In today’s New York Law Journal   Christine Simmons has a truly shocking article about a law firm discovering that one of its attorneys was sending false bills to the client.  OK, this by itself is not so shocking, but the complaint also claims that the attorney created fake orders, forged the signature of a US District Judge, and fabricated expenses.  That’s shocking.  More so, the attorney is a Nassau County legislator and is running for the  NY State.

"Davidoff Hutcher & Citron is suing one of its former attorneys, Nassau County Legislator David Denenberg, claiming he sent hundreds of fake invoices to a client and stole hundreds of thousands of dollars from the firm (See Complaint). Denenberg, a Democrat, had been running for a seat in the state Senate, using the campaign slogan, "Nobody Works Harder." After news of the suit broke Tuesday, Denenberg withdrew from the race. Denenberg led Davidoff Hutcher’s intellectual property practice in the firm’s Long Island office. Davidoff Hutcher claimed its client, Systemax, a retailer of electronics products, paid more than $2 million to satisfy the false bills. The law firm said it discovered the scheme and informed Systemax. After conducting an investigation, the firm agreed to "make full restitution" to Systemax, according to the lawsuit filed Tuesday in Manhattan Supreme Court, Davidoff Hutcher Citron v. Denenberg, 159304-2014."

"Davidoff Hutcher said it was unaware of the conduct and believed the bills represented legitimate charges. Denenberg also improperly billed and collected funds for false business expenses, the firm claims. Specifically, the suit said, Davidoff Hutcher paid him for "numerous false vouchers"  seeking reimbursement of expenses he claimed were incurred on behalf of clients. "By this conduct, defendant Denenberg stole hundreds of thousands of additional dollars directly from DHC based on his false representations that these were client expenses for which he was entitled to reimbursement," the lawsuit said. The firm claims it offered Denenberg an opportunity to explain his actions, but he refused. According to the suit, Denenberg was advised that the firm had  discovered two files for the client involving misconduct and asked if there were any others.
"Denenberg, admitting his guilt, replied ‘No.’ Unfortunately, this too was a lie, as there were many more than two files involved," according to the lawsuit, which lists six Systemax matters that involved fake invoices. The firm claims Denenberg showed no remorse, and when told he would be fired, replied "You’re going to make me go? For this?" The firm said Denenberg went to "great lengths to perpetuate the fraud," by preparing a fake order from federal court that purported to dismiss claims against the client, then signing the order in the name of a federal judge. In another case, according to the suit, Denenberg created a fake stipulated order of dismissal with prejudice of claims between a plaintiff and the client, and the order indicated it had been signed by a different district court judge.

So, why is this not a case of deceit under Judiciary Law 487?

Courts have found many ways to award attorney fees and force litigants to pay them.  Sometimes it is on the merits and sometimes litigants are the losers on technical issues.  One of the more interesting wrinkles in legal malpractice  is the question of attorney fee awards and collateral estoppel of the subsequent legal malpractice case. 

Urias v Daniel P. Buttafuoco & Assoc., PLLC,  2014 NY Slip Op 06198 Decided on September 17, 2014  Appellate Division, Second Department is a recent example.

‘The plaintiff, Delfina Urias, individually and as guardian of her husband, Manuel Urias, commenced a medical malpractice action against the healthcare professionals and providers responsible for treating him. The defendant Daniel P. Buttafuoco & Associates, PLLC (hereinafter the Buttafuoco Firm), represented the plaintiff in the underlying medical malpractice action. On April 2, 2009, shortly before the trial was to begin, the medical malpractice action was settled in open court for the sum of $3,700,000, and the liability was allocated among the various defendants in that action. On July 20, 2009, counsel for the parties to the medical malpractice action appeared before the Supreme Court, Suffolk County, in connection with a proposed change to the terms of the settlement. At that conference, the court, inter alia, approved the award of an attorney’s fee to the Buttafuoco Firm in the sum of $864,552. To calculate the attorney’s fee, the Buttafuoco Firm applied the "sliding scale" set forth in the retainer agreement and in Judiciary Law § 474-a(2) to each individual medical malpractice defendant’s settlement amount, rather than the total settlement amount, which resulted in a larger attorney’s fee for the Buttafuoco Firm. The Buttafuoco Firm later reduced its attorney’s fee to $710,000.

