Patel v Rose Law Group PLLC 2025 NY Slip Op 52027(U) Decided on November 19, 2025
Supreme Court, New York County Lebovits, J. demonstrates where the central locus of almost all legal malpractice claims lies: in the “but for” causation analysis. Here, plaintiffs pointed out discovery shortcomings and missing arguments. That, however, was insufficient.

“Plaintiff retained defendants to pursue employment-discrimination and retaliation claims in Supreme Court against his employer, Macy’s Inc. (NYSCEF No. 1 at ¶ 5.) In that action, Macy’s moved to compel arbitration. Supreme Court granted the motion. (See Patel v Macys Inc., 2017 WL 4574887, *2 [Sup Ct, NY County 2017, Kotler J.].) Plaintiff—represented by defendants—appealed the Supreme Court decision. The appeal was unsuccessful. (See Patel v Macys Inc., 168 AD3d 632, 632 [1st Dept 2019].) The matter then went to arbitration.

The arbitrator dismissed plaintiff’s claims. The arbitrator concluded that plaintiff “did not carry his burden” of demonstrating discrimination based on race or national origin; retaliation; or aider and abettor liability by plaintiff’s individual supervisors at Macy’s. (NYSCEF No. 6 at 1, 31-31 [arbitrator’s November 2021 decision].)

After arbitration, plaintiff (represented by different counsel and not defendants) petitioned to vacate the arbitration award. (NYSCEF No. 7.) Supreme Court denied the petition. (See Patel v Macy’s, Inc., 2022 WL 6353294, *3 [Sup Ct, NY County 2022, Kotler, J.].) The First Department affirmed. (See Matter of Patel v Macy’s Inc., 227 AD3d 551, 551 [1st Dept 2024].)

Plaintiff now brings this action against defendants. Plaintiff asserts claims for malpractice, breach of fiduciary duty, fraudulent misrepresentation, and unjust enrichment arising from defendants’ alleged conduct during the arbitration proceeding. Plaintiff also seeks relief under Judiciary Law § 487.

Defendants move under CPLR 3211 (a) (1) and (7) to dismiss the complaint. The motion is granted under CPLR 3211 (a) (7).”

“Plaintiff alleges that defendants committed malpractice during the arbitration proceeding by (i) failing to inform plaintiff that defendants signed a protective order that prevented plaintiff’s access to his supervisors’ personnel files, which, plaintiff contends, were crucial to the arbitration; (ii) incompetently handling discovery and representing to plaintiff that he had submitted plaintiff’s discovery responses to Macy’s; and (iii) failing to put evidence of plaintiff’s damages into the arbitration record.[FN1] (NYSCEF No. 1 at 3-6.) Plaintiff claims that “he would have prevailed or achieved a more favorable outcome in the underlying matter” but for defendants’ conduct. (NYSCEF No. 20 at 29.)

Defendants argue that plaintiff’s allegations that he would have succeeded in the underlying arbitration but for defendants’ conduct are conclusory and speculative. Defendants further argue that any failure to put damages into the record is a nonissue, because the arbitrator never reached the issue of damages. Plaintiff contends that had defendants properly conducted discovery in accordance with plaintiff’s specifications and obtained the documents plaintiff sought, that discovery would have “changed the course of the case and was the proximate cause of the eventual loss of the case.” (NYSCEF No. 20 at 8.) Additionally, plaintiff contends that “[a]s a result of the Plaintiff not having any damages on record, he could [not] establish credibility and lost the arbitration and any settlement offer which was imminent.” (NYSCEF No. 20 at 17.) The court agrees with defendants.

A claim for legal malpractice has “three elements: (1) that the attorney was negligent; (2) that such negligence was a proximate cause of plaintiff’s losses; and (3) proof of actual damages.” (Carasco v Schlesinger, 222 AD3d 476, 477 [1st Dept 2023].) On a malpractice claim “based on the alleged mishandling of a litigation, . . . plaintiff must satisfy the case within a case requirement, demonstrating that but for the attorney’s conduct the plaintiff client would have prevailed in the underlying matter or would not have sustained any ascertainable damages.” (Id. [internal quotation marks omitted].)

Plaintiff’s allegations that the additional discovery would have tilted the arbitration in his [*2]favor are speculative. Plaintiff assumes that the arbitrator would have credited the discovery he sought instead of, or in addition to, the in-person testimony and other exhibits provided at the arbitration hearing. But it is unclear whether the personnel files or other discovery might have affected the arbitrator’s credibility assessment of the witnesses at trial or the weight of exhibits upon which the arbitrator based his decision. (See NYSCEF No. 6 at 13-14 [arbitrator’s decision]; see (Cusimano v Wilson, Elser, Moskowitz, Edelman & Dicker LLP, 118 AD3d 542 [1st Dept 2014] [holding that plaintiff’s allegations that an arbitral panel would have credited evidence not offered at the proceeding were speculative].) This is particularly so with respect to the personnel files, the contents of which are unknown.

