There are a lot of law firms that take on medical malpractice cases.  In the past, medical malpractice litigation was more lucrative than it is today.  At one time, attorneys were permitted a 33.3% fee. Now, it is on a lower sliding scale.  At one time physicians were willing to testify at trial for a more reasonable fee.  Today, some expert fees are astronomical.  This has seemingly led to a situation in which med mal lawfirms take on cases, look at them for a while, do the discovery, and then when the case will not settle at the end of depositions, dump the case.  Often, they say that they were unable to "find" an expert.  Sometimes that means that they were unwilling to utilize an expert.

In Snyder v Brown Chiari, LLP  2014 NY Slip Op 02363 [116 AD3d 1116]  April 3, 2014  Appellate Division, Third Department the law firm tried to be relieved near the end of litigation, and failed.  They said that no expert could be found.  The doctors then successfully move to dismiss.  Was this legal malpractice?

"Plaintiff stated a cause of action for legal malpractice. Elements of such a cause of action include "establish[ing] 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" (AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007] [citations omitted] accord Alaimo v McGeorge, 69 AD3d 1032, 1034 [2010]). In the procedural context of a motion to dismiss for failure to state a cause of action, "the court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference" (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). "Whether the plaintiff will ultimately be successful in establishing those allegations is not part of the calculus" (Landon v Kroll Lab. Specialists, Inc., 22 NY3d 1, 6 [2013] [internal quotation marks and citations omitted]) and "a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint" (Leon v Martinez, 84 NY2d 83, 88 [1994]).

Here, plaintiff submitted, among other things, an affidavit and attached memorandum from a physician licensed in New York. This physician had been consulted by defendants in 2003, and he produced his memorandum from such time which set forth in ample detail for purposes of opposing a motion to dismiss that plaintiff’s surgeon deviated from appropriate care. His affidavit reaffirmed that he believed there was malpractice in the treatment of plaintiff by her surgeon and, further, stated that he had been available to testify at the scheduled 2007 trial, but was never contacted by defendants. Such proof, together with the detailed allegations in the complaint, state a cause of action.

Defendants urge as an alternative ground for affirmance the collateral estoppel argument that they unsuccessfully asserted before Supreme Court. They premise this argument upon the fact that Supreme Court permitted their lien on plaintiff’s file and the line of cases which hold that "where a client does not prevail in an action brought by counsel for the value of professional services, a subsequent action by the client for malpractice is barred by collateral estoppel" (Thruway Invs. v O’Connell & Aronowitz, 3 AD3d 674, 676 [2004] see e.g. Zito v Fischbein Badillo Wagner Harding, 80 AD3d 520, 521 [2011]). Here, at the appearance regarding the lien on the file, plaintiff was, as stated by Supreme Court in its decision, "expressly prevented by [Supreme] Court from asserting any claims relative to the actual services performed by [d]efendants, and strictly limited to a discussion of the accuracy of the amount of the disbursements made by [d]efendants on her behalf." We agree with Supreme Court’s characterization of the lien dispute and, under such circumstances, further agree with Supreme Court that plaintiff did not previously have a full and fair opportunity to litigate the issue of whether defendants were negligent so as to support invoking collateral estoppel (see generally Buechel v Bain, 97 NY2d 295, 303-304 [2001], cert denied 535 US 1096 [2002]). The remaining arguments, to the extent properly before us, are academic or without merit.

"

Legal malpractice cases sometimes face a conundrum.  The three year statute of limitations is approaching, yet the case is not finished.  Attorney 1 (the potential target) is out, and Attorney 2 is continuing the case.  What does the careful plaintiff do? 

One solution (which requires the court agree) is to start the case and then stay the proceedings.  Another solution is to start the case and then conditionally dismiss without prejudice.  The worst solution is to start the case, proceed to trial and lose on the basis that there are not yet any damages.

So, Abraham v Viruet  2015 NY Slip Op 50005(U)  Decided on January 6, 2015  Appellate Term, First Department is an example of the third possiblity. 