Meanwhile, the plaintiff retained the defendant John Newman to represent her in a proceeding in the Supreme Court, Nassau County, to appoint a guardian on behalf of Manuel Urias and to obtain approval of the settlement in the medical malpractice action. The plaintiff complained to Newman about the manner in which the Buttafuoco Firm calculated its fee. Subsequently, Newman moved for approval of the medical malpractice settlement in the guardianship proceeding. In an order dated October 27, 2009, the Supreme Court, Nassau County, among other things, denied approval of the settlement and the attorney’s fee, without prejudice to reconsideration, and directed that the issue of the Buttafuoco Firm’s attorney’s fee be revisited by the Supreme Court, Suffolk County. Newman then moved in the Supreme Court, Suffolk County, to confirm the amount of the attorney’s fee awarded to the Buttafuoco Firm. In an order dated March 24, 2010, the Supreme Court, Suffolk County, formally approved the attorney’s fee as previously calculated. Thereafter, in an order dated June 7, 2010, the Supreme Court, Nassau County, in the context of the guardianship proceeding before it, approved the settlement agreement and the attorney’s fee awarded in the malpractice action.

In 2011, the plaintiff commenced the instant action against Newman, as well as the Buttafuoco Firm, the related law firm of Daniel P. Buttafuoco, LLC, and the Buttafuoco Firm’s principal attorney, Daniel P. Buttafuoco (hereinafter collectively the Buttafuoco defendants), inter alia, to recover damages for legal malpractice. The Buttafuoco defendants and Newman separately moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them.

Moreover, the Buttafuoco defendants were not entitled to dismissal pursuant to CPLR 3211(a)(5) on the ground of collateral estoppel. Generally, the award of an attorney’s fee to an attorney necessarily establishes that there was no legal malpractice (see Izko Sportswear Co., Inc. v Flaum, 25 AD3d 534, 537; Siegel v Werner & Zaroff, 270 AD2d 119, 120). The Buttafuoco Firm established, prima facie (see Plain v Vassar Bros. Hosp., 115 AD3d 922, 923), that the issue of whether it committed legal malpractice was necessarily decided in its favor when it was awarded a fee in connection with its representation of the plaintiff in the underlying medical malpractice action (see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664; Montoya v JL Astoria Sound, Inc., 92 AD3d 736, 738). However, in opposition, the plaintiff raised a question of fact as to whether she was deprived of a full and fair opportunity to litigate the issue. Inasmuch as Newman moved, on behalf of the plaintiff, to confirm the amount of the attorney’s fee awarded to the Buttafuoco Firm, and that relief was granted, had the plaintiff attempted to appeal from that order, her appeal would have been dismissed for lack of aggrievement (see CLPR 5511; Village of Croton-on-Hudson v Northeast Interchange Ry., LLC, 46 AD3d 546, 548). Under these particular circumstances, where the plaintiff could not appeal, an issue of fact was raised as to whether she had a full and fair opportunity to litigate the issue of the alleged malpractice committed by the Buttafuoco Firm and, thus, whether she was collaterally estopped from asserting that the Buttafuoco defendants committed legal malpractice in obtaining judicial approval of the fee award (see Davidov v Searles, 84 AD3d 859, 860)."

Fees in medical malpractice were lowered many years ago in hopes of curbing the "medical malpractice plague."  Our view is that the AMA has found that there are an incredible number of medical malpractice mistakes, and that litigation is the only way for a damaged patient to obtain reasonable compensation.

Whether you agree with that position or not, it’s clear that the artificially depressed fee structure has engendered some problems for attorneys who practice in this field.  Urias v Daniel P. Buttafuoco & Assoc., PLLC  2014 NY Slip Op 06198  Decided on September 17, 2014  Appellate Division, Second Department is one example.  Matter of Harley, 298 AD2d 49 (2002) and Matter of Cousins, 2010 NY Slip Op 07413 [80 AD3d 99] are others.

In  Urias, "The plaintiff, Delfina Urias, individually and as guardian of her husband, Manuel Urias, commenced a medical malpractice action against the healthcare professionals and providers responsible for treating him. The defendant Daniel P. Buttafuoco & Associates, PLLC (hereinafter the Buttafuoco Firm), represented the plaintiff in the underlying medical malpractice action. On April 2, 2009, shortly before the trial was to begin, the medical malpractice action was settled in open court for the sum of $3,700,000, and the liability was allocated among the various defendants in that action. On July 20, 2009, counsel for the parties to the medical malpractice action appeared before the Supreme Court, Suffolk County, in connection with a proposed change to the terms of the settlement. At that conference, the court, inter alia, approved the award of an attorney’s fee to the Buttafuoco Firm in the sum of $864,552. To calculate the attorney’s fee, the Buttafuoco Firm applied the "sliding scale" set forth in the retainer agreement and in Judiciary Law § 474-a(2) to each individual medical malpractice defendant’s settlement amount, rather than the total settlement amount, which resulted in a larger attorney’s fee for the Buttafuoco Firm. The Buttafuoco Firm later reduced its attorney’s fee to $710,000.

