This trial of a legal malpractice case ended up in Civil Court. It was probably there on a claim for legal fees with a legal malpractice counterclaim.   It arose out of US Customs duty litigation, which sometimes takes place in the US District Courts and often wends its way to the US Supreme Court.  Here, the claim was that there was negligence in the representation at a administrative protest of customs duty assessments.

The Appellate Term in Milgram Thomajan & Lee, P.C. v Golden Gate Petroleum, P.C.  2014 NY Slip Op 24063 [43 Misc 3d 68]  worked its way through the entire trial and then resolved a bankruptcy issue.

“The action arises out of plaintiff’s representation of the first-named defendant, a petroleum importer, in connection with an administrative protest of a customs duty assessment imposed on a shipment of gasoline and related chemicals. The jury’s verdict, finding that plaintiff did not commit malpractice in its underlying representation of defendant, was not against the weight of the evidence. The trial evidence, fairly interpreted, supports the jury’s evident rejection of defendant’s contention that but for plaintiff’s advice, defendant would have prevailed in the underlying customs protest, one which, the record shows, defendant elected to pursue in the face of plaintiff’s frank admonition that it “may prove a tough fight, the outcome of which cannot be predicted with any certainty.” The evidence, including the conflicting expert opinion testimony, permitted the jury to conclude that, in advising defendant, the lawyers of plaintiff law firm did not disregard settled law (see Darby & Darby v VSI Intl., 95 NY2d 308, 313 [2000]) and would have permitted a jury finding that the advice itself was not the proximate cause of defendant’s losses (see Chadbourne & Parke v HGK Asset Mgt., 295 AD2d 208, 209 [2002]). And while defendant posits several alternative courses that plaintiff might have pursued in the underlying administrative protest, it failed to show that the tactical decisions made by the firm did not constitute “proper strategic legal decision-making” (Taylor v Paskoff & Tamber, LLP, 102 AD3d 446, 448 [2013]), or so the jury reasonably could find. Nor was the jury’s consideration of the legal malpractice issue shown to have been compromised in any way [*2]by the form{**43 Misc 3d at 70} of the verdict sheet, particularly when that document is viewed in the context of the charge as a whole (see Plunkett v Emergency Med. Serv. of N.Y. City, 234 AD2d 162, 163 [1996]).

The record discloses no evidentiary error warranting reversal. The out-of-court statements made by defendant’s (now) deceased chief financial officer were admissible under the “speaking agent” exception to the hearsay rule (see Loschiavo v Port Auth. of N.Y. & N.J., 58 NY2d 1040, 1041 [1983]). Further, in light of the voluminous evidence considered by the jury, including over 60 trial exhibits introduced by defendant, any error in the exclusion of the two documents now complained of by defendant would have been harmless (see Ramkison v New York City Hous. Auth., 269 AD2d 256, 256 [2000]).

We note finally that the court properly directed a verdict in favor of plaintiff on its main claim for unpaid legal services, a claim which, as one abandoned by plaintiff’s trustee in bankruptcy, revested in plaintiff at the close of the bankruptcy proceeding (see Dynamics Corp. of Am. v Marine Midland Bank-N.Y., 69 NY2d 191, 195-196 [1987]; Culver v Parsons, 7 AD3d 931, 932 [2004]).”

Candela Entertainment, Inc. v Davis & Gilbert, LLP   2015 NY Slip Op 02712   Decided on March 31, 2015 Appellate Division, First Department is another example of the Appellate Division applying a laser-sharp eye to the “but for” portion of a case.  Here the question, on a motion to dismiss, was not whether the complaint stated “any” cause of action, but rather, could Plaintiff prove that it would not have taken up a commercial transaction if the attorneys had advised them that the transaction required certain consents to be given.