This court further concludes that defendants’ failure to introduce evidence of damages into the record would not have altered the outcome of the arbitration. The arbitrator did not reach the issue of damages. He found that plaintiffs lost on liability. (See NYSCEF No. 6 at 31.) Evidence of plaintiff’s monetary and emotional injury was unnecessary. Additionally, plaintiff provides no allegation to support that having the damages in the record would have induced Macy’s to propose a settlement.

The branch of defendants’ motion to dismiss plaintiff’s malpractice claim is granted.”

Tsirklin v Wolfe 2025 NY Slip Op 52011(U) Decided on December 9, 2025 Supreme Court, Westchester County Rivera, J. makes one surprising finding, and one easily understandable finding.

A non-party attorney’s affirmation (using pre-2024 language was ruled inadmissible for lack of the 2024 CPLR 2016 language. The retainer agreement was held to determine whether plaintiff had standing to sue the attorneys.

“Initially, this Court notes that the affirmation of Gary L. Koenigsberg, Esq. dated September 16, 2025, filed in support of defendants’ motion to dismiss the complaint, fails to comport with the recently amended statutory language of CPLR 2106 (NYSCEF Doc. No. 7).

CPLR 2106 provides as follows:

The statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury, may be used in an action in New York in lieu of and with the same force and effect as an affidavit. Such affirmation shall be in substantially the following form:

I affirm this _____ day of __________, _____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.

The subject affirmation is made only “under the penalties of perjury,” which, effective January 1, 2024, is not legally sufficient. The Advisory Committee Notes to CPLR 2106 state, “While attorneys always have a professional duty to state the truth in papers, the affirmation under the proposed rule gives attorneys adequate warning of the possibility of prosecution for perjury for a false statement.” (Zhou v Cent. Radiology, PC, 84 Misc 3d 410, 419 [Sup Ct, Queens County 2024].)

Further, inasmuch as the amended rule includes the word “shall” within its directive, the language set forth thereafter is mandatory and not merely a suggestion (see Diego Beekman Mut. Hous. Assn. Hous. Dev. Fund Corp. v Hammond, 81 Misc 3d 1244(A) [Civ Ct, Bronx County 2024]). The failure to include the required language as set forth in CPLR 2106 cannot be said to be harmless and renders the affirmation inadmissible and of no probative value (see Zhou at 419; R.F. v L.K., 82 Misc 3d 1221(A) [Sup Ct, Westchester County 2024]; see generally Matter of Grandsard v Hutchinson, 227 AD3d 491 [1st Dept 2024]; Great Lakes Ins. SE v American S.S. Owners Mut. Protection & Indem. Assn. Inc., 228 AD3d 429 [1st Dept 2024]; Fifth Partners LLC v Foley, 227 AD3d 543 [1st Dept 2024]; Kallo v Kane St. Synagogue, 241AD3d 522 [2d Dept 2025].) Accordingly, the affirmation of Gary L. Koenigsberg, Esq., filed in support of the within motion, lacks probative value and is inadmissible.”

“”On a defendant’s motion to dismiss the complaint based upon the plaintiff’s alleged lack [*2]of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing. To defeat a defendant’s motion, the plaintiff has no burden of establishing its standing as a matter of law; rather, the motion will be defeated if the plaintiff’s submissions raise a question of fact as to its standing” (Golden Jubilee Realty, LLC v Castro, 196 AD3d 680, 682 [2d Dept 2021] [internal citations omitted]). Here, both parties separately submitted the engagement letter that established the attorney-client relationship between the parties (NYSCEF Doc. Nos. 9 & 17). The engagement letter is composed on Alden H. Wolfe, P.C.’s letterhead and it is addressed to the proposed client, Yan Tsirklin. The subject line reads, “RE: Tasty Treats NY LLC from Birdave Inc.” The letter is signed by Alden H. Wolfe and Yan Tsirklin. The signature line provided for Yan Tsirklin does not identify Tsirklin in any capacity other than as an individual. Tsirklin is not addressed as an owner, shareholder, or representative of any company and his signature line does not classify him as an owner, shareholder, or representative of a company. (Cf. General Motors Acceptance Corp. v Kalkstein, 101 AD2d 102, 105-106 [1st Dept 1984] [holding that where documentary evidence indicates that individual signed an agreement in his corporate capacity, the agreement cannot be construed as a contract with him personally].)

Accordingly, while defendants argue that the causes of action in the complaint concern compensatory damages allegedly sustained by plaintiff’s company, Tasty Treats NY, LLC, the documentary evidence provided by both parties indicates that plaintiff retained defendants in his personal capacity, and not as a member or officer of the corporate entity. At a minimum, plaintiff has raised a question of fact as to plaintiff’s standing to bring this action in his personal capacity (see Deutsche Bank Trust Co. Ams. v Vitellas, 131 AD3d 52, 60 [2d Dept 2015]).”

Gelwan v De Ratafia 2025 NY Slip Op 07093 Decided on December 18, 2025 Appellate Division, First Department is a convoluted story of old attorneys, new attorneys, associated attorneys and a fee which was pursued by each of the attorneys.

