Alksom Realty LLC v Baranik   2015 NY Slip Op 50869(U)  Decided on June 9, 2015  Supreme Court, Kings County  Demarest, J. is a case that touches two of the most relevant issues to a New Yorker, especially a Manhattanite, real estate and taxes.  Looking at this story, one asks, how could this happen?

Plaintiff has an apartment at 25 Columbus Circle which is the uber-premiere Times-Warner building.  He has an apartment on the 58th floor that is up for sale for $ 4.1 Million.  He signs a sales contract and accepts not 10% but rather 1% ($ 41,000) and then goes to the closing and transfers the property without receiving his $4.06 million.  He waits 4 years to sue the buyer?  How can this happen?

“In or about May 2007, Alksom contracted to sell apartment 58G at 25 Columbus Circle, New York, New York (the “Contract” and the “Apartment”, respectively) to Artique Multinational, LLC (“Artique”) for the purchase price of $4.1 million. Upon execution of the Contract, Artique paid $41,000 as a down payment to Alksom. At the closing of title, Artique did not pay the balance of the purchase price. Nevertheless, Alksom transferred title to the Apartment on September 10, 2007 based on the managing member of Artique, David Segal’s (“Segal”), assurances that payment of the balance was forthcoming. Plaintiffs claim that they were never paid the full purchase price. This chain of events gave rise to an action in New York County styled Komolov v Segal, Index No. 651626/2011, in which plaintiffs seek a money judgment for conversion of the Apartment (the “Segal Action”).

Based on Roman’s deposition testimony in the Segal Action, plaintiffs claim that Roman and Rom Bar committed accounting malpractice by reporting receipt of full consideration for the sale of the Apartment on Alksom’s 2007 Federal tax return (the “Original Return”), even though Alksom had never received the balance of the $4.1 million purchase price. Plaintiffs claim that Roman and Rom Bar impermissibly relied on representations from Segal that full consideration was paid to Alksom, as well as a single page facsimile from Segal that contained Segal’s recollection of the amount paid by Alksom when it first purchased the Apartment from Segal in 2005. Plaintiffs claim that Roman failed to collect any supporting documentation and did not have “closing statements” from either Alskom’s 2005 purchase of the Apartment or the September 2007 sale of the Apartment. Plaintiffs further claim that Roman and Rom Bar knew that no consideration was received in plaintiffs’ bank accounts because Roman had full access to these accounts. Plaintiffs assert that Roman and Rom Bar relied on incomplete information and failed to verify this information with the client before filing the Original Return. Plaintiffs further assert that although Roman and Rom Bar knew that the Original Return was inaccurate by the fall of 2010, Roman and Rom Bar waited until 2012 to file an amended tax return, even though the deadline to amend the Original Return would have been April 2011. Based on these allegations, plaintiffs assert causes of action for accountant malpractice, negligence, and gross negligence.”

Defendants argue that plaintiffs’ thirteenth through eighteenth causes of action must be dismissed as time-barred. CPLR § 214(6) sets forth a three-year statute of limitations for accounting malpractice. “A claim accrues when the malpractice is committed, not when the client discovers it” (Williamson v PricewaterhouseCoopers LLP, 9 NY3d 1, 7-8 [2007]). Defendants claim that because the Original Return was filed on April 14, 2008, plaintiffs’ claims for accounting malpractice, negligence, and gross negligence are time-barred because this action was commenced on December 1, 2014, over three years from when plaintiffs’ cause of action accrued. However, plaintiffs correctly argue that the statute of limitations here is tolled because of the continuous representation doctrine.

“[U]nder the continuous treatment doctrine, when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint,’ the limitations period does not begin to run until the end of the treatment” (id. at 8, quoting Borgia v City of New York, 12 NY2d 151, 155 [1962]). Although the continuous representation doctrine originally derived from the continuous treatment concept in medical malpractice cases, it has been applied to other professionals, such as accountants (see Zaref v Berk & Michaels, P.C., 192 AD2d 346 [1st Dept 1993]). For the continuous representation doctrine to apply, plaintiff must “assert more than simply an extended general relationship between the professional and the client in that the facts are required to demonstrate continued representation in the specific matter directly under dispute” (id. at 348). After filing the Original Return in 2008, Roman filed an amended return in 2012[FN2] in order to correct the erroneous information in the Original Return. Here, plaintiff has demonstrated continuous representation by defendants relating to the specific matter of the inaccuracies reported by Roman and Rom Bar in the Original Return such that the statute of limitations is tolled. Accordingly, plaintiffs’ accounting malpractice claims are timely.”