From the decision:  “Plaintiffs’ allegations failed to establish that plaintiffs had a cause of action for legal malpractice. The pleadings, affidavits and documentary evidence submitted on the motion established that the law firm’s alleged malpractice did not proximately cause plaintiffs any injury (see generally Borges v Placeres, 123 AD3d 611, 611 [1st Dept 2014], and Barnett v Schwartz, 47 AD3d 197, 205 [2d Dept 2007]). Plaintiffs never alleged that they would have abandoned or postponed the assignment of film rights and attendant intellectual property from the individual plaintiff’s nonparty, nonprofit corporation to the plaintiff corporation, had they been advised by the law firm that the film involved licensing issues necessitating licensor consents in order to be [*2]freely marketable. The individual plaintiff had secured the licenses for materials used in the film before the assignment, and plaintiffs do not allege that they were unable to secure consents after the assignment.”

Goldin v Tag Virgin Is. Inc.  2014 NY Slip Op 31308(U)  May 20, 2014  Supreme Court, New York County
Docket Number: 651021/2013  Judge: Eileen Bransten is an example of overreaching.  The law of legal malpractice in New York cleaves to a policy of strict privity.  If you did not hire the attorney, and the attorney did not work for you, then your opportunities are strictly limited.  The exception of malice, collusion, fraud or other “acts” is very hard to take advantage of.

“This action stems from investments made in brokerage accounts, managed by Defendant TAG, for which Plaintiffs are the beneficiaries or the co-trustees. Defendant TAG, formerly known as Taurus Advisory Group, is a Connecticut corporation owned by Defendants Tagliaferri and Cornell. (Compl. if 17) Collectively, the Complaint refers to Defendants TAG, Tagliaferri and Cornell as the “TAG Defendants.”

Plaintiffs now contend that the ‘TAG Defendants” began “scamming” Plaintiffs in mid-2007 by liquidating their more conservative investments and transferring Plaintiffs’ funds to TAG-affiliated companies through convertible note instruments. See Compl. ii 61. The notes were “mostly drafted” by Defendant Feiner. Id. According to Plaintiffs, these notes, while appearing legitimate, were 11 a fiction designed by the TAG Defendants and Feiner to defraud the Plaintiffs. 11 Id. Plaintiffs contend that pursuant to the terms of the notes, TAG was the payee and TAG-affiliated companies were the makers, purportedly responsible for repaying TAG the principal due plus interest on the maturity date. However, the Complaint alleges that the notes were drafted so that Plaintiffs were not the payees, limiting their ability to recover against the makers. Id.

Defendant Feiner was TAG’s legal counsel, and according to Plaintiffs, “mostly drafted” certain of the convertible note instruments through which Plaintiffs’ funds were transferred to TAG-related companies. In addition, Plaintiffs contend that Feiner was responsible for wiring Plaintiffs’ funds to the TAG-affiliated ~ompanies, including the IEAH Defendants. These allegations are all pleaded “on information and belief.” See Compl. if 81. Based on these allegations, Plaintiffs assert four claims against Feiner – legal malpractice, aiding and abetting breach of fiduciary duty, unjust enrichment, and fraud. Feiner now seeks dismissal of each of these claims pursuant to CPLR 321 l(a)(S) and (a)(7).  In addition, Feiner contends that Plaintiffs’ aiding and abetting and fraud claims are not pleaded with the requisite specificity under CPLR 3016(b). Each of Finer’s arguments will be examined in turn below

Even if timely brought, Plaintiffs legal malpractice claim nonetheless would be dismissed for failure to state a cause of action. “A cse for legal malpractice cannot be stated in the absence of an attorney-client relationship.” Waggoner, 68 A.D.3d at 5. However, Plaintiffs here fail to plead that they had such a relationship with Defendant Feiner. As discussed above, Plaintiffs’ legal malpractice claim stems from Feiner’s representation of TAG in drafting the convertible notes. Since Feiner did not represent Plaintiffs and was performing services only on behalf of TAG, no attorney-client relationship has been stated. See Federal Ins. Co. v. North American Specialty Ins. Co., 47 A.D.3d 52, 59 (1st Dep’t 2007) (“New York courts impose a strict privity requirement to claims of legal malpractice; an attorney is not liable to a third party for negligence in performing services on behalf of his client. 11 )”

Client is in a divorce and really wishes the other spouse to pay legal fees.  Matrimonial is settled, and the settlement allocution establishes that no attorney fees were to be paid.  Client nevertheless sues for this failure as well as overbilling. Here is what happened in  Tanenbaum v Molinoff  2014 NY Slip Op 04186 [118 AD3d 774]  June 11, 2014  Appellate Division, Second Department.