“Order, Supreme Court, New York County (David B. Cohen, J.), entered on or about October 16, 2023, which, to the extent appealed from, granted in part the motion of defendants Georges-Lucien de Ratafia and Diane Ackroyd to the extent of dismissing the causes of action for breach of the implied covenant of fair dealing and tortious interference with contract as against them; granted the motion of The Warshawsky Law Firm and Steven M. Warshawsky (together, Warshawsky) to dismiss the causes of action for tortious interference with contract, breach of fiduciary duty, professional negligence, and violation of Judiciary Law § 487 as against them; and granted the motion of defendant Columbia County to dismiss cause of action for interference with a charging lien as against it, unanimously affirmed, with costs. Cross-appeal from the order insofar as it denied in part defendants Georges-Lucien de Ratafia and Diane Ackroyd’s motion to dismiss the insofar as the motion sought to dismiss the causes of action for breach of contract and imposition of a charging lien as against them, unanimously dismissed, without costs.”

“Under a 2012 retainer agreement, de Ratafia and Ackroyd retained the law firm of Glenn Backer Esq., with plaintiff as “of counsel,” to commence and prosecute a civil rights action in federal court against Columbia County. The agreement provided for a 40% contingency fee that Backer was to share equally with plaintiff. In 2015, the firm of O’Connell and Aronowitz (O&A), which is not a party in this action, was substituted for Backer, who had withdrawn from the matter and later died in 2016. Plaintiff continued to work on the case with O&A. In 2016, de Ratafia and Ackroyd caused Warshawsky to be substituted as counsel for O&A, with plaintiff remaining as co-counsel. The federal action was settled in June 2016. Plaintiff was not paid any attorneys’ fees from the settlement proceeds, and in August 2016, he commenced this action against de Ratafia, Ackroyd, and Warshawsky, seeking a contingency award of 45% of the settlement recovery.

Initially, we reject de Ratafia and Ackroyd’s arguments that the 2012 retainer agreement is invalid under 22 NYCRR 1200.0 rule 1.5(g), and that plaintiff therefore has no enforceable rights under the agreement because it violated professional and ethical rules. Contrary to de Ratafia and Ackroyd’s contentions, the agreement need not have provided for a proportionate division of the fees, as the language stating that the fee would be equally shared, along with the use of the word “we” with respect to the work to be performed, effectively informed de Ratafia and Ackroyd that Backer and plaintiff were assuming joint responsibility for the representation. In addition, the fact that the retainer agreement did not include a “conflict of interest waiver” does not render it void. Nor does the record support a finding that the retainer was void on the ground that plaintiff solicited other attorneys to work and did not perform the legal work himself (see Oberman v Reilly, 66 AD2d 686, 687 [1st Dept 1978], appeal dismissed 48 NY2d 602 [1979]). The retainer was also not rendered void by the mere inclusion of the provision stating that an agreement “between you [de Ratafia and Ackroyd] and us [Backer and plaintiff], as your counsel, is necessary for settlement” as the provision was not invoked here by an attorney in an attempt to impede settlement (see Costa v Arandia & Arandia, 191 AD3d 499, 499 [1st Dept 2021]).

For the same reasons, we reject de Ratafia and Ackroyd’s assertion that plaintiff’s right to a contingency fee terminated upon Backer’s withdrawal from representation of de Ratafia and Ackroyd in the federal action.

Moreover, de Ratafia and Ackroyd failed to show as a matter of law that their disputes during the federal action created conflicts of interest that rendered plaintiff’s joint representation of them violative of ethical rules so as to bar plaintiff from remuneration for his legal work on the matter (cf. Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.7; Saint Annes Dev. Co. v Batista, 165 AD3d 997, 998 [2d Dept 2018]). Similarly, de Ratafia and Ackroyd have not shown that plaintiff’s acceptance of their agreement, in the midst of the litigation, to pay him a 5% bonus contingency fee constituted an ethical violation that would oblige plaintiff to forfeit his legal fees.

As to the merits of plaintiff’s causes of action against defendants, plaintiff failed to state causes of action for tortious interference with contract as against de Ratafia (sixth cause of action) and Ackroyd (seventh cause of action). The allegations in support of the cause of action against de Ratafia are lacking in specifics, and the allegations in support of the cause of action against Ackroyd are conclusory and insufficient to assert the type of tortious conduct that could be the basis for such a claim (see 245 E. 19 Realty LLC v 245 E. 19th St. Parking LLC, 223 AD3d 604, 607-608 [1st Dept 2024]; L.Y.E. Diamonds, Ltd. v Gemological Inst. of Am., Inc., 169 AD3d 589, 591 [1st Dept 2019]). Moreover, plaintiff failed to state a cause of action against de Ratafia and Ackroyd for breach of the implied covenant of good faith and fair dealing (second cause of action). The allegations of de Ratafia and Ackroyd’s involvement in a purported scheme against plaintiff are conclusory and insufficient to assert the type of conduct that can be the basis for this cause of action.

