apartment needed repainting and whether the landlord was permitted to keep an insurance payment. The landlord then sued the tenants and their attorney for defamation (in court proceedings) and violation of JL 487, to no avail.

“Plaintiffs filed a verified complaint against Defendants on December 5, 2023. The first four causes of action in the complaint are against Defendants Ryan Gifford and Gabrielle Gifford (the “Giffords”) for breach of contract, negligence, gross negligence, and tortious interference. These claims allege that the Giffords (tenants) breached a lease agreement by engaging in conduct prohibited under the terms of the lease and that they further caused damage by flushing feminine hygiene products down the toilet.

The remaining two claims in the complaint (the fifth and sixth causes of action) are asserted against the Giffords and their litigation counsel, Defendant, Terence J. Devine (“Devine”). These claims are based on statements that Devine made on the record during a court proceeding in the Waterford Town Court. The fifth cause of action is for defamation and seeks $1,000,000 in punitive damages, while the sixth cause of action seeks to recover monetary damages under Judiciary Law§ 487.”

Further, it is well settled that “a statement, made in open court in the course of a judicial proceeding, is absolutely privileged if, by any view or under any circumstances, it may be considered pertinent to the litigation” (Martirano v Frost, 25 NY2d 505, 507 [1969]). As explained by the Court of Appeals, nothing “said in the court room may be the subject of an action for defamation unless … the statement [is] so outrageously out of context as to permit one to conclude, from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame” (id. at 508). As is readily apparent, the statements complained of were made in open court and challenged the basis for Better’s retention of the security deposit and the charges for repairs. Such statements were absolutely pertinent to the litigation and, as such, are privileged (see id.; Gill v Dougherty, 188 AD3d 1008, 1010 [2d Dept 2020] [“The cause of action alleging defamation failed because the challenged statements were absolutely privileged as a matter of law and cannot be the basis for a defamation action”]). The allegations in the pleading and opposition papers similarly fail to allege sufficient facts to state a cause of action under Judiciary Law § 487. 1 Even when viewed in the light most favorable to the Plaintiffs, the statements made by Devine were not deceitful in any manner at all (see Gill, 188 AD3d at 1009). In fact, it is readily apparent that under no circumstances could a reasonable person conclude that Devine accused Better of any crime or engaged in any attorney misconduct. Accordingly, the Court finds that the complaint ( even as amended) fails to state a cause of action for defamation, slander, and/or a violation of the Judiciary Law. The fifth and sixth causes of action are therefore DISMISSED. “

Silverstein v Nezhat 2024 NY Slip Op 32173(U) June 24, 2024 Supreme Court, New York County Docket Number: Index No. 109486/2006 Judge: Kathy J. King is a good example of how Courts generally treat Judiciary Law 487 claims. They are skeptical, and have a high tolerance to attorney conduct, rarely upholding a 487 claim.

“The instant medical malpractice action was commenced in 2006 against Mount Sinai Hospital and Dr. Farr Nezhat. Plaintiff, who is an attorney and proceeding pro se in this application, was represented by counsel at trial, in early 2016. The case was tried to verdict over the course of 15 days before the Honorable Eileen A. Rakower, and ultimately the jury ruled in favor of the defendants on plaintiff’s medical malpractice and lack of informed consent claims. Judgment was entered on June 1, 2016. The record reveals that a notice of appeal was filed on behalf of plaintiff; however, plaintiff never perfected her appeal, and according to defendants, the appeal was dismissed on defendants’ motion. In support of her motion, plaintiff argues that the judgment must be vacated because defense counsel engaged in fraudulent conduct at trial through “deceit and collusion” with the defendants, defense witnesses, and defense experts, resulting in a “fraudulent verdict.” In essence, plaintiff asserts, inter alia, that witnesses perjured themselves at the behest of defense counsel. Plaintiff also asserts that during the trial defense counsel used defamatory language when speaking about the plaintiff to the jury.”