“Here, the defendant established that he was entitled to the dismissal of the first cause of action, which alleged legal malpractice, pursuant to CPLR 3211 (a) (1) and (7). Contrary to the plaintiff’s contentions, the complaint in this action, as well as certain documentary evidence before the Supreme Court, including, inter alia, a portion of the settlement agreement between the plaintiff and his former wife, conclusively established as a matter of law that, under the terms of the settlement agreement (see generally Trinagel v Boyar, 99 AD3d 792, 792 [2012]; Matter of Berns v Halberstam, 46 AD3d 808, 809 [2007]), the plaintiff was not entitled to an award of an attorney’s fee in the proceeding against his former wife before the Family Court (see Matter of Tanenbaum v Caputo, 81 AD3d 839[2011]), and that the defendant therefore did not commit malpractice in failing to obtain an award of an attorney’s fee in that proceeding. Moreover, the retainer agreement between the parties here conclusively refuted any claim based on the plaintiff’s allegation that the defendant assured him that the plaintiff’s former wife would be responsible for the payment of all legal fees in that proceeding. Accordingly, the Supreme Court properly granted that branch of the defendant’s motion which was to dismiss the first cause of action pursuant to CPLR 3211 (a) (1) and (7).

Contrary to the Supreme Court’s determination, however, the plaintiff’s second cause of action, which alleged breach of contract and sought to recover $5,875 in damages, representing the amount he had paid to the defendant, based on, inter alia, overbilling, was not necessarily duplicative of the first cause of action (see O’Connor v Blodnick, Abramowitz & Blodnick, 295 AD2d 586, 587 [2002]). Moreover, while the court concluded that the plaintiff could seek these damages as a counterclaim in the separate action commenced by the defendant (see Molinoff v Tanenbaum, 118 AD3d 761 [2014] [decided herewith]), at the time the order appealed from was issued, that action had been dismissed. Accordingly, we modify the order by deleting the provision thereof granting that branch of the defendant’s motion which was to dismiss the second cause of action, which was to recover $5,875 in damages for breach of contract, and substituting therefor a provision denying that branch of the motion.”

When a client has multiple remedies, such as personal injury, wrongful death, pain and suffering, as well as workers’ compensation, sometimes the attorneys focus on one to the detriment of another remedy.  Such is what seems to have happened in Lirano v Grimble & Logudice, LLC    2014 NY Slip Op 32346(U)   September 3, 2014  Supreme Court, New York County  Docket Number: 154676/2013  Judge: Eileen A. Rakower.  The law firm took on a case in which decedent died while working.  Some two years and 5 days later the law firm rejected the case.  Problem?  No WC case started within the 2 year time limit.  Legal Malpractice?  We don’t know yet.  Right now, the parties are skirmishing over discovery.  More answers later.