Supreme Court correctly dismissed the cause of action alleging a violation of Judiciary Law § 487 as against Warshawsky (twelfth cause of action). Plaintiff’s allegations regarding Warshawsky’s alleged deceit are conclusory and fail to state a cause of action for violation of § 487 with the requisite particularity (see Nehmadi v Claude Castro & Assoc. PLLC, 204 AD3d 544, 544 [1st Dept 2022]; Facebook, Inc. v DLA Piper LLP [US], 134 AD3d 610, 615 [1st Dept 2015], lv denied 28 NY3d 903 [2016]).

In addition, plaintiff failed to state a cause of action for breach of fiduciary duty as against Warshawsky (tenth cause of action). The strong public policy interest of protecting the attorney’s paramount ethical duty of undivided loyalty to the client would be compromised by creating a fiduciary duty between co-counsel (see e.g. Charles Gruenspan Co. v Thompson, 2003 WL 21545134, 2003 Ohio App LEXIS 3287, *28 [Ohio App Ct 2003, No. 80748]; see generally Beck v Wecht, 28 Cal 4th 289, 48 P3d 417 [Cal 2002]).

Supreme Court also correctly dismissed the claim predicated on Warshawsky’s alleged tortious interference with the retainer agreement (ninth cause of action). Such a claim requires nonconclusory allegations that the interference was by “wrongful means” or for the sole purpose of harming the plaintiff, as opposed to in the defendants’ own self-interest. Plaintiff uses the term “coercive” to describe Warshawsky’s actions in obtaining de Ratafia and Ackroyd’s participation to effectively freeze him out of the federal action. However, the allegations are devoid of any facts evincing actual coercion, crime, threat, or other tort in connection with de Ratafia and Ackroyd’s exercise of their rights to employ of the counsel of their choice (see Jacobs v Continuum Health Partners, 7 AD3d 312, 313 [1st Dept 2004]; see also LoPresti v Florio, 71 AD3d 574, 574 [1st Dept 2010]).

Because there was no attorney-client relationship between plaintiff and Warshawky, his co-counsel, plaintiff has no standing to assert the professional negligence cause of action (eleventh cause of action), which sounds in legal malpractice. Thus, the court correctly dismissed it (see Federal Ins. Co. v North Am. Specialty Ins. Co., 47 AD3d 52, 60 [1st Dept 2007]; Burton v Rogovin, 262 AD2d 72, 72 [1st Dept 1999]).”

Nerayoff v Covington & Burling LLP 2025 NY Slip Op 34563(U) November 25, 2025 Supreme Court, New York County Docket Number: Index No. 158208/2024 Judge: Mary V. Rosado, is that avis rara criminal defense legal malpractice case that permits the claim upon a showing of actual innocence. While that structural defense was not deployed or mentioned, that won the case was the successful Rosner v. Paley strategic choice defense.

“Plaintiff, allegedly an attorney, inventor and founder involved in cryptocurrency and blockchain, sues Defendant, his former attorneys, for legal malpractice allegedly committed during representation of him in a federal criminal matter captioned United States v. Steven Nerayoff and Michael Hlady (the “Criminal Case”). Plaintiff was charged with Hobbs Act extortion under 18 U.S.C. § 195 l(a) for allegedly extorting StormX, a company who hired Plaintiff to sell a new cryptocurrency to the public. A criminal complaint was filed against Plaintiff in the Eastern District of New York in September of 2019 (NYSCEF Doc. 17). After his arrest on September 25, 2019, Plaintiff retained Defendant for the limited purpose of pre-indictment representation (NYSCEF Doc. 18). According to Plaintiff, he presented Defendant with exculpatory evidence, but Defendant advised him to not share this information with prosecutors pre-indictment and to wait until trial. Plaintiff alleges as a result, he was indicted on January 10, 2020. Plaintiff was subsequently represented by four other criminal defense attorneys and defended the Criminal Case for three years (NYSCEF Docs. 20-23). Nonetheless, none of his other attorneys presented the allegedly exculpatory evidence until June of 2022 (NYSCEF Doc. 8 at , 11 ). The prosecutors ultimately moved to dismiss the charges against Plaintiff on March 21, 2023 and on May 5, 2023, United States District Court Judge Margo K. Brodie dismissed the charges against Plaintiff. Plaintiff now sues Defendant for legal malpractice based on Defendant’s allegedly negligent advice not to meet with prosecutors’ pre-indictment. Defendant moves to dismiss pursuant to CPLR 321 l(a)(l) and (a)(7), which Plaintiff opposes.”

‘Defendant’s motion to dismiss is granted. “In order to survive a motion to dismiss, a plaintiffs complaint in an action for legal malpractice must show that ‘but for counsel’s alleged malpractice, the plaintiff would not have sustained some actual ascertainable damages”‘ (Gopstein v Beilinson Law, LLC, 227 AD3d 465, 466 [1st Dept 2024] quoting Pellegrino v File, 291 AD2d 60, 63 [l st Dept 2002], lv denied 98 NY2d 606 [2002]). Whether a pleading alleges adequately legal malpractice is a question of law which may be determined on a motion to dismiss (Rosner v Paley, 65 NY2d 736, 738 [1985]). It is well established that a client’s disagreement with his lawyer’s reasonable strategic decision, even if the strategy has alleged flaws, does not give rise to a legal malpractice claim (see RTW Retailwinds, Inc. v Colucci & Umans, 213 AD3d 509, 510 [1st Dept 2023] citing Wagner Davis P.C. v Gargano, 116 AD3d 426, 426 [1st Dept 2014]; see also Genet v Buzin, 159 AD3d 540 [1st Dept 2018] citing Kassel v Donohue, 127 AD3d 674, 674 [1st Dept 2015]).”