“The Court further finds that plaintiff’s reliance on Judiciary Law § 487 is barred by collateral estoppel which gives conclusive effect to prior determinations when two conditions are met. There must be “an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling” (Lennon v 56th and Park (NY) Owner, LLC, 199AD3d 64, 69 [2d Dept 2021], quoting Buechel v Bain, 97 NY2d 295, 303-04 [2001] [internal quotation marks omitted]). Here, the issue as to whether defendants’ attorneys violated Judiciary Law § 487 prior to and during the trial of the instant medical malpractice action was determined in a plenary matter commenced by plaintiff. By Decision and Order dated May 30, 2023, bearing Index No. 151024/2022, the Court (J. Ramseur) denied plaintiff’s motion under Judiciary Law § 487. Thus, vacatur of the judgment and damages is barred by collateral estoppel.”

A.M. Richardson, III, LLC v Iron Oak, Inc. 2024 NY Slip Op 33464(U) September 27, 2024 Supreme Court, New York County Docket Number: Index No. 651250/2023 Judge: Lyle E. Frank is short and sweet. Attorney send an invoice and client writes back that they have to discuss the bill. Insufficient objection to overcome the “account stated” principle.

“The complaint alleges that the parties entered into both express and implied contracts, that plaintiff provided services to defendants based on those contracts and that defendants have failed to compensate plaintiff for the services provided. The primary opposition to plaintiff’s motion is the allegation that plaintiff committed legal malpractice and thus is not entitled to the amount of legal fees sought.”

“There are no such itemized statements specifically in the complaint nor attached thereto requiring defendant to provide specific objections. While in support of its motion, plaintiff annexed the complaint and the invoices and retainer agreement, those exhibits were not filed with its complaint, see NYSCEF Doc. 2. Thus, defendant’s denials are sufficient as plaintiff has failed to establish a prima facie entitlement to judgment as a matter of law as to the first cause of action. Accordingly, that portion of plaintiff’s motion is denied. Plaintiff’s second cause of action alleges account stated. Plaintiff may establish an account stated by any one of three alternative means: (1) the retention of bills without objection for a reasonable period of time, (2) partial payment, or (3) the defendant’s acknowledgment of the debt. See Rosenman Colin Freund Lewis & Cohen v Neuman, 93 AD2d 745, 746 [1st Dept 1983] (account stated established by receiving and retaining bills without any timely objection); Liddle O’Connor, Finkelstein & Robinson v Koppelman, 215 AD2d 204 [1st Dept 1995] (account stated based only on partial payment); Bracken & Margolin, LLP v Schambra, 270 AD2d 221 [2d Dept 2000] (account stated based on retention of invoices without objection and acknowledgment of obligation to pay). Plaintiff has established a prima facie showing of account stated. The complaint alleges that invoices were sent and defendant did not object. Plaintiff annexes the subject invoices, and defendant does not dispute that they were sent and retained, rather defendant contends that objections were made. Defendant attaches emails that defendant contends object to the subject invoices; however, they only contain statements such as “need to talk to resolve” see NYSCEF Doc. 42. There is no admissible evidence submitted to establish that any timely objections were made to the invoices. Accordingly, plaintiff’s motion for summary judgment on its second cause of action for account stated is granted.”

Getty v Schiavetta 2024 NY Slip Op 50697(U) [83 Misc 3d 1212(A)] Decided on May 18, 2024 Supreme Court, Westchester County Ondrovic, J. is a claim of legal malpractice and violation of Judiciary Law 487. Portions of the case were dismissed and motions for default were denied.

“By way of background, pro se plaintiff commenced this action by filing a summons and complaint on September 24, 2023, to recover damages for alleged legal malpractice. The complaint asserts claims for legal malpractice and violation of Judicial Law § 487. Plaintiff alleges that defendants committed legal malpractice in their representation of plaintiff in prior litigations for damages stemming from mold contamination in plaintiff’s cooperative unit located in Port Chester, New York.[FN1] The parties in the underlying litigations participated in private mediation and the litigations were settled by agreement in October 2020 (Settlement Agreement). Plaintiff alleges that he agreed to settlement terms on August 11, 2020, but defendants had “put plaintiff against a wall” and left “him with no choice but to agree to a different settlement” (i.e., the Settlement Agreement) (complaint at 4-5 [NYSCEF Doc. 1]).”