“As alleged in the Verified Complaint, Decedent suffered injuries in an accident while working on December 21, 2010, at 175 East 96 th Street, New York, New York 10128, and died on December 23, 2010 as a result of his injuries. Plaintiff retained Defendants to “investigate and advise her with respect to all potential claims relating to the accident of December 23, 2010 and Mr. Pena’s death.” The Complaint alleges, by letter dated December 28, 2012, G&L “rejected the case without commencing a lawsuit or filing a Workers’ Compensation claim on behalf of the decedent, Eduardo Pena, or his estate.” It further alleges, “Pursuant to the applicable statute, a Workers Compensation claim must be filed within two (2) years. Therefore, the decedent and/or his estate are precluded from filing a Workers’ Compensation claim as a result of the accident of December 21, 2010.” Plaintiff claims that Defendants were negligent “in not advising the administratrix that the estate had a viable Workers’ Compensation claim; in not informing her that a Workers’ Compensation claim had to be commenced within two (2) years of the date of the accident and in failing to refer her to a lawyer and/or firm that focused on Workers’ Compensation claims and in failing to advise her to consult with a lawyer and/or firm that focused on Workers’ Compensation claims,” and resulting damages. In its Answer, G&L denies that the injuries sustained by Pena on the date of the incident was the sole factor causing Pena’s death because Pena had preexisting medical conditions. Furthermore, G&L contends Decedent was intoxicated at an after-hours Christmas party when the injury occurred, which would not be covered by Workers’ Compensation. G&L further contends that (1) Plaintiff failed to state a cause of action; and (2) Plaintiff was aware that G&L was retained solely with regard to an action based upon negligence of others, and not with respect to a Workers’ Compensation claim. ”

“Wherefore, it is hereby ORDERED that Defendant’s motion is granted to the extent that Plaintiff is directed to supplement Plaintiffs Bill of Particulars with respect to the paragraphs of G&L’s Demand for a Bill of Particulars as referenced above and to produce outstanding discovery that is requested in Defendant’s First Notice for Discovery and Inspection; and it is further ORDERED that Plaintiffs cross motion for a protective order is granted only to the extent that Plaintiff need not supplement any other portions of its Bill of Particulars not identified above. “

Here is a story which has happened all too often in the past 20 years.

“The plaintiff and the defendant, an attorney licensed in New York, met in or about 2001, when the plaintiff sought the defendant’s legal representation. The parties established a business relationship, which later evolved into a friendship. In 2007, upon the defendant’s recommendation, the plaintiff made an investment of $260,000 in an enterprise known as Agape World (hereinafter Agape), which purportedly used investor money to provide bridge loans to businesses, and paid interest to the investors. The defendant allegedly also invested large sums of his own money in Agape. In 2008, it was revealed that Agape was, in fact, a Ponzi scheme, in which new investors’ funds were used to pay earlier investors’ returns. The plaintiff and the defendant allegedly lost their investments in Agape.”

In Biberaj v Acocella   2014 NY Slip Op 06165 [120 AD3d 1285]  September 17, 2014  Appellate Division, Second Department ( an often cited case), the Appellate Division almost completely realigned the causes of action which were either dismissed or left alone by Supreme  Court.

“Ordered that the order is modified, on the law, (1) by deleting the provision thereof granting that branch of the motion which was for summary judgment dismissing the cause of action to recover damages for legal malpractice, and substituting therefor a provision denying that branch of the motion, and (2) by deleting the provisions thereof denying those branches of the motion which were for summary judgment dismissing the causes of action to recover damages for fraud and breach of contract, and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The plaintiff and the defendant, an attorney licensed in New York, met in or about 2001, when the plaintiff sought the defendant’s legal representation. The parties established a business relationship, which later evolved into a friendship. In 2007, upon the defendant’s recommendation, the plaintiff made an investment of $260,000 in an enterprise known as Agape World (hereinafter Agape), which purportedly used investor money to provide bridge loans to businesses, and paid interest to the investors. The defendant allegedly also invested large sums of his own money in Agape. In 2008, it was revealed that Agape was, in fact, a Ponzi scheme, in which new investors’ funds were used to pay earlier investors’ returns. The plaintiff and the defendant allegedly lost their investments in Agape.

[*2] In July 2009, the plaintiff commenced the instant action to recover damages for fraud (first cause of action), breach of fiduciary duty (second cause of action), negligence (third cause of action), money had and received (fourth cause of action), legal malpractice (fifth cause of action), based on a constructive trust (sixth cause of action), and for breach of contract (seventh cause of action). After issue was joined, the defendant moved for summary judgment dismissing the complaint. The Supreme Court granted those branches of the defendant’s motion which were for summary judgment dismissing the causes of action to recover damages for breach of fiduciary duty, negligence, and legal malpractice, and denied the remaining branches of the motion. The defendant appeals and the plaintiff cross-appeals from stated portions of this order.