“Plaintiffs allegations oflegal malpractice fail because they amount to a mere disagreement over the timing to present allegedly exculpatory evidence in the underlying Criminal Action, which Plaintiff, with the benefit of hindsight, alleges should have been done pre-indictment (see, e.g. Brookwood Companies, Inc. v Alston & Bird LLP, 146 AD3d 662, 667 [1st Dept 2017] citing Rosner v Paley, 65 NY2d 736, 738 [1985]; see also Rodriguez v Lipsig, Shapey, Manus & Moverman, P.C., 81 AD3d 551, 552 [1st Dept 2011]). Defendant’s advice to withhold this information pre-indictment and to disclose it at the time of trial was not unreasonable. There are numerous treatises and legal articles which warn of the significant risks of sharing evidence and defense strategy with prosecutors pre-indictment, including: (a) risks that the information shared may be used to expand the scope of investigation and bring further charges; (b) the client may be exposed to potential liability for perjury or making false statements, and ( c) notifying the prosecutor to potential legal defenses and trial strategy. There is nothing alleged that Defendant did something to bar Plaintiff from disclosing this exculpatory information post-indictment or at the time of trial, when the risks of sharing this information may have diminished significantly (see, e.g. Ferguson v Hauser, 156 AD3d 425,425 [1st Dept 2017]). Further, Plaintiff fails to allege Defendant’s advice to withhold this information was the “but-for” cause of his alleged damages. Court documents from the Criminal Case show Plaintiff retained multiple other attorneys who either did not share the purportedly exculpatory information with the prosecution or waited months, if not years to share it with prosecutors. The Complaint fails to allege how Defendant’s advice not to proffer certain exculpatory evidence pre-indictment caused his alleged damages when subsequent attorneys likewise did not disclose that information or delayed in disclosing that same evidence.”

While many court conferences are held virtually (and practitioners almost universally relish this change), there are still many in-person, in-court conferences. The single failure of plaintiff’s attorney to attend a conference can be the basis for dismissal of plaintiff’s case, which is certainly a drastic outcome. In Marathon Strategies, LLC v Centennial Props. Inc. 2025 NY Slip Op 34559(U) November 13, 2025 Supreme Court, New York County Docket Number: Index No. 656191/2021 Judge: Emily Morales-Minerva, we see how on NY County judge deals with getting caught on the subway.

“The Court grants plaintiff MARATHON STRATEGIES, LLC’s motion (seq. no. 05), for an order vacating the undersigned’s decision and order, dated February 05, 2025, which upon plaintiff’s default dismissed this action sounding in breach of contract (see CPLR § 5015 [governing relief from a judgment or order] ) .”

“On February 05, 2025, the Court dismissed this action (1) for plaintiff’s failure to appear at a time-certain and in-person call of the calendar and (2) for plaintiff’s failure to contact the Court with an excuse or request for an adjournment (see New York State Courts Electronic Filing system [NYSCEFJ Doc. No. 63, Decision and Order, dated February 05, 2025i see also Uniform Civil Rules for the Supreme Court and the County Court [22 NYCRR] § 202.27 [permitting dismissal where, as here, the defendant appears at the call of the calendar, but the plaintiff does not]) .2 In support of its application to vacate said dismissal, plaintiff contends that it presents a reasonable excuse for the default and a meritorious claim. Defendant CENTENNIAL PROPERTIES INC. F/K/A 9300 REALTY MANAGEMENT INC. submits written opposition, arguing plaintiff’s claim has no merit (see NYSCEF Doc. No. 89, affirmation in opposition, dated April 02, 2025).”