“Here, Russo defendants demonstrated that they were not properly served since Carroll was not authorized to accept service on behalf of Russo & Gould. Plaintiff failed to rebut Russo defendants’ showing with admissible evidence.[FN4] To the extent plaintiff calls into question Carroll’s apparent authority to accept service, the Court in its discretion finds any error on Carroll’s part akin to law office failure and therefore Russo defendants’ default is excused (see CPLR 2005). Russo defendants also demonstrated potentially meritorious defenses, which plaintiff failed to substantively address beyond reasserting allegations from the complaint.

Furthermore, the relatively brief length in the delay in appearing (from purported service), Russo defendants’ efforts to secure from plaintiff an extension of time to respond, lack of prejudice to plaintiff, and the strong public policy in favor of resolving cases on the merits all inure to the benefit of Russo defendants.

Accordingly, plaintiff’s application for default judgment against Russo defendants is DENIED.”

“Here, the complaint fails to allege facts establishing proximate cause, namely, that the defendants in the prior litigations would have executed an agreement requiring them to pay more than what was agreed to in the Settlement Agreement or to additionally repair plaintiff’s cooperative unit at their own expense. Moreover, the complaint fails to allege fraud with any particularity (see CPLR 3016[b]; see Browne v Lyft, Inc., 219 AD3d 445, 447 [2d Dept 2023]; Shah v Mitra, 171 ADed 971, 976 [2d Dept 2019]). These deficiencies warrant dismissal of the legal malpractice claim pursuant to CPLR 3211(a)(7), but the latter deficiency is also fatal to plaintiff’s opposition to relief pursuant to CPLR 3211(a)(1) premised on plaintiff’s execution of the Settlement Agreement.

The Settlement Agreement, signed by plaintiff, includes the following representation attributed to plaintiff as the releasor:

Releasor hereby declares that the terms of this Release have been completely read and are fully understood and voluntarily accepted for the purpose of making a full and final settlement of any and all claims (exhibit B to Oxenburg affirmation, Settlement Agreement at 3 [NYSCEF Doc. 49] [emphasis added]).

Given that the Settlement Agreement declares plaintiff “voluntarily accepted” the terms of the agreement, absent a sufficient pleading of fraud, coercion, or inducement, the Settlement Agreement utterly refutes plaintiff’s factual allegations (Miller v Brunner, 164 AD3d 1228, 1231 [2d Dept 2018] [“A signed release shifts the burden of going forward . . . to the plaintiff to show that there has been fraud, duress or some other fact which will be sufficient to void the release” [internal quotation marks, brackets, and citation omitted]).

As to plaintiff’s Judiciary Law § 487 cause of action, “[a] violation of Judiciary Law § 487 requires an intent to deceive” (Guliyev v Banilov & Assoc., P.C., 221 AD3d 589, 591 [2d Dept 2023] [internal quotation marks and citation omitted]). “Allegations regarding an act of deceit or intent to deceive must be stated with particularity” (id. [internal quotation marks and citation omitted]).

Here, the complaint also fails to allege deceit or intent to deceive with any particularity, which necessitates dismissal of the Judiciary Law § 487 cause of action (see id.; DeMartino, 189 AD3d at 776 [dismissing Judiciary Law § 487 claims because only conclusory pleading of intent to deceive]).

Accordingly, Schiavetta defendants’ cross-motion for an order dismissing the complaint pursuant to CPLR 3211(a)(1) and (a)(7) is GRANTED, but as the dismissal is due to deficiencies in the pleading, the dismissal will be without prejudice (see Cadet-Duval v Gursim Holding, Inc., 147 AD3d 718, 720 [2d Dept 2017]).”