To recover damages for legal malpractice, a plaintiff must prove the existence of an attorney-client relationship (see Berry v Utica Natl. Ins. Group, 66 AD3d 1376 [2009]; Rechberger v Scolaro, Shulman, Cohen, Fetter & Burstein, P.C., 45 AD3d 1453 [2007]; Moran v Hurst, 32 AD3d 909, 910 [2006]). A plaintiff is also required to establish that the defendant 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 Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Gershkovich v Miller, Rosado & Algios, LLP, 96 AD3d 716, 717 [2012]). “To succeed on a motion for summary judgment dismissing the complaint in a legal malpractice action, the defendant must present evidence in admissible form establishing that the plaintiff is unable to prove at least one essential element of his or her cause of action alleging legal malpractice” (Scartozzi v Potruch, 72 AD3d 787, 789-790 [2010]; see Gershkovich v Miller, Rosado & Algios, LLP, 96 AD3d at 717).

Here, in support of that branch of his motion which was for summary judgment dismissing the cause of action to recover damages for legal malpractice, the defendant met his prima facie burden of establishing that he had no attorney-client relationship with the plaintiff referable to the plaintiff’s investment in Agape (see Volpe v Canfield, 237 AD2d 282, 283 [1997]). In opposition, however, the plaintiff raised a triable issue of fact as to the existence of an attorney-client relationship in that context. Moreover, with regard to this cause of action, the defendant failed to show, prima facie, that he exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession in allegedly advising the plaintiff regarding Agape, or that the alleged breach of this duty did not proximately cause the plaintiff to sustain damages. Accordingly, the Supreme Court should have denied that branch of the defendant’s motion which was for summary judgment dismissing the cause of action to recover damages for legal malpractice.

The Supreme Court should have granted those branches of the motion which were for summary judgment dismissing the causes of action to recover damages for fraud and breach of contract as duplicative of the cause of action to recover damages for legal malpractice, because they arose from the same facts as the legal malpractice cause of action, and do not allege distinct damages”

Some of the largest law firms in New York are the personal injury giants Jacoby & Meyers LLP and Finkelstein & Partners.  All across upstate New York, wherever there are cars and personal injuries, you’ll find their offices.  One of the institutional problems of the personal injury world is the expense of litigation.  Smaller firms act as banks for their clients.  The firm advances court costs, medical record costs, deposition transcript costs…you get the picture.  Jacoby has its own inhouse bank, which lends money to the client.  This shifts the ultimate cost of credit to the client and away from the law firm.

Rodriguez v Jacoby & Meyers, LLP   2015 NY Slip Op 02427   Decided on March 24, 2015  Appellate Division, First Department is a case which investigates this practice.  Is it proper?  Does it violate contingent fee rules?  Is it deceit ?

The answer to deceit is no.  The balance remains unanswered.

“As to the cause of action for breach of fiduciary duty based on over-billing, the record does not permit a finding as a matter of law as to whether the expenses billed by defendants Total Trial Solutions, LLC (TTS) and Cinetrial Solutions, LLC (CTS), providers of litigation support services, were authorized and were reasonable, since issues of fact exist whether defendant Jacoby & Meyers’s guidelines for the provision of litigation support services were followed and whether TTS and CTS provided services in excess of what had been deemed necessary.

The record does not permit summary dismissal of the complaint on the ground of unclean hands since, in addition to the above-cited issues of fact as to the following of the guidelines for litigation support services, issues of fact exist as to which individual or individuals at Jacoby & Meyers were responsible for litigating the case and for reviewing and approving the litigation support services.