Legal Malpractice is an  attorney’s failure to use minimally adequate levels of care, skill or diligence in the performance of representation of the client, causing harm. In New York, attorney malpractice is defined as a deviation or departure from good and accepted legal practice, where the client has been proximately damaged by that deviation, but for which, there would have been a different, better or more positive outcome and which caused ascertainable damages.

The first element of a relationship between the client and the professional is that there was a contractual relationship between the attorney and the client.  An actual relationship is necessary.  The cases often set forth that a “subjective belief” that the attorney was representing them is insufficient.  The second element, deviation, is shown by evidence, not necessarily expert, which shows that the acts of the professional fell so below the good and accepted practice of law in New York, that a jury would be permitted to find that the acts below standard.

Expert testimony is necessary when the deviation is subtle; an example could be the failure to supply an affidavit of merits to restore a case marked off calendar, the failure to respond to a CPLR 3216 notice, or failures in response to a motion for summary judgment. Expert testimony is not always necessary however. None is needed to demonstrate the deviation in failing to file within the statute of limitations. Bad outcome do not necessarily equal a deviation. Furthermore, questions of judgment of strategic choice cannot serve as the basis of malpractice. An attorney is permitted the reasonable choice of strategy, if supported by acceptable reasoning. The strategic choice must be reasonable both objectively and subjectively. The difference between strategic choice and mistake are subtle, and create the most difficult cases.

The third element of proximate cause encompasses both the typical analysis that arises in all negligence litigation and the additional element of “but for.” The plaintiff must demonstrate not only that the deviation was a substantial cause of the poor outcome, but must additionally show that “but for” the deviation there would have been a different, better or more positive outcome. An example of this potential difficulty arises in an automobile accident. No matter how many deviations are shown, it may be that the maximum insurance for the other driver limits the recovery. If that is true, it will be impossible to show that “but for” the deviation, more than the policy limit was available and could have been recovered from the defendant.

Judiciary Las § 487 claims are widely brought, but remain elusive.  Courts seem to want to reserve them for the most egregious situations, and will dismiss any number of cases that do not meet their catastrophic criteria. Gumarova v Law Offs. of Paul A. Boronow, P.C.   2015 NY Slip Op 05155  Decided on June 17, 2015  Appellate Division, Second Department  is one such example.

Dismissed on a pre-answer motion, it was affirmed on appeal.  “On a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint for failure to state a cause of action, the court must accept the facts alleged in the pleading 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 (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Leon v Martinez, 84 NY2d 83, 87).

Judiciary Law § 487 provides that 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” is guilty of a misdemeanor, and “forfeits to the party injured treble damages, to be recovered in a civil action.” “Since Judiciary Law § 487 authorizes an award of damages only to the party injured,’ an injury to the plaintiff resulting from the alleged deceitful conduct of the defendant attorney is an essential element of a cause of action based on a violation of that statute” (Rozen v Russ & Russ, P.C., 76 AD3d 965, 968).

Here, the Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging a violation of Judiciary Law § 487. The cause of action alleging a violation of Judiciary Law § 487 fails to sufficiently allege that the plaintiff suffered an injury proximately caused by any alleged deceit or collusion on the part of the defendants, and no such injury can reasonably be inferred from the allegations in the complaint (see Bohn v 176 W. 87th St. Owners Corp., 106 AD3d 598, 600; Rozen v Russ & Russ, P.C., 76 AD3d at 968).”

OK, so the client comes into the office, and you think you might take the case.  Then, after further thought, you think you might not take the case.  What do you do?  How do you do it?  Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP  2015 NY Slip Op 04819  Decided on June 10, 2015  Appellate Division, Second Department is an example of how not to disengage.