We have often argued that attorneys are given many dispensations in legal malpractice litigation that defendants in other professional negligence cases and in most litigation do not enjoy. Our colleagues in the legal defense bar don’t exactly disagree, but generally argue that the rules are fair. One item that no one disagrees with is that in order to have a good legal malpractice claim against a criminal defense attorney, the plaintiff must show “actual innocence as we see in Brooks v Winston & Strawn LLP 2024 NY Slip Op 33362(U) September 24, 2024 Supreme Court, New York County Docket Number: Index No. 159003/2021 Judge: Lisa S. Headley.

“On September 30, 2021, plaintiff, Jeffrey Brooks, filed this action as the acting personal representative of the decedent, David Brooks, against the decedent’s former attorneys, Gerald L. Shargel, Esq., Law Office of Gerald L. Shargel LLP and Winston & Strawn LLP ( collectively, “defendants”) for legal malpractice while representing the decedent, who was subject to federal grand jury investigations in 2006, and subsequently convicted in August 2010, following a trial, for fraud and obstruction to justice, and sentenced to a term of imprisonment, a fine, and a forfeiture motion judgment and restitution. The decedent died on October 27, 2016, while in federal custody. Specifically, the plaintiff alleges, inter alia, the defendants provided incorrect legal advice, and failed to represent the decedent with reasonable care, skill and diligence ordinarily exercised by attorneys specializing in the areas of law. Plaintiff asserts in the Complaint that the defendants held themselves out as experts in the field of federal grand jury investigations, and white-collar criminal defense, however they breached their fiduciary duty, inter alia, by failing to take action that would have exposed unlawful use of an expired grand jury by the Assistant United States Attorney prosecuting the federal criminal case against the decedent. Plaintiff is also seeking monetary damages for defendants’ legal malpractice, negligence, breach of fiduciary duty, and breach of contract. “

“To state a cause of action for legal malpractice arising from negligent representation in a criminal proceeding, plaintiff must allege his innocence or a colorable claim of innocence of the underlying offense for so long as the determination of his guilt of that offense remains undisturbed, no cause of action will lie. This requirement is central to the determination of causation in a cause of action for legal malpractice arising from a criminal proceeding. The client must show that the attorney was the proximate cause of his or her conviction.” See, Britt v. Legal Aid Soc., Inc., 95 N.Y.2d 443, 446 (2000) [internal citations omitted]. Here, the plaintiff’s Complaint fails to state a cognizable cause of action for professional malpractice and breach of contract. As it pertains to the legal malpractice claim, “[ d]ecisions regarding the evidentiary support for a motion or the legal theory of a case are commonly strategic decisions and a client’s disagreement with its attorney’s strategy does not support a malpractice claim, even if the strategy had its flaws.” Brookwood Companies, Inc. v. Alston & Bird LLP, 146 A.D.3d 662 (1st Dep’t 2017). To survive dismissal, the complaint must show that “but for counsel’s alleged malpractice, the plaintiff would not have sustained some actual ascertainable damages.” Franklin v. Winard, 199 A.D.2d 220 (1st Dep’t 1993) [internal citations omitted]. In addition, “it must be established that the attorney failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community. It must also be established that the attorney’s negligence was a proximate cause of the loss sustained, and that the plaintiff incurred damages as a direct result of the attorney’s actions.” Hwang v. Bierman, 206 A.D.2d 360 (2d Dep’t 1994) [internal citations omitted]. Furthermore, this Court finds plaintiff’s arguments do not prevail, and even if the defendants executed a different strategy, that would not have rendered the decedent a more favorable outcome in the criminal action. The decedent’s grievances or disappointment in the outcome of the criminal action handled by the defendants does not constitute legal malpractice. In addition, the defendants argue that the decedent’s guilty plea bars this action because the decedent did not have a “colorable claim of innocence.” “[W]hen a frustrated litigant complained of counsel’s omissions,’ [p ]lain tiffs remedy relies on prima facie proof that he would have succeeded'[.]” Pellegrino v. File, 291 A.D.2d 60, 63 (1st Dep’t 2002). Here, there is no dispute that the decedent pled guilty to certain charges and was found guilty on some charges after a jury trial. (See, NYSCEF Doc. No. 52). As such, the Court hereby dismisses the plaintiff’s legal malpractice cause of action.”