As to the breach of fiduciary duty claim based on a conflict of interest, the retainer agreement clearly disclosed that attorneys had a financial interest in TTS and CTS, and advised plaintiff to seek an independent attorney’s opinion on the issue of case expenses if she felt the need (see generally Halevi v Fisher, 81 AD3d 504 [1st Dept 2011], lv denied 16 NY3d 711 [2011]). Plaintiff presented no evidence either that she had difficulty with English (indeed, her[*2]deposition testimony in English reflects no such difficulty) or that her injury rendered her unable to understand the agreement she signed.

For the same reasons, plaintiff’s contention that defendants committed fraud by omission by concealing their conflict of interest from her is unavailing. Nor does the retainer agreement’s language of “potential” conflict of interest render the disclosure less clear.

As to the breach of fiduciary duty claim based on the alleged filing of an improper retaining lien, it has not been determined whether defendants were discharged for cause (see Teichner v W & J Holsteins, 64 NY2d 977 [1985]; Eighteen Assoc. v Nanjim Leasing Corp., 297 AD2d 358 [2d Dept 2002]).

There is no evidence that defendants engaged in misconduct constituting a violation of Judiciary Law § 487 (see e.g. Lifeline Funding, LLC v Ripka, 114 AD3d 507, 508 [1st Dept 2014]).”

Outgoing Supreme Court Justice Milton Tingling gave short shrift to Plaintiff’s argument that Defense counsel had committed a violation of Judiciary Law § 487.  The judge let plaintiff know that enough was enough on this “perjury” thing.  Anyway, read it in  Manhattan Telecom. Corp. v Jackson  2014 NY Slip Op 32053(U)   February 24, 2014   Sup Ct, New York County   Docket Number: 111319-2010  Judge: Milton A. Tingling

 

“The plaintiff moves for an Order seeking the recusal of this Court from the action, and pursuant to CPLR 2221 leave to renew and reargue a prior motion by movant and upon such renewal and/or reargument granting the relief sought and granting such other further and different relief as to this Court may seem just. This Court has made errors in this case. One was being led to believe, after an on off the record conversation with plaintiffs’ counsel in open court that this matter was over. Second, the defendants motion to dismiss the first amended complaint filed in July 2011 should have been granted. As previously stated, this entire matter stems from plaintiffs’ counsel’s fixation on the alleged perjury by defendant in connection with a motion to change venue in a prior action. That action was Manhattan Telecommunications Corp. v. Beauty Pools, Inc., 116386-2008 in which Rachel Jackson was counsel for defendant.

Plaintiffs’ counsel alleged she perjured herself in bringing the motion pursuant to CPLR 511.  The word has consumed this litigation ever since. Perjury, perjury, perjury. Special Affirmation by (Mr. Bachrach) as to perjury by Defendants and Affirmation entitled Perjury or Betrayal. Although the Motion was DENIED, Mr.  Bachrach was incensed. He brought an action against Jackson individually alleging a violation of .Judiciary Law 487. Although the underlying case was settled for less than the minimum monetary jurisdiction of this court, Mr. Bachrach has pursued this action like Sherman marching to the sea. Ignoring the diatribes, monologues, accusations and verbal attacks, the rub here is that there is no action to go forward. Although couched in the language of a .Judiciary Law 487 action, this case is about alleged perjury. As a general rule, there is no civil cause of action for perjury in the State of New York. See Newin Corp. v Hartford Accident and Indemnification Co. 37 N.Y.S.2d 211 and Aufrichtig etc v Lowell 85 N.Y.S.2d 540.

The amended complaint alleges a violation of Judiciary Law sect 487 in that based upon the prior change of venue motion Defendant was guilty of deceit and consented to deceit or collusion with intent to deceive the Court and Plaintiff. .Judiciary Law sect 487 states a cause of action against an attorney who is guilty of any deceit or collusion, or consents to any deceit or collusion with intent to deceive the court or any party.

The application of 487 is constricted to cases where the defendant is found to have intentionally engaged in a chronic, extreme pattern of delinquency, See Havel v Islam  A.D.2 210 and .Jaroslawicz v Cohen 12A.D.3d 160, 161. Here, assuming the allegations of the complaint to be true the Court finds as a matter of law the complaint does not establish  a chronic extreme pattern of delinquency.