Meanwhile, the plaintiff retained the defendant John Newman to represent her in a proceeding in the Supreme Court, Nassau County, to appoint a guardian on behalf of Manuel Urias and to obtain approval of the settlement in the medical malpractice action. The plaintiff complained to Newman about the manner in which the Buttafuoco Firm calculated its fee. Subsequently, Newman moved for approval of the medical malpractice settlement in the guardianship proceeding. In an order dated October 27, 2009, the Supreme Court, Nassau County, among other things, denied approval of the settlement and the attorney’s fee, without prejudice to reconsideration, and directed that the issue of the Buttafuoco Firm’s attorney’s fee be revisited by the Supreme Court, Suffolk County. Newman then moved in the Supreme Court, Suffolk County, to confirm the amount of the attorney’s fee awarded to the Buttafuoco Firm. In an order dated March 24, 2010, the Supreme Court, Suffolk County, formally approved the attorney’s fee as previously calculated. Thereafter, in an order dated June 7, 2010, the Supreme Court, Nassau County, in the context of the guardianship proceeding before it, approved the settlement agreement and the attorney’s fee awarded in the malpractice action.

In 2011, the plaintiff commenced the instant action against Newman, as well as the Buttafuoco Firm, the related law firm of Daniel P. Buttafuoco, LLC, and the Buttafuoco Firm’s principal attorney, Daniel P. Buttafuoco (hereinafter collectively the Buttafuoco defendants), inter alia, to recover damages for legal malpractice. The Buttafuoco defendants and Newman separately moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them."

"Here, construing the complaint liberally, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, as we are required to do, the plaintiff stated a cause of action to recover damages for legal malpractice against Newman and the Buttafuoco defendants (see Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 AD3d at 589; Palmieri v Biggiani, 108 AD3d 604, 608). Newman’s contention, in effect, that his failure to object to the attorney’s fee awarded to the Buttafuoco Firm was not a proximate cause of the plaintiff’s damages, and that he did not depart from the accepted standard of care, concern disputed factual issues that are not properly resolved on a motion to dismiss the complaint pursuant to CPLR 3211(a)(7)."

Plaintiff alleges that defendant "caused an action to be commenced against the plaintiff and a preclusion order to be entered against him in that action, and that they failed to assert the defenses of laches and statute of limitations in the underlying action."  Unfortunately for plaintiff, the Appellate Division determined that he was unable to show that the case would have come out better had the attorney adopted some other tactic. 

In Leiner v Hauser  2014 NY Slip Op 06180  Decided on September 17, 2014  Appellate Division, Second Department it was alleged that the attorney "caused" a case to be started against plaintiff, and then failed to plead certain defenses.  The Appellate Division dismissed. 

"Here, the Supreme Court should have granted that branch of the motion of the defendants Estate of Noel Hauser and Noel Hauser & Associates (hereinafter together the appellants) which was pursuant to CPLR 3211(a) to dismiss so much of the complaint insofar as asserted against them as was premised upon allegations that they caused a preclusion order to be entered against the plaintiff in an underlying action. Viewing the complaint in the light most favorable to the plaintiff, it fails to plead specific factual allegations showing that, but for the appellants’ alleged negligence in causing the preclusion order to be entered, the plaintiff would have obtained a more favorable outcome in the underlying action (see CPLR 3211[a][7]; Benishai v Epstein, 116 AD3d 726, 728; Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d 812, 813; Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d at 1083).

Furthermore, the Supreme Court should have granted that branch of the appellants’ motion which was pursuant to CPLR 3211(a) to dismiss so much of the complaint insofar as asserted against them as was premised upon allegations that they caused an action to be commenced against the plaintiff, and that they failed to assert the defenses of laches and statute of limitations in that action. With respect to these allegations, viewing the complaint in the light most favorable to the plaintiff, it fails to set forth facts sufficient to allege that the appellants’ alleged failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession proximately caused the plaintiff actual and ascertainable damages (see CPLR 3211[a][7]; Held v Seidenberg, 87 AD3d at 617)."

Everyone in this case came out badly.  Attorney represented client, became friends with client, gave financial advice to client, invested with client, lost money in a Ponzi scheme with client.  Now, client survives a summary judgment decision against his former friend/attorney/investment partner.

Biberaj v Acocella  2014 NY Slip Op 06165  Decided on September 17, 2014  Appellate Division, Second Department  is the underlying decision for this story.  "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."