“On November 27, 2006, the plaintiff allegedly was driving his employer’s bus when he collided with another vehicle. Shortly thereafter, the plaintiff retained the defendant, a law firm, to represent him in connection with the motor vehicle accident. According to the defendant, in April 2007, it decided not to prosecute a personal injury action on the plaintiff’s behalf and advised the plaintiff of this fact by letter dated June 8, 2007, while continuing to represent the plaintiff with respect to a workers’ compensation claim. ”

“The defendant contended that it did not represent the plaintiff with respect to the personal injury action, based upon assertions that an attorney formerly with the defendant orally informed the plaintiff that “a personal injury action was not feasible” and thereafter sent the letter dated June 8, 2007, to the plaintiff by regular and certified mail. In support of the motion, the defendant submitted a copy of the letter and a blank certified mail receipt.

In opposition, the plaintiff’s attorney noted that the defendant did not submit an affidavit or affirmation from the attorney who allegedly mailed the letter dated June 8, 2007. The attorney further noted that the certified mail receipt was blank, and no return receipt was submitted. The plaintiff also submitted a personal affidavit wherein he stated that he retained the defendant for [*2]both his workers’ compensation claim and his personal injury claim, he was never informed that the defendant would not represent him in a personal injury action, and he never received the letter dated June 8, 2007.

In a reply affidavit, the attorney who allegedly mailed the letter dated June 8, 2007, who was now working at another law firm, stated that she “specifically advised” the plaintiff in a telephone conversation that “a personal injury action was not feasible” and as a result, the defendant “would not be representing him in a personal injury action.” She further stated that she sent the letter dated June 8, 2007, to the plaintiff via regular mail and certified mail.

The Supreme Court denied the defendant’s motion, and we affirm.”

“Here, the evidence submitted by the defendant failed to establish that the plaintiff has no cause of action. The evidence did not show that the letter dated June 8, 2007, was sent by certified mail return receipt requested, since the certified mail receipt was never filled out and there was no return receipt submitted. With respect to regular mail, “[t]he mere assertion that notice was mailed, supported by someone with no personal knowledge of the mailing,” in the absence of proof of office practices to ensure that the item was properly mailed, does not give rise to the presumption of receipt (Washington v St. Paul Surplus Lines Ins. Co., 200 AD2d [*3]617, 618; see Nassau Ins. Co. v Murray, 46 NY2d 828, 829; TD Bank, N.A. v Leroy, 121 AD3d 1256, 1258; Long Is. Sports Dome v Chubb Custom Ins. Co., 23 AD3d 441, 442). CPLR 2103(f)(1) defines mailing as “the deposit of a paper enclosed in a first class postpaid wrapper, addressed to the address designated by a person for that purpose or, if none is designated, at that person’s last known address, in a post office or official depository under the exclusive care and custody of the United States Postal Service within the state.” Here, while the defendant’s former attorney averred that she “sent” the letter dated June 8, 2007, by regular mail, she did not state that she deposited the letter in a United States Post Office depository. Since the defendant’s evidence failed to establish that a material fact as claimed by the plaintiff, namely, the existence of an attorney-client relationship, was “not a fact at all” and that “no significant dispute exists regarding it” (Guggenheimer v Ginzburg, 43 NY2d at 275), the Supreme Court properly denied that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint.”

A frequently recurring legal malpractice issue arises when one law firm handles a workers’ compensation case arising from a personal injury.  One such example is  Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP  2015 NY Slip Op 04819  Decided on June 10, 2015  Appellate Division, Second Department.  There are three lessons to be learned:

1.  Disengagement letters are vastly important;

2. When a disengagement letter is mailed, do it correctly;

3. The statute of limitations for legal malpractice accrues when the statute of limitations for the underlying personal injury action expires.

“On November 27, 2006, the plaintiff allegedly was driving his employer’s bus when he collided with another vehicle. Shortly thereafter, the plaintiff retained the defendant, a law firm, to represent him in connection with the motor vehicle accident. According to the defendant, in April 2007, it decided not to prosecute a personal injury action on the plaintiff’s behalf and advised the plaintiff of this fact by letter dated June 8, 2007, while continuing to represent the plaintiff with respect to a workers’ compensation claim. On or about October 21, 2010, the plaintiff discharged the defendant and hired a new attorney. In November 2012, the plaintiff commenced this action against the defendant to recover damages for legal malpractice. The plaintiff alleged that the defendant failed to commence a personal injury action on his behalf against the owner and operator of the other vehicle involved in the motor vehicle accident before the statute of limitations expired.