“[I]t is well-settled that courts generally have a “preference for deciding cases on the merits” (Liparulo v New York City Health & Hasps. Corp., 193 AD3d 593, 594 [1st Dept 2021], lv dismissed 37 NY3d 1088 [2021], citing Eisenstein v Rose, 135 AD2d 369, 370 [1st Dept 1987]; see also U.S. Bank N.A. v Zhu, 238 AD3d 628, 629 (1st Dept 2025] [recognizing the same]; Liu v Chang, 227 AD3d 410, 411 [1st Dept 2 024] [recognizing the same] ) . Even so, “this preference will not justify vacating a default judgment where the moving party fails to satisfy the two-prong burden of showing a meritorious defense and a reasonable excuse for the default” (Eisenstein, supra, 135 AD2d at 370). As to a reasonable excuse, neither “neglect” nor “incompetence” satisfies the requisite standard (Liu, 227 AD3d at 410-411). Conversely, law office failure may be acceptable as a reasonable excuse where the moving party supports the assertion “with a detailed and credible explanation of the default” (Agostinacchio v Jofaz Transportation, Inc., 238 ADJd 691, 693 [2d Dept 2025] [internal citations and quotations omitted] [emphasis added]). Law office failure should not be excused as reasonable if the moving party proffers a “vague, conclusory, and unsubstantiated” statement or account for the forfeiture (id. [internal citations and quotations omitted). Here, plaintiff submits the affirmation of counsel of record and the affirmation of a per diem attorney to support its excuse for failing to appear and to contact the Court with an excuse or request for an adjournment. The affirmation of counsel of record, explains that — one day prior to the court appearance — said counsel arranged for a per diem attorney to appear in their stead (see NYSCEF Doc. No. 78, affirmation of counsel of record, dated March 05, 2025). In turn, the per diem attorney’s affirmation provides that they failed to appear or to contact the court because of an unexpected subway delay (see NYSCEF Doc. No. 80, affirmation of per diem attorney, dated February 17, 2025). A delayed subway affecting counsel’s punctuality is more attuned to a New Yorker’s ordinary commuting challenges than it is to law office failure. Therefore, this Court exercises its discretion to excuse the circumstances here. Indeed, on the date of the subject conference, the per diem attorney eventually appeared in court, albeit after defendant left and the morning calendar concluded.”

Not that many Judiciary Law 487 cases go to trial, and fewer are successful. Josephs v AACT Fast Collections Servs. Inc. 2025 NY Slip Op 34427(U) November 18, 2025 Supreme Court, Kings County Docket Number: Index No. 502491-2012 Judge: Peter P. Sweeney was lost at a bench trial.

“The undersigned presided over a bench trial of the above action on October 21, 2025. Ed C. Lehman appeared for the plaintiff, ELYSE JOSEPHS/ ADV AN CED ACUPUNCTURE HEALTH, P.C. (“Plaintiff’), and Frank Falcone appeared LUBARSKY & TARNOVSKY ATTORNEYS AND COUNSELORS AT LAW P.C. (“L&B P.C.”) The purpose of the trial against L&B P.C was to determine liability and damages. The trial was also an inquest on the issue of damages as against AACT FAST COLLECTIONS SERVICES INC. (“AACT”) and KARINA MITSELMAKHER AKA KARINA PISMICHENKO (“Mitselmakher”), who were held in default during the pendency of the action. The action insofar as asserted against LEON LUBARSKY, ESQ. and RADA TARNOVSKY, ESQ. in the individual capacities was dismissed due to lack of personal jurisdiction.”

“The Amended Complaint, filed December 9, 2014, sets forth three causes of action against the various Defendants. The Plaintiff, a licensed acupuncturist, alleges that she retained the Defendants to collect outstanding and unpaid medical bills for acupuncture services from various insurance companies, beginning in or about January 2008. In the first cause of action alleged against AACT and Mitselmakher, Plaintiff alleges causes of action for breach of contract and professional negligence. The Plaintiff alleges that the collection services provided by AACT and Mitselmakher were performed carelessly, unskillfully, and negligently. Crucially, it is alleged that Defendants AACT and Mitselmakher forwarded the Plaintiffs claims to the legal codefendants (L&B P.C.) without the Plaintiffs knowledge, agreement, or consent, and failed to follow up, control, and supervise the work of those legal defendants. In the second cause of action, the Plaintiff alleges that defendants L& B P.C., Leon Lubarsky, Esq. and Rada Tarnovsky, Esq. were negligent in their representation of her in her actions against many insurance companies for the payment of her bills. Specifically, she claims that these defendants agreed to undertake collection services but committed numerous negligent acts and omissions, including failing to reasonably and adequately investigate the claims; failing to comply with relevant statutory requirements, and failing to commence timely legal actions against certain defendants and obtain jurisdiction over them, and/or failing to add proper parties, allowing all applicable statutes of limitations to expire, thereby precluding recovery on the underlying claims, and failing to attend scheduled court hearings or conferences, which caused or failed to prevent the dismissal of some of her legal claims. In the third cause of action against L&B P.C., Leon Lubarsky, Esq., and Rada Tarnovsky, Esq., the Plaintiff alleges that these defendants engaged in a willful course of conduct to deceive and defraud the Plaintiff. The complaint states that the legal Defendants violated their fiduciary duties and engaged in a II chronic and extreme pattern of legal delinquency. 11 The Plaintiff seeks general and special damages, as well as punitive and treble damages pursuant to a violation of Judiciary Law §487.”

“Plaintiffs chief complaint against L&B P.C. and the defendant attorneys is that they settled many of her cases well below what she believed was the industry standard settlement amount of between 80% and 85% of the bill without her consent. She specifically claims that in one instance, the defendant settled a bulk of her cases with GEICO for a small fraction of the amount of the bills at issue and that she received no more than 15% to 20% of the billed amount. Ms. Josephs testified she never authorized the settlement, and that defendant never requested her permission to enter into the bulk settlement.”