"Giving due deference to the trial court’s findings of fact and credibility, we sustain the judgment awarded in favor of defendant dismissing plaintiff’s action insofar as it sounds in legal malpractice. Plaintiff’s trial showing, unaccompanied by any expert opinion testimony, failed to establish that the defendant-attorney’s representation of plaintiff in the two underlying matters "fell below the ordinary and reasonable skill and knowledge commonly possessed by a member of the [legal] profession" (see Fidler v Sullivan, 93 AD2d 964 [1983]). Moreover, in view of the continued pendency of one of the underlying actions, plaintiff did not and cannot establish any actual damages attributable to the malpractice alleged in connection with that matter (see Kahn Jewelry Corp v Rosenfeld, 295 AD2d 261 [2002])."

Privity in legal malpractice law is one of the major stumbling blocks.  People definitely suffer from the acts of attorneys, yet may not be in a direct contractual relationship with the attiring.  Executors and estates are one prime example, and in the past (before Schneider v. Finmann)  had almost no ability to sue the attorneys. 

Betz v Blatt  2014 NY Slip Op 02554 [116 AD3d 813]  April 16, 2014  Appellate Division, Second Department is a prime example. 

"This action, inter alia, to recover damages for legal malpractice, challenges the work performed by attorneys and law firms who represented an executor of a decedent’s estate, who was removed for cause. In his will, the decedent left the bulk of his estate to his daughters, the plaintiff [*2]and Christina Carbone-Lopez. The decedent also named his brother, Michaelangelo Carbone (hereinafter Carbone), as executor. After contested probate proceedings, including a contested accounting, Carbone’s letters testamentary were suspended and he was surcharged in excess of $1,025,000 for his looting and mismanagement of the estate. On prior appeals from orders of the Surrogate’s Court, this Court upheld those sanctions (see Matter of Carbone, 101 AD3d 866 [2012]). The plaintiff was substituted as executor.

In her capacity as executor, the plaintiff commenced this action alleging, inter alia, legal malpractice by the defendants George A. Sirignano, Jr., Enea, Scanlan & Sirignano, LLP (hereinafter together the Sirignano defendants), Arnold W. Blatt, and Anthony J. Pieragostini. Each of the defendants represented Carbone in the contested probate proceedings.

"Contrary to the Supreme Court’s factual finding, the Sirignano defendants’ retainer agreement with Carbone does not contain the phrase "administration of the estate." Both the retainer agreement and the facts as pleaded in the complaint indicate that the Sirignano defendants were retained solely to defend Carbone in the contested accounting proceeding and related matters, and were not retained to administrate the estate. Therefore, the Supreme Court erred in finding that the Sirignano defendants "under[took] a duty of undivided loyalty to the Estate and its beneficiaries." Since the documentary evidence demonstrates that the Sirignano defendants were not in privity with the estate, and because the plaintiff failed to plead specific facts tending to show that the Sirignano defendants engaged in fraud or colluded with Carbone, the plaintiff did not assert a viable cause of action against them on the estate’s behalf to recover damages for legal malpractice. Accordingly, the eleventh cause of action, which alleged legal malpractice by the Sirignano defendants, must be dismissed pursuant to CPLR 3211 (a) (see Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d at 813; Jacobs v Kay, 50 AD3d at 526-527; Chinello v Nixon, Hargrave, Devans & Doyle, LLP, 15 AD3d at 895; Conti v Polizzotto, 243 AD2d at 672). For the same reasons, the twelfth cause of action, which alleged breach of fiduciary duty by the Sirignano defendants, was properly dismissed.

This Court has held that "an attorney represents the administrators individually and not the estate itself" (Matter of Hof, 102 AD2d 591, 593 [1984], citing Matter of Schrauth, 249 App Div 847, 847 [1937], and Matter of Scanlon, 2 Misc 2d 65, 69 [Sur Ct, Kings County 1956] see Matter of Della Chiesa, 23 AD2d 562 [1965])."

Judiciary Law 487 does not have special pleading requirements as does Fraud.  It has not in the past been subject to CPLR 3016.  It is not a species of Fraud…it is the common law.  However, courts are general not friendly to JL 487 and find a plethora of ways to dismiss.  Betz v Blatt
2014 NY Slip Op 02554 [116 AD3d 813]  April 16, 2014  Appellate Division, Second Department is one such example. 