The defendant made a pre-answer motion to dismiss the complaint as time-barred, for failure to state a cause of action, and based upon documentary evidence. The defendant contended that it did not represent the plaintiff with respect to the personal injury action, based upon assertions that an attorney formerly with the defendant orally informed the plaintiff that “a personal injury action was not feasible” and thereafter sent the letter dated June 8, 2007, to the plaintiff by regular and certified mail. In support of the motion, the defendant submitted a copy of the letter and a blank certified mail receipt.

In opposition, the plaintiff’s attorney noted that the defendant did not submit an affidavit or affirmation from the attorney who allegedly mailed the letter dated June 8, 2007. The attorney further noted that the certified mail receipt was blank, and no return receipt was submitted. The plaintiff also submitted a personal affidavit wherein he stated that he retained the defendant for [*2]both his workers’ compensation claim and his personal injury claim, he was never informed that the defendant would not represent him in a personal injury action, and he never received the letter dated June 8, 2007.

In a reply affidavit, the attorney who allegedly mailed the letter dated June 8, 2007, who was now working at another law firm, stated that she “specifically advised” the plaintiff in a telephone conversation that “a personal injury action was not feasible” and as a result, the defendant “would not be representing him in a personal injury action.” She further stated that she sent the letter dated June 8, 2007, to the plaintiff via regular mail and certified mail.

The Supreme Court denied the defendant’s motion, and we affirm.”

“The statute of limitations for a legal malpractice cause of action is three years (see CPLR 214[6]). This legal malpractice action accrued when the statute of limitations for the underlying personal injury action expired (see Davis v Isaacson, Robustelli, Fox, Fine, Greco & Fogelgaren, 258 AD2d 321, 321;Goicoechea v Law Offs. of Stephen R. Kihl, 234 AD2d 507, 508). Here, the plaintiff’s underlying personal injury action accrued on November 27, 2006, when the accident occurred, and the statute of limitations expired three years later, on November 27, 2009 (see CPLR 214[5]). Thus, this legal malpractice action accrued on November 27, 2009, and the statute of limitations expired three years later, on November 27, 2012. This action was commenced on November 15, 2012. Therefore, this action was not time-barred.”

 

 

In a situation where one needs the program to know who the players are, Miuccio v Straci  
2015 NY Slip Op 05101  Decided on June 16, 2015  Appellate Division, First Department appears to be a legal malpractice case.  However, one needs to read well into the short opinion to gather that Plaintiff is suing Defendant for legal malpractice in the handling of some assets.

“Defendant contends that, even if there is a triable issue of fact as to his responsibility for the delay in transferring plaintiffs’ assets from Amalgamated Bank to Western Asset Management (WAM), the damages plaintiffs seek, namely, the difference between the low interest rate the funds earned at Amalgamated and the higher return they would have received at WAM, are too speculative. This argument is unavailing. “[B]ut for” defendant’s alleged negligence (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]), plaintiffs would have earned a higher return earlier than June 2005, and the difference between the amount they earned at Amalgamated and the amount they would have earned at WAM is “readily ascertainable” (id. at 443) and, indeed, was “calculated” (id.)by their expert.

We have considered defendant’s remaining contentions, including that lost profits can be awarded only if a fiduciary engages in self-dealing, and find them unavailing. Notably, the case sounds in legal malpractice, not breach of fiduciary duty. The claim is that defendant was negligent in handling paperwork to effect the transfer of assets from one company to another, not that he retained the assets or invested them in a manner disadvantageous to plaintiffs.”

Coccia v Liotti  2015 NY Slip Op 04801  Decided on June 10, 2015  Appellate Division, Second Department is a strange case.  Mr. Liotti is a well known legal malpractice defendant.  This legal malpractice case sputtered to a halt after Plaintiff successfully wiped out all of Mr. Liotti’s counterclaims for fees.  We are perplexed.