Plaintiff is a victim of a rear-end collision.  The case ends up with a victory for plaintiff, but he sues his attorneys on the theory that they waited too long to move for summary judgment.  Plaintiff alleges that he lost 6 years of interest.  By his calculation he lost 54% of the value of the case.  Can this be legal malpractice?  Yes.  Did Plaintiff support his allegations with sufficient factual material?  No.

Rodriguez v Jacoby & Meyers, LLP  2015 NY Slip Op 02151  Decided on March 19, 2015  Appellate Division, Third Department is an example of analysis in a CPLR 3211 case.  The Courts must afford the complaint a liberal construction, but the favorable treatment is not limitless.

“Turning to the merits, the standard to be applied on a motion to dismiss for failure to state a cause of action is both familiar and well settled — “we must afford the complaint a liberal construction, accept as true the allegations contained therein, accord the plaintiff the benefit of every favorable inference and determine only whether the facts fit within any cognizable legal theory” (He v Realty USA, 121 AD3d 1336, 1339 [2014] [internal quotation marks and citations omitted]; see Snyder v Brown Chiari, LLP, 116 AD3d 1116, 1117 [2014]). That said, the “favorable treatment” accorded to a plaintiff’s complaint is not “limitless” (Tenney v Hodgson Russ, LLP, 97 AD3d 1089, 1090 [2012]) and, as such, “conclusory allegations — claims consisting of bare legal conclusions with no factual specificity — are insufficient to survive a motion to dismiss” (Godfrey v Spano, 13 NY3d 358, 373 [2009]; accord Barnes v Hodge, 118 AD3d 633, 633 [2014]; see Wiggins & Kopko, LLP v Masson, 116 AD3d 1130, 1131-1132 [2014]).

“In order to sustain a claim for legal malpractice, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action but for the attorney’s negligence” (Leder v Spiegel, 9 NY3d 836, 837 [2007], cert denied sub nom. Spiegel v Rowland, 552 US 1257 [2008] [internal quotation marks and citation omitted]; accord Hyman v Schwartz, 114 AD3d 1110, 1112 [2014], lv dismissed 24 NY3d 930 [2014]; see MacDonald v Guttman, 72 AD3d 1452, 1454-1455 [2010]). Although the parties debate whether the decision to bring a summary judgment motion and/or the timing thereof can give rise to a claim for legal malpractice in the first instance (see e.g. Siracusa v Sager, 105 AD3d 937, 938-939 [2013]; Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 846-847 [2012], lv denied20 NY3d 857 [2013]; Hand v Silberman, 15 AD3d 167, 167 [2005], lv denied 5 NY3d 707 [2005]; Palazzolo v Herrick, Feinstein, LLP, 298 AD2d 372, 372-373 [2002]) and, further, whether plaintiff’s damages — in the absence of a final judgment in the underlying personal injury action — are speculative, these issues need not detain us.

To survive defendants’ motion to dismiss, it was incumbent upon plaintiff to, among other things, “plead specific factual allegations establishing that but for counsel’s deficient representation, there would have been a more favorable outcome to the underlying matter” (Dweck Law Firm v Mann, 283 AD2d 292, 293 [2001]; see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 758 [2014]; Tortura v Sullivan Papain Block McGrath & Canavo, P.C., 21 AD3d 1082, 1083 [2005], lv denied 6 NY3d 701 [2005]), i.e., an earlier — and successful — award of partial summary judgment on the issue of liability. This plaintiff failed to do. Noticeably absent from both plaintiff’s complaint and the bills of particulars submitted in opposition to defendants’ motion to dismiss are any factual allegations to support plaintiff’s claim that defendants’ failure to file a motion for partial summary judgment on his behalf prior to December 2009 constituted legal malpractice. Specifically, plaintiff failed to delineate, among other things, the general course and defendants’ overall management of the personal injury action, including when discovery was undertaken and/or completed or whether there were ongoing settlement discussions prior to the filing of the underlying motion. Rather, plaintiff simply alleged — in an entirely conclusory fashion — that “the [subject] motion could have been made at any time once issue was joined” in April 2003. While this theoretically is true (see CPLR 3212 [a]), absent detailed factual allegations documenting the efforts undertaken by defendants over the course of the ensuing six years and the manner in which the litigation progressed, plaintiff simply cannot establish that, had the motion for partial summary judgment been brought prior to December 2009, it would have been successful (compare Fielding v Kupferman, 65 AD3d 437, 441-442 2009]). This absence of proof is fatal to plaintiff’s malpractice claim and, therefore, Supreme Court properly granted defendants’ motion to dismiss upon this ground.”