It’s an estate matter in which the first executor looted the estate and suffered a surcharge of more than $1 million.  When executor 2 comes into play, a legal malpractice case is started against the attorney for executor 1.  It falters.  The JL 487 claim is dismissed on pleading grounds.  Its the 15th cause of action.

"The Supreme Court properly dismissed the second and seventh causes of action, which alleged breach of fiduciary duty, the third, eighth, and thirteenth causes of action, which alleged fraud and breach of trust, and the fourth and ninth causes of action, which sought disgorgement and restitution of attorneys’ fees, which were all based on the same facts as the causes of action to recover damages for legal malpractice, and did not allege distinct causes of action (see Putnam County Temple & Jewish Ctr., Inc. v Rhinebeck Sav. Bank, 87 AD3d 1118, 1120 [2011] Weiss v Manfredi, 83 NY2d 974, 977 [1994] Financial Servs. Veh. Trust v Saad, 72 AD3d 1019, 1021 [2010] Mahler v Campagna, 60 AD3d 1009, 1012 [2009]). Likewise, the court properly dismissed the third, fifth, eighth, tenth, thirteenth, and fifteenth causes of action, since they were not pleaded with the requisite degree of particularity (see CPLR 3016 [b] Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009] Parekh v Cain, 96 AD3d 812, 816-817 [2012] Putnam County Temple & Jewish Ctr., Inc. v Rhinebeck Sav. Bank, 87 AD3d at 1120)."

Defendants took a very aggressive approach to a legal malpractice case, and in a turnaround, the Court awarded summary judgment to plaintiff.  One wonders what would have happened if no motion was made in the first place.

Walker v Kramer   2014 NY Slip Op 33372(U)  December 22, 2014  Supreme Court, Suffolk  County  Docket Number: 5219/07  Judge: Paul J. Baisley is a discussion of the ";law of the case," how Appellate Division decisions affect Supreme Court decision making, and what the "but for" principal of legal malpractice means.

"Plaintiff commenced this action to recover damages she allegedly suffered as a result of
defendants’ legal malpractice. By an order of this Court dated December 1 1,2007, the complaint was dismissed in its entirety as against defendants Debra L. Rubin, Esq., Gayle Rosenblum, Esq.,
Rubin and Rosenblum, PLLC, and Kramer & Rubin, PLLC (Walker v Kramer, Sup Ct, Suffolk
County, December 1 1,2007, Baisley, J., Index No. 52 19/07). Although the order dismissed the
claims against Lynne Adair Kramer, Esq. and Kramer & Rabinowitz, LLC, pursuant to CPLR
R. 321 1 (a)( 1) and (7), the Appellate Division modified the order, reinstating the legal malpractice
claims against them (Walker v Kramer, 63 AD3d 723,880 NYS2d 677 [2d Dept 20091). In its
December 1 1,2007 decision, this Court denied plaintiffs application for summary judgment,
indicating that it was premature as no answers had been filed. Discovery having been completed,
and a note of issue having been filed, defendants now move for summary judgment dismissing the
complaint. They maintain that plaintiff has not sustained any damages, thus she cannot prove her
claim for legal malpractice. Plaintiff opposes their motions and interposes a cross-motion, asking
the Court to grant leave to renew her prior summary judgment motion and upon such renewal
grant summary judgment in her favor. She claims that the Appellate Division decision (id.)
constitutes the “law of the case” as it refers to liability by reason of defendants’ legal malpractice.
On May 14,2003, by written agreement, plaintiff retained the law firm of Wachtel &
Rabinowitz to represent her in a divorce action she commenced against her former husband.
Some eleven days thereafter, Gregory Rabinowitz, Esq. merged his law practice with that of
Lynne Kramer, Esq. and formed Kramer & Rabinowitz, LLC which represented plaintiff until
March 24,2006. On April 4,2004 plaintiff entered into a stipulation settling her matrimonial
action, which was incorporated but not merged into a judgment of divorce dated November 18,
2004 and filed with the County Clerk on December 7,2004. Pertinent portions of the stipulation
of settlement stated:

Within ten (10) days from the execution of the within Stipulation, the
plaintiffs attorney shall prepare all of the necessary documents for the
defendant, to transfer his right, title and interest in and to the premises to
the Plaintiff and Defendant as “joint tenants in common” by Bargain and
Sale Deed With Covenants Against Grantors Acts, which deed and
transfer papers shall be immediately filed at the defendant’s sole cost and
expense. Plaintiffs attorney shall also prepare a Bargain and Sale Deed
With Covenants Against Grantors Acts and any additionally required
transfer documents necessary to transfer the residence from the parties as
joint tenants in common to the defendant alone, which will be executed by
the parties and held by Plaintiffs attorneys in escrow subject to the further
terms and provisions hereinafter set forth. Within 5 days from execution of
this Stipulation Defendant shall pay Plaintiffs attorneys $500 to prepare
the above deeds and shall thereafter pay the filing fees within 7 days of
presentment of the title bill [ .] "

"The parties do not dispute that plaintiffs former husband paid defendant Kramer & Rabinowitz,
LLC the $500.00 legal fee required of him for the preparation of the deeds for the marital residence as mandated by the stipulation. However, also undisputed is the fact that no deed was ever  prepared or filed by defendant Kramer & Rabinowitz, LLC in connection therewith. It appears that plaintiff’s former husband refinanced the marital premises shortly after the parties were divorced, using the proceeds to satisfy an existing mortgage and retaining approximately $800,000.00 for his own devices. Plaintiff alleges that she never received her $300,000.00 tax free equitable distribution payment from her husband and that the failure of the defendants to secure her payment by preparing and recording a deed in to her as stated in the stipulation of settlement amounted to legal malpractice for which she should be compensated."

"Although plaintiff may have received more than was originally anticipated by way of maintenance and carrying charges, there is no question but that she did not receive the equitable share of marital property to which she was entitled. Defendants’ arguments that plaintiff suffered no  damages because she was paid a “windfall” of maintenance and carrying charges is unpersuasive. Moreover, such an argument is specious and speculative. Inasmuch as plaintiff was entitled to receive a “lump sum” payment of equitable distribution, the parties could just as easily speculate that she would have invested that money and made “millions” in a business or other investment. Defendants’ failure to secure that payment cannot be set aside by their claims of “offset.” The fact that the stipulation provided for longer duration maintenance and for the payment of carrying charges by plaintiffs former husband in the event he failed to pay the “lump sum” equitable distribution award was not in lieu of the equitable distribution, but was an inducement for him to make the payment in a timely fashion. Thus, defendants failed to prove their claim that plaintiff did not sustain any damages as a result of their failure to secure the equitable distribution payment by preparing the deed as provided by the stipulation of settlement, and summary judgment dismissing the complaint is denied. "

"The Appellate Division found that there was insufficient documentary evidence submitted by defendants in support of their earlier motion to dismiss, and that the facts in the complaint stated a cause of action for legal malpractice. The Appellate Division did not, however, determine the merits of the legal malpractice claim. Thus, the doctrine of res judicata is inapplicable and does not bind this Court (see Wilson v New York City Hous. Auth., supra). However, inasmuch as plaintiff has proven through her submissions that “but for” defendants’ failure to prepare and record a deed securing her equitable distribution award, she would have been able to receive. her award through a sale of the premises prior to her former husband’s encumbering the marital residence with mortgages in excess of its value, she is entitled to summary judgment in her favor and her motion is granted. "

Legal malpractice law is quite protective of attorneys.  One institutional reason is that is is self-created and self-regulated by attorneys.  An example of the protection is the "privity" rule, which states that one may not sue an attorney for legal malpractice, with very limited exceptions, unless there is a contractual relationship between plaintiff and attorney. There must be privity of contract.

Risk Control Assoc. Ins. Group v Maloof, Lebowitz, Connahan & Oleske, P.C.  2014 NY Slip Op 00419 [113 AD3d 522]  January 23, 2014  Appellate Division, First Department is an example.