“In 2003, the plaintiff retained the defendant to represent her in a matrimonial action. The matrimonial action later settled, and the plaintiff, inter alia, received an equitable distribution award of $1.6 million. In 2006, the plaintiff commenced this action against the defendant alleging, inter alia, legal malpractice. Extensive motion practice ensued, resulting in several appeals to this Court. On one of those appeals, this Court, inter alia, modified an order of the Supreme Court entered May 5, 2008, so as to grant those branches of the plaintiff’s cross motion which were for summary judgment dismissing the first, second, and third counterclaims, each seeking to recover outstanding counsel fees (see Coccia v Liotti, 70 AD3d 747).

In August 2013, the defendant moved for a hearing on the issue of counsel fees and for an award of costs and sanctions. The plaintiff cross-moved pursuant to CPLR 3217(b) to voluntarily discontinue the action. In the order appealed from, the Supreme Court denied the defendant’s motion and granted the plaintiff’s cross motion. The defendant appeals from so much of the order as denied his motion.”

We wonder why plaintiff simply gave up.

This case is the sad story of bad medicine, bad guardianships and death. Sutch v Sutch-Lenz
2015 NY Slip Op 04692  Decided on June 4, 2015  Appellate Division, Third Department.  It starts off with medical malpractice, the death of a father-husband in a flight school training accident, success in the medical malpractice and a money quarrel between mother and son. None of it is good.  Plaintiff’s problem is the lack of privity.

“In 1996, plaintiff’s mother, defendant Debera C. Sutch-Lenz, and father, Alfred Sutch (hereinafter decedent), commenced a medical malpractice action based upon injuries allegedly sustained by Sutch-Lenz while undergoing breast reduction surgery. Defendants William J. Cade and Cade & Saunders, P.C. (hereinafter collectively referred to as defendants) ultimately came to represent Sutch-Lenz and decedent in that action. In March 2000, prior to the trial of the medical malpractice matter, decedent was killed in a light plane crash in Saratoga County and, in April 2000, Sutch-Lenz was granted limited letters of administration for purposes of pursuing both decedent’s derivative claim in the context of the medical malpractice action and a wrongful death action. The medical malpractice action subsequently proceeded to trial and, by judgment entered in August 2001, decedent’s estate was awarded $100,000 on his derivative claim (Sutch v Yarinsky, 292 AD2d 715 [2002]).”

In the interim, Sutch-Lenz, in her capacity as the administrator of decedent’s estate and while represented by defendants, commenced a wrongful death action against the aircraft’s manufacturer and the flight school where decedent had been taking lessons. A proposed settlement of that action subsequently was reached and, in conjunction therewith, Supreme Court appointed defendant James G. Snyder to serve as guardian ad litem for plaintiff (born in 1993) and his sister, Jessica Sutch (born in 1989). After reviewing the proposed distribution, Snyder issued a report to Supreme Court recommending that the settlement be approved. Supreme Court thereafter authorized Sutch-Lenz to settle the wrongful death action,[FN1] and plaintiff’s share of the proceeds was used to purchase annuities in his name.

There is no question that a legal malpractice claim requires — in the first instance — “the existence of an attorney-client relationship” (Arnold v Devane, 123 AD3d 1202, 1203 [2014]). Plaintiff does not contend, and the record does not otherwise reflect, that he had a contractual relationship with defendants. Rather, plaintiff argues that because defendants represented Sutch-Lenz in her capacity as the administrator of decedent’s estate in both the medical malpractice and wrongful death actions and plaintiff, in turn, is a beneficiary of decedent’s estate, it necessarily follows that defendants were duty bound to represent plaintiff’s best interests in the context of those two actions. The flaw in plaintiff’s argument on this point is that “[i]n New York, a third party, without privity, cannot maintain a claim against an attorney in professional negligence, absent fraud, collusion, malicious acts or other special circumstances” (Estate of Schneider v Finmann, 15 NY3d 306, 308-309 [2010] [internal quotation marks and citation omitted]; accord Zinnanti v 513 Woodward Ave. Realty, LLC, 105 AD3d 736, 737 [2013]; cf. Leff v Fulbright & Jaworski, L.L.P., 78 AD3d 531, 532 [2010],lv denied 17 NY3d 705 [2011]). Although a limited exception has been carved out with respect to an action brought by the personal representative of an estate, “strict privity remains a bar against beneficiaries’ and other third-party individuals’ estate planning malpractice claims absent fraud or other circumstances” (Estate of Schneider v Finmann, 15 NY3d at 310; see Leff v Fulbright & Jaworski, L.L.P., 78 AD3d at 532).”