The Second Department rarely reverses Supreme Court’s grant of Summary Judgment to the attorneys in a legal malpractice case, but Smith v Kaplan Belsky Ross Bartell, LLP  2015 NY Slip Op 02108  Decided on March 18, 2015  Appellate Division, Second Department is one example.

“The plaintiffs were former executives of Odyssey Pictures Corporation (hereinafter Odyssey) and members of its Board of Directors. Upon their departure from Odyssey, the plaintiffs were given an agreement pursuant to which Odyssey promised to indemnify them in future litigation arising out of their tenure with Odyssey. At some point thereafter, the plaintiffs were sued for actions arising during their tenure with Odyssey. The plaintiffs allegedly evaluated their likelihood of being indemnified by Odyssey and based their litigation strategy in that action upon their belief that they would be indemnified by Odyssey for their litigation costs. At the end of the litigation against them, the plaintiffs sought approximately $455,000 in indemnification from Odyssey, at which time the plaintiffs learned that Odyssey did not have the assets portrayed in the financial reports prepared by Odyssey’s accountants, Want & Ender. In or about February 2004, the plaintiffs retained the defendants to prosecute an action against Want & Ender, and in or about April and June 2004, Want & Ender was served with a summons and notice. Want & Ender failed to answer or appear. However, the defendants did not move for a default judgment in the plaintiffs’ favor and against Want & Ender within a year of that default and, instead, moved for that relief about three years later. The plaintiffs’ action against Want & Ender was ultimately dismissed as abandoned.

The plaintiffs then commenced this action against the defendants, seeking, inter alia, to recover damages for legal malpractice. The defendants moved for summary judgment dismissing the complaint. The Supreme Court granted the motion, and the plaintiffs appeal.

We reject the plaintiffs’ contention that the Supreme Court erred in considering the defendants’ motion for summary judgment on the merits. Although the defendants failed to annex their answer to their initial moving papers, the problem was rectified when an answer was annexed to the reply affirmation of their counsel (see CPLR 2001; Avalon Gardens Rehabilitation & Health Care Ctr., LLC v Morsello, 97 AD3d 611). The plaintiffs suffered no prejudice, since the Supreme Court considered the plaintiffs’ surreply.

The defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging legal malpractice (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). While the defendants argue that the plaintiffs could not have recovered on their action against Want & Ender because the plaintiffs were not in privity or near privity with Want & Ender (see Health Acquisition Corp. v Program Risk Mgt., Inc., 105 AD3d 1001, 1003; Barrett v Freifeld, 64 AD3d 736, 738), their submissions failed to eliminate all triable issues of fact with respect to this issue (cf. Security Pac. Bus. Credit v Peat Marwick Main & Co., 79 NY2d 695, 702). In support of their motion, the defendants submitted, inter alia, the deposition testimony of the plaintiffs, who testified as to when and how they relied on the improperly prepared financial reports, and explained why they believed that the accountants knew or should have known that the plaintiffs would be relying on the prepared financial reports. Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging legal malpractice, that branch of the defendants’ motion should have been denied, regardless of the sufficiency of the papers submitted in opposition (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853; Delollis v Margolin, Winer & Evens, LLP, 121 AD3d 830).”