"Plaintiff, a claims administrator for an insurer, commenced this action alleging legal malpractice against defendants, who were retained to represent the insurer in a personal injury action. Acknowledging that it is not in privity with defendants, plaintiff contends that it may bring the cause of action by virtue of its relationship of near privity with them (see Federal Ins. Co. v North Am. Specialty Ins. Co., 47 AD3d 52, 59, 60-61 [1st Dept 2007]). However, plaintiff does not allege that it had a contractual obligation to pay for the loss in the personal injury action (compare Allianz Underwriters Ins. Co. v Landmark Ins. Co., 13 AD3d 172 [1st Dept 2004] [excess insurer alleged relationship of near privity with counsel hired by primary carrier to represent defendant in underlying action]). Nor does it allege that it sustained actual damages because of this obligation (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]). Similarly, plaintiff’s factual allegations do not suffice to state an equitable subrogation cause of action against defendants (see Winkelmann v Excelsior Ins. Co., 85 NY2d 577, 581 [1995]). "

A Happy New Year to all.

Napoli Kaiser Bern is a well known class action law firm that is currently said to be breaking apart with melodramatic reports of sexual escapades, lack of fidelity and general ennui.  Whether the partners will make up, or part ways, they all face some problems in the Fen-Phen litigation, as many of the clients allege that they misstated expenses, and referring attorneys claim fraud. 

In Appel-Hole v Wyeth-Ayerst Labs.  2014 NY Slip Op 33170(U)  November 21, 2014  Supreme Court, New York County  Docket Number: 105122/09  Judge: Charles E. Ramos discusses some of the pleading issues and the Judiciary Law 487 applications.

"This action arises out of the settlement of mass tort litigation known as New York Diet Drug  itigation. In the original action (Original Action) , 1 plaintiffs asserted claims of personal injury due to the ingestion of ~fen-phen" diet drugs. In November 2001, the Original Action was settled, and the settlement approved by a predecessor court, by Justice Helen Freedman. At or around this time, the concern was raised that the settlement and disbursements obtained had been  manipulated.

Shortly after approval of the settlement, P&W commenced an action against NKB alleging  misrepresentations in connection with that settlement, entitled P&W v Napoli, and bearing the index number 605388/01 (P&W Action) . This Court largely dismissed the action on the ground that P&W lacked standing to assert claims of breach of contract between the referred clients and NKB, and because it constituted a collateral attack on the settlement, which was affirmed (Parker & Waichman, 29 AD3d 396 [1st Dept 2006]). A claim for an accounting remains in the pending P&W
Action.  and misallocated by settling counsel, defendants herein, Napoli Bern & Kaiser, LLP (NKB), to clients other then those referred to by Parker & Waichman, LLP (P&W). At the time that P&W referred clients, NKB agreed to represent them and to share attorneys’ fees with P&W.

P&W alleges that NKB committed fraud to deprive it of its contractual share of attorneys’ fees, by deliberately allocating more settlement funds to its own direct clients then to comparable referred cases in order to minimize fee-splitting with P&W, and assessed bogus disbursements and expenses to the referred clients, which decreased the net settlement amount used to calculate P&W’s fees. 