Dawson v Schoenberg  2015 NY Slip Op 04603  Decided on June 3, 2015  Appellate Division, Second Department is the sister case to Dawson which we discussed yesterday.  As is well settled, in a legal malpractice case against a former defense attorney, plaintiff must demonstrate that the conviction “was due to the attorney’s actions alone and not due to some consequence of his [or her] guilt” (Britt v Legal Aid Socy., 95 NY2d 443, 447; see Dombrowski v Bulson, 19 NY3d at 350-351; Cummings v Donovan, 36 AD3d 648, 648).”  We don’t see why this was not still a question of fact on a motion for summary judgment, but the AD2 definitely does not agree with us.

“Here, the defendant met his initial burden of demonstrating, prima facie, that the plaintiff is unable to prove the element of causation. Specifically, the defendant submitted admissible evidence demonstrating that the plaintiff’s convictions after her first trial were not due solely to the defendant’s conduct, but were also the result of other factors, including those arising from “some consequence of [her] guilt” (Britt v Legal Aid Socy., 95 NY2d at 447). The evidence submitted by the defendant included graphic testimony of the plaintiff’s own children, admitted into evidence at the first trial, which detailed numerous acts of sexual abuse committed by the plaintiff against them. In opposition, the plaintiff failed to raise a triable issue of fact as to whether her convictions after the first trial were due solely to the defendant’s conduct (see id.).

Additionally, the plaintiff’s claims for nonpecuniary damages, including physical and psychological injuries allegedly sustained while she was incarcerated following the first trial, are not recoverable in a legal malpractice action (see Dombrowski v Bulson, 19 NY3d 347;D’Alessandro v Carro, 123 AD3d 1; Young v Quatela, 105 AD3d 735; Brownell v LeClaire, 96 AD3d 1336, 1338).”

Today, we will examine the criminal conviction – legal malpractice case from Plaintiff’s point of view.  Dawson v Schoenberg
2015 NY Slip Op 04603  Decided on June 3, 2015  Appellate Division, Second Department is really a disheartening view of human interactions.  It seems that everyone in this story was poorly treated.

From the decision on Plaintiff’s motion for summary judgment:

“In a prior criminal proceeding, the plaintiff was convicted of three counts of course of sexual conduct against a child and one count of sexual abuse in the second degree based upon allegations that she sexually abused two of her children over a period of years. On appeal, this Court reversed the judgment of conviction on the grounds that the plaintiff was deprived of the effective assistance of counsel and that, when viewed as whole, the manner in which the trial was conducted deprived her of her right to a fair trial. Accordingly, this Court remitted the matter to the County Court, Nassau County, for a new trial before a different Judge (see People v Dean, 50 AD3d 1052). After the new trial, the plaintiff was acquitted of the charges against her.

To recover damages for legal malpractice, a plaintiff must establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see McCoy v Feinman, 99 NY2d 295, 301-302; Biberaj v Acocella, 120 AD3d 1285, 1286). Even where a plaintiff establishes that his or her attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by members of the legal profession, the plaintiff must still demonstrate causation (see Di Giacomo v Michael S. Langella, P.C., 119 AD3d 636, 638).

For the reasons stated more fully in our decision and order in a companion appeal (see Dawson v Schoenberg, _____ AD3d _____ [Appellate Division Docket No. 2013-11367; decided herewith]), the plaintiff failed to demonstrate, prima facie, that her convictions were “due to the [*2]attorney’s actions alone and not due to some consequence of [her] guilt” (Britt v Legal Aid Socy., 95 NY2d 443, 447; see Dombrowski v Bulson, 19 NY3d 347, 350). Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment on the issue of liability, without regard to the sufficiency of the papers submitted in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851).”

Tomorrow, we’ll look at this case from Defendant’s side.