“After carefully considering Ms. Josephs’ testimony and assessing her credibility, the court makes the following findings of fact and conclusion of law: While the court found Ms. Josephs to be a credible witness, she did not introduce any admissible evidence at the time of trial/inquest supporting her damages claims. All her claims for damages were based on hearsay documents that were not received in evidence. Notably, the Plaintiff did not offer any of her own business records into evidence at the time of trial. She did not offer her treatment notes with respect to any of the patients she claims she treated, nor did she introduce copies of any of her bills that were submitted to the no-fault carriers that were allegedly responsible for the payment of the bills. Indeed, she did not submit any admissible proof of the claims that were submitted to the no-fault carriers, documenting the amounts that were billed for and the amounts for which the action was settled, if they were settled. Finally, she offered no admissible evidence documents that amounts she claims she lost due to defendants’ failure to properly transfer and handle her litigation cases. The Plaintiffs failure to prove damages requires that the action be dismissed.”

A case is started and a default in answering takes place. How the balance of the litigation and the dismissal of the claim took place is now the subject of a legal malpractice claim involving multiple law firms in Mei Lan Zhang v Wu & Kao, PLLC 2025 NY Slip Op 34523(U) November 25, 2025 Supreme Court, New York County Docket Number: Index No. 153754/2023 Judge: Judy H. Kim.

“In 2017, defendant Wu & Kao, PLLC commenced a lawsuit in New York State Supreme
Court, Queens County on behalf of plaintiff and against Victoria Towers Development Corp., Jeffrey Wu, and W&L Construction Group, under index number 700176/2017 (the “Queens Action”). Defendant represented plaintiff in the Queens Action until approximately February 2020, at which time it was replaced by Goldberger & Dubin, P.C. (“G&D”), which also represents plaintiff in this action.
In this malpractice action, plaintiff alleges that defendant failed to timely move for a default judgment in the Queens Action, instead “churning” the file with unnecessary motion practice and, as a result, plaintiff’s motion for a default judgment against W&L Group Construction, Inc.—filed by G&D in February 2023—was denied and the Queens Action dismissed pursuant to CPLR 3215(c) by the Honorable Joseph J. Esposito (NYSCEF Doc Nos. 1 [complaint] and 12 [decision and order dated March 30, 2023]).


Defendant interposed an answer that, as relevant here, asserts counterclaims against G&D for “consent,” assumption of risk, contributory negligence, indemnification, “malicious action,” negligence, “false statement,” and perjury (NYSCEF Doc No. 17, answer). The gravamen of these counterclaims is that G&D: (1) negligently failed to offer a reasonable excuse for plaintiff’s delay in the default judgment motion in the Queens Action; (2) falsely represented to the court in its default judgment motion papers that it had communicated with plaintiff’s prior counsel before moving for a default judgment; (3) was negligent in discontinuing the Queens Action against
Victoria Towers Development Corp. and Jeffrey Wu; and (4) maliciously “instigated” the present action.”

G&D now moves, pursuant to CPLR 3211(a)(6) and (7),1 to dismiss this action arguing
that defendant’s “counterclaims allege no facts, and Judge Esposito’s Order [dismissing the Queens Action] demonstrates that any allegation which could be considered factual [are] flatly contradicted by documentary evidence” (NYSCEF Doc No. 11, memo of law at ¶55 [internal quotations and quotations omitted]). In opposition, defendant notes that G&D’s motion largely focuses on the merits of plaintiff’s complaint rather than the merits of defendant’s counterclaims. In reply, G&D submits an affirmation by its attorney, Stacey Van Malden, Esq., attesting that she spoke with the attorney who had handled the Queens Action for Wu & Kao PLLC (who subsequently left the firm) prior to moving for default judgment (NYSCEF Doc No. 41) and argues that, as a result, defendant’s counterclaims sounding in malpractice, perjury, “false statement,” and Judicial Law §4872 must be dismissed. G&D also asserts that defendant does not have standing to assert negligence claims on behalf of plaintiff.”

“As a threshold matter, defendant’s counterclaims for “consent” and “malicious action” are dismissed as non-cognizable claims. Neither may defendant maintain a counterclaim for perjury (see Kinberg v Kinberg, 48 AD3d 387 [1st Dept 2008] [“Plaintiff wife’s first cause of action, in which she sought defendant husband’s imprisonment and a fine for his alleged perjury, failed to state a cause of action, since it is the district attorney who generally retains sole authority to prosecute such criminal activity”]).

Defendant’s Answer does not plead facts implicating the assumption of risk doctrine (see Garnett v Strike Holdings LLC, 131 AD3d 817 [1st Dept 2015] [assumption of risk doctrine precludes recover in tort for athletic activities in which plaintiff has freely accepted a known risk inherent to that activity]) or establishing that G&D owes it a duty sufficient to support a negligence claim (see SH575 Holdings LLC v Reliable Abstract Co., L.L.C., 195 AD3d 429 [1st Dept 2021]). Neither does an indemnification claim lie. “[T]o recover on a claim for common law indemnification, the one seeking indemnity must prove not only that it was not guilty of any negligence beyond the statutory liability but must also prove that the proposed indemnitor was guilty of some negligence that contributed to the [harm] for which the indemnitee was held liable to the injured party by virtue of some obligation imposed by law” (Blank Rome, LLP v Parrish, 92
AD3d 444, 444-45 [1st Dept 2012] [internal citations and quotations omitted]). Here, as defendant does not allege that its “liability is solely statutory and not based upon its own negligence, [it] fail[s] to state a cause of action for common law indemnification” (id. [internal citations and quotations omitted]). Moreover, as defendant does not allege that it entered into a contract with G&D, it has no claim for contractual indemnification (id.).