The Court has reviewed the allegations contained in Exhibit A annexed to the third amended  Intervenor complaint that the intervenor defendants maintain do not meet the heightened pleading standards of CPLR 3016 (b). For instance, the third amended intervenor complaint alleges
that John Bagglio repeatedly expressed dissatisfaction with the settlement amount being offered via NKB, and requested that NKB renegotiate a better settlement offer. Nonetheless, in a series
of communications with John Bagglio, NKB misrepresented that he "had no case," that his case faced "serious consequences" if he did not return the release form and accept the settlement amount being offered, and that he would "get nothing" if his case went to court. NKB also allegedly misled him concerning the settlement procedure, how the settlement offer was arrived at, and falsely put him in fear of losing any potential recovery if he did not accept a lower settlement amount, which the complainant relied upon in accepting a low settlement amount. The allegations of the remaining intervenor plaintiffs which defendants maintain are insufficient contain either a greater or lesser level of detail, describing the manner in which the defendants misrepresented how each individual settlement was arrived at, and how plaintiffs were pressured into settling the
case based on terms which were false. Taking the allegations in the light most favorable to the
plaintiffs, the Court concludes that, under the circumstances,  sufficient facts are alleged to permit a fact-finder to infer that the intervenor defendants falsely represented how each settlement was arrived at and the settlement process itself. True, with respect to many of the complainants, intervenor plaintiffs have not alleged specific details of each individual intervenor defendants’ conduct. Nonetheless, the third amended intervenor complaint alleges the basic facts to establish the elements of fraud, and adequately informs the defendants of the complained-of incidents (see Eurycleia Partners, L.P., Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]). "

Plaintiff hires an attorney to handle a NJ accounting proceeding.  The case is dismissed on failure to engage in discovery.  The other side is granted costs and attorney fees if the case is brought once again.  Client hires attorney 2 to bring the action again.  Attorney 2 warns client of penalties which might accrue on second case.  Client goes ahead nevertheless. 

Client then sues both attorney 1 and 2.  Here are the results in  Bivona v Danna & Assoc., P.C.
2014 NY Slip Op 08948  Decided on December 24, 2014 Appellate Division, Second Department  along with    Bivona v Danna & Assoc., P.C.   2014 NY Slip Op 08947  Decided on December 24, 2014  Appellate Division, Second Department,

Legal Malpractice part of the case?  "Here, the defendants did not establish, prima facie, that the plaintiffs will be unable to prove at least one of the elements of legal malpractice (see Gershkovich v Miller, Rosado & Algios, LLP, 96 AD3d 716, 717; Bey v Flushing Hosp. Med. Ctr., 95 AD3d 1152, 1153). The defendants could not sustain their burden merely by pointing out gaps in the plaintiffs’ proof (see Kempf v Magida, 116 AD3d 736, 736; Alizio v Feldman, 82 AD3d 804, 805). Accordingly, contrary to the defendants’ contention, the Supreme Court properly denied their motion for summary judgment dismissing the complaint."

As to the Contribution and Indemnity:  ""In considering a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a)(7), the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Alva v Gaines, Gruner, Ponzini & Novick, LLP, 121 AD3d 724, 724 [internal quotation marks omitted]; see Leon v Martinez, 84 NY2d 83, 87-88). "A motion to dismiss a cause of action pursuant to CPLR 3211(a)(1) may be granted only if documentary evidence utterly refutes [the] plaintiff’s factual allegations, thereby conclusively establishing a defense as a matter of law’" (Indymac Venture, LLC v Nagessar, 121 AD3d 945, 945, quoting Whitebox Concentrated Convertible Arbitrage Partners, L.P. v Superior Well Servs., Inc., 20 NY3d 59, 63).

The Supreme Court erred in denying that branch of the motion of the third-party defendant Minchew & Santner, LLP (hereinafter M & S), which was pursuant to CPLR 3211(a)(7) to dismiss the contractual indemnification cause of action in the third-party complaint insofar as asserted against it. The defendants third-party plaintiffs Danna & Associates, P.C., and Anthony S. Danna (hereinafter together the Danna defendants) did not allege the existence of such a contractual relationship, and it is undisputed that no contractual relationship existed between the Danna [*2]defendants and M & S (see Galvin Bros., Inc. v Town of Babylon, N.Y., 91 AD3d 715, 716; see also Reimold v Walden Terrace, Inc., 85 AD3d 1144, 1146). Accordingly, the Supreme Court should have granted that branch of M & S’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the contractual indemnification cause of action in the third-party complaint insofar as asserted against it.