"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). 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

"

We often muse that absolute rules depress creative thinking.  As an example, the well recognized rule is that legal malpractice cases always require an expert for plaintiff.  However, is this true?

Board of Mgrs. of Bridge Tower Place Condominium v Starr Assoc. LLP  2013 NY Slip Op 07684 [111 AD3d 526]    November 19, 2013  Appellate Division, First Department  tells us, "not always."

"This Court previously held that the stipulation drafted by defendants unambiguously stripped plaintiff of its right to amend its bylaws to attain a specific result in connection with the underlying action (see Luzzi v Bridge Tower Place Condominium, 52 AD3d 290 [1st Dept 2008]). Under those circumstances, no expert testimony was necessary to establish that defendants’ conduct fell below the standards of the profession generally (see S & D Petroleum Co. v Tamsett, 144 AD2d 849, 850 [3d Dept 1988]). Because the alternative to the stipulation was not, as defendants contend, to litigate the underlying action, but for plaintiff to exercise its right to amend the bylaws immediately, the motion court did not err in finding "but for causation" as a matter of law (cf. Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271-272 [1st Dept 2004]).

Furthermore, although plaintiff’s president is an attorney, and did see drafts of the stipulation, the record does not raise a triable issue as to whether he arrogated to himself the role of drafting the stipulation, or micro-managed the negotiation. Rather, the record shows that plaintiff relied on counsel to effect the strategy of preserving in the stipulation the right to amend the bylaws. Accordingly, the defenses of comparative fault were properly dismissed (see Mandel, Resnik & Kaiser, P.C. v E.I. Elecs., Inc., 41 AD3d 386 [1st Dept 2007]). Concur—Andrias, J.P., Friedman, Richter, Manzanet-Daniels and Feinman, JJ."This Court previously held that the stipulation drafted by defendants unambiguously stripped plaintiff of its right to amend its bylaws to attain a specific result in connection with the underlying action (see Luzzi v Bridge Tower Place Condominium, 52 AD3d 290 [1st Dept 2008]). Under those circumstances, no expert testimony was necessary to establish that defendants’ conduct fell below the standards of the profession generally (see S & D Petroleum Co. v Tamsett, 144 AD2d 849, 850 [3d Dept 1988]). Because the alternative to the stipulation was not, as defendants contend, to litigate the underlying action, but for plaintiff to exercise its right to amend the bylaws immediately, the motion court did not err in finding "but for causation" as a matter of law (cf. Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271-272 [1st Dept 2004]).

Furthermore, although plaintiff’s president is an attorney, and did see drafts of the stipulation, the record does not raise a triable issue as to whether he arrogated to himself the role of drafting the stipulation, or micro-managed the negotiation. Rather, the record shows that plaintiff relied on counsel to effect the strategy of preserving in the stipulation the right to amend the bylaws. Accordingly, the defenses of comparative fault were properly dismissed (see Mandel, Resnik & Kaiser, P.C. v E.I. Elecs., Inc., 41 AD3d 386 [1st Dept 2007]). Concur—Andrias, J.P., Friedman, Richter, Manzanet-Daniels and Feinman, JJ.

This intra-family dispute pitted brother against brother and mother against son for control of a very close corporation.  When the case was settled, one party had not successfully analyzed the potential tax liabilities and sue the attorney.

Benishai v Epstein  2014 NY Slip Op 02404 [116 AD3d 726]  April 9, 2014  Appellate Division, Second Department examines what happens when you win the case, but the results are more difficult than you expected.

"In 2004, the plaintiff, as attorney-in-fact for his mother, Bella Benishai (hereinafter Bella), commenced an action in the Supreme Court, New York County (hereinafter the New York County action), against his brother, David Benishai (hereinafter David). The plaintiff, inter alia, alleged that David had mismanaged the corporate funds of Ilan Properties, Inc. (hereinafter Ilan), a corporation in which, at that time, Bella and David were each 50% shareholders. Ilan’s primary assets were two residential properties located on West 76th Street in Manhattan. After commencing the New York County action against David, the plaintiff retained the defendant attorney to represent Bella, but Bella died during the pendency of that action. Nonetheless, the plaintiff apparently directed the defendant to continue the prosecution of the New York County action against David. On March 31, 2009, the plaintiff, David, Ilan, and Bella’s estate entered into a written settlement agreement, pursuant to which the plaintiff became a 50% shareholder in Ilan and agreed to release David from any claims for costs, taxes, and penalties.

In October 2011, the plaintiff commenced this legal malpractice action against the defendant, alleging, among other things, that the defendant failed to undertake an analysis of Ilan’s financial status in order to determine the plaintiff’s exposure to tax liabilities, fines, penalties, and other charges.