Defendant has, however, stated a claim for contribution. “It is well settled that an attorney sued for malpractice may assert a third party claim against another lawyer who advised the plaintiff on the same matter” (Millennium Import, LLC v Reed Smith LLP, 104 AD3d 190, 193 [1st Dept 2013]). “In the context of a legal malpractice claim, as in any other case, in 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” (Aglira v Julien & Schlesinger, P.C., 214 AD2d 178, 183-84 [1st Dept 1995] [internal citations and quotations omitted]). Defendant’s Answer, read liberally, satisfies this
standard with allegations that G&D had a duty to plaintiff as her lawyer, that it breached this duty by failing to contact prior counsel to establish a reasonable excuse for plaintiff’s delay in moving for a default judgment and by discontinuing the action against Victoria Towers Development Corp. and Jeffrey Wu, and that these breaches aggravated or otherwise contributed to plaintiff’s failure to recover in the Queens Action (see Bivona v Danna & Assoc., P.C., 123 AD3d 956, 959 [2d Dept 2014] [“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”]).

Stfleur v Wallace 2025 NY Slip Op 34502(U) November 24, 2025 Supreme Court, Kings County Docket Number: Index No. 525973/2019 Judge: Ingrid Joseph delves into whether a defendant attorney can get her case severed from the plaintiff’s claims against others.

“In this matter, Denaka L. Perry, Esq. (“Perry”) moves (Motion Seq. 5) for an Order pursuant to CPLR 603 severing all claims against her from the within action. Marc Antoine Stfleur and Garfield M. Stfleur, individually and as Trustees of the Marie C. Souffrant Trust (“Plaintiffs”) have opposed the motion. Plaintiffs commenced this action primarily to compel determination of claims related to a piece of real property located at 146 Lenox Road, Brooklyn, New York 11226, (the “Subject Premises”) pursuant to RPAPL Article 15. Pursuant to the Complaint, Plaintiffs allege that on September 20, 2010, Marie C. Souffant (“Decedent”) conveyed her interest in the Subject Premises to her children, Marc Stfleur, Garfield Stfleur, and Regina Wallace a/k/a Regina Stfleur (“Wallace”) as Co-Trustees of The Marie C. Souffrant Trust (the “Trust”). Plaintiffs assert that in addition to a Life Estate, Decedent reserved unto herself a Power of Appointment which allowed Decedent to alter the remainder of the Beneficiaries of the Trust within her sole discretion and without consent of any Trustee/Remainder beneficiary. It is alleged that pursuant to the terms of the Original Trust, Defendant Wallace was named as the sole beneficiary of the Subject Premises.”

“Therefore, according to the Amendment to the Trust, distribution of the Subject Premises was to be to the Plaintiffs and Defendant Wallace in three equal shares following the Decedent’s death. Plaintiffs allege that on that same day, Decedent also executed a new Will which reinforced Decedent’s intent for the distribution of the Subject Premises to be done in accordance with the Amendment. Plaintiffs claim that following Decedent’s death on June 26, 2017, that Plaintiffs and Defendant Wall ace sought the legal advice of Perry, as counsel, with respect to the sale and distribution of the Subject Premises. Pursuant to the Complaint, Plaintiffs allege that in or around March of 2019, Plaintiffs and Defendant Wallace retained Perry to negotiate the terms of a Contract wherein demolition, excavation, and construction work was to be performed at the Subject Premises. Thereafter, on March 26, 2019, Marc Stfleur entered into a Retainer Agreement with Perry to handle the transfer of the title of the Subject Premises to the beneficiaries of the Trust, negotiate a sale of the Subject Premises, and to represent Marc Stfleur and the owners through the closing on the sale. Thereafter, Plaintiffs allege that upon the advice of Perry, that Plaintiffs agreed that the Subject Premises was to be moved from the Trust into three remainder beneficiaries individually as tenants in common. However, Plaintiffs allege that on April 6, 2019, Perry asked Plaintiffs to sign off on a deed transfer, which they did, wherein Plaintiffs signed away their interest in the Subject Premises entirely to Wallace, in violation of the terms of the Trust and the Amendment to the Trust. Plaintiffs contend that Perry did not explain that they were signing away their interest. The Deed was recorded by the Office of the City Register on April 6, 2019. Following the Deed transfer, Plaintiffs claim that on or about April 12, 2019, Perry contacted Marc Stfleur and informed him that the City was requesting the Tax EIN of the Trust in order to properly record the Deed, and that on or about April 24, 2019, Perry stated that the City would only accept a transfer from the