The Supreme Court also erred in denying that branch of M & S’s motion which was pursuant to CPLR 3211(a)(1) to dismiss the cause of action for common-law indemnification in the third-party complaint insofar as asserted against it. "The principle of common law, or implied, indemnification permits one who has been compelled to pay for the wrong of another to recover from the wrongdoer the damages it paid to the injured party" (Bedessee Imports, Inc. v Cook, Hall & Hyde, Inc., 45 AD3d 792, 796, quoting Tiffany at Westbury Condominium v Marelli Dev. Corp., 40 AD3d 1073, 1077). "Common-law indemnification is warranted where a defendant’s role in causing the plaintiff’s injury is solely passive, and thus its liability is purely vicarious" (Bedessee Imports, Inc. v Cook, Hall & Hyde, Inc., 45 AD3d at 796, quoting Balladares v Southgate Owners Corp., 40 AD3d 667, 671). "Thus, a party which has actually participated in the wrongdoing is not entitled to indemnification" (Bedessee Imports, Inc. v Cook, Hall & Hyde, Inc., 45 AD3d at 796; see 17 Vista Fee Assoc. v Teachers Ins. & Annuity Assn. of Am., 259 AD2d 75, 80). Here, the plaintiffs’ claims against the Danna defendants in the instant legal malpractice action are based upon the Danna defendants’ representation of the plaintiffs in an accounting proceeding they commenced in the Superior Court of New Jersey (hereinafter the New Jersey proceeding). In support of that branch of its motion which was pursuant to CPLR 3211(a)(1) to dismiss the Danna defendants’ cause of action for common-law indemnification in the third-party complaint insofar as asserted against it, M & S submitted copies of orders issued by the court in the New Jersey proceeding, which revealed that several claims asserted by the plaintiffs were dismissed because of the Danna defendants’ failure to conduct discovery. Those orders gave the defendants in the New Jersey proceeding the right to seek an award of costs and an attorney’s fee in the event that any of the plaintiffs commenced a new action against any of them for the same or similar relief. M & S also submitted a copy of its retainer agreement with the plaintiffs, in which M & S expressly advised the plaintiffs that the defendants in the New Jersey proceeding had the right to seek an award of costs and fees in the event a new action was commenced against them. The plaintiffs expressly acknowledged in the retainer agreement that they were nonetheless willing to retain M & S to recommence an action or proceeding against one or more of the defendants in the New Jersey proceeding. Thus, the documentary evidence submitted by M & S in support of its motion conclusively established that any liability on the part of the Danna defendants for legal malpractice was not solely passive and purely vicarious. Accordingly, the Supreme Court should have granted that branch of M & S’s motion which was pursuant to CPLR 3211(a)(1) to dismiss the cause of action for common-law indemnification in the third-party complaint insofar as asserted against it.

As to the contribution cause of action, " [i]n determining whether a valid third-party claim for contribution exists, the critical issue is whether the third-party defendant owed a duty to the plaintiff which was breached and which contributed to or aggravated plaintiff’s damages’" (Rehberger v Garguilo & Orzechowski, LLP, 118 AD3d 765, 766, quoting Rosner v Paley, 65 NY2d 736, 738; see Raquet v Braun, 90 NY2d 177, 183). " [T]he remedy may be invoked against concurrent, successive, independent, alternative and even intentional tortfeasors’" (Rehberger v Garguilo & Orzechowski, LLP, 118 AD3d at 766, quoting Raquet v Braun, 90 NY2d at 183). "A defendant attorney may seek contribution from a subsequently retained attorney, to the extent that the subsequently retained attorney’s negligence may have contributed to or aggravated the plaintiff’s injuries" (Rehberger v Garguilo & Orzechowski, LLP, 118 AD3d at 766; see Schauer v Joyce, 54 NY2d 1, 3-6; Soussis v Lazer, Aptheker, Rosella & Yedid, P.C., 66 AD3d 993, 995; cf. Northrop v Thorsen, 46 AD3d 780, 783). Contrary to M & S’s contentions, the Supreme Court properly denied those branches of its motion which were pursuant to CPLR 3211(a) to dismiss the contribution cause of action in the third-party complaint insofar as asserted against it, since the defendants third-party plaintiffs properly stated a cause of action alleging that M & S’s legal malpractice contributed to the plaintiff’s damages, and documentary evidence did not conclusively establish a complete defense to that cause of action.