To recover damages in a legal malpractice action, a plaintiff must establish "that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a [*2]member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007], quoting McCoy v Feinman, 99 NY2d 295, 301, 302 [2002] see Held v Seidenberg, 87 AD3d 616, 617 [2011] Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1018 [2010]). "To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442). " ‘A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel’ " (Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083 [2005], quoting Bernstein v Oppenheim & Co., 160 AD2d 428, 430 [1990]). Nonetheless, a plaintiff’s conclusory allegations that merely reflect a subsequent dissatisfaction with the settlement, or that the plaintiff would be in a better position but for the settlement, without more, do not make out a claim of legal malpractice (see Boone v Bender, 74 AD3d 1111, 1113 [2010] Holschauer v Fisher, 5 AD3d 553, 554 [2004])."

Death of attorneys and clients is inevitable, and planning for death is one thing that is expected of attorneys.  in Cabrera v Collazo  2014 NY Slip Op 00622 [115 AD3d 147]  February 4, 2014 Tom, J. itself arising from a wrongful death case, the attorney died just weeks before plaintiff’s time to file the wrongful death complaint ended.  Can his estate be held responsible.

"The remarkable defense proffered in this professional malpractice action is that an attorney who neglects a matter so that the statute of limitations runs against his client cannot be held legally accountable if the attorney happens to expire before the applicable limitations period. A cause of action for attorney malpractice requires: " ‘(1) the negligence of the attorney; (2) that the negligence was the proximate cause of the loss sustained; and (3) proof of actual damages’ " (Kaminsky v Herrick, Feinstein LLP, 59 AD3d 1, 9 [1st Dept 2008], lv denied 12 NY3d 715 [2009], quoting Mendoza v Schlossman, 87 AD2d 606, 606-607 [2d Dept 1982]). The pleadings, as "[a]mplified by affidavits and exhibits in the record" (Crosland v New York City Tr. Auth., 68 NY2d 165, 167 [1986]), contain allegations from which these elements can be made out and, thus, state a viable cause of action so as to survive a pre-answer motion to dismiss the complaint.

The extent of the duty imposed on the attorney to commence a timely action depends on the immediacy of the running of the statutory period, and no duty will be imposed where sufficient time remains for successor counsel to act to protect the client’s interests in pursuing a claim (see Golden v Cascione, Chechanover & Purcigliotti, 286 AD2d 281 [1st Dept 2001] [defendant law firm relieved 2½ years before claim expired]). Where, as here, the expiration of the statute of limitations is imminent and the possibility that another attorney might be engaged to commence a timely action is foreclosed, there is a duty to take action to protect the client’s rights.

Plaintiff is entitled to the inference that Tanzman died as a result of a chronic, terminal illness that he knew, or should have known, presented the immediate risk that his ability to represent his clients’ interests might be impaired (see Yuko Ito v Suzuki, 57 AD3d 205, 207 [1st Dept 2008]). Here, defendants offered no evidence to elaborate on the cause or circumstances surrounding Tanzman’s death. The submitted certificate of death for Tanzman merely states that Tanzman passed away on October 24, 2010 at Memorial Sloan-Kettering Cancer Center. The record suggests that plaintiff had cancer, and that his death may have been foreseeable, but the nature and duration of his illness cannot be determined from the death certificate and defendants’ other submissions. Further, the record reflects that Tanzman was well aware that Collazo could not be relied upon to assist with plaintiff’s representation. According to Tanzman’s own statement, Collazo had done nothing on the matter in over a year, and Tanzman’s retainer agreement assigned Collazo only a limited role in the case. In any event, as of September 2010, when Tanzman expressed his concern over the running of the statute of limitations in a letter to Surrogate’s Court, Collazo had been convicted on a federal criminal offense and was facing sentencing and disbarment. Plaintiff is entitled to the factual inference that, at this late juncture and mindful of his ill{**115 AD3d at 152} health, Tanzman was aware of the need to prepare and file a complaint or to arrange for one to be filed as soon as the necessary letters of administration were received. The letters of administration were issued on October 6, 2010. Tanzman neither filed a complaint nor engaged another attorney to file one in his stead despite the availability of three attorneys associated with the firm as of counsel.

No discovery has been conducted and, in the absence of any evidence that the onset of Tanzman’s final episode of illness was sudden, unanticipated and completely debilitating, the failure to seek assistance with the filing of a timely complaint represents a failure to protect plaintiff’s interests. Further, plaintiff was not informed that the statute of limitations was about to expire so that she could protect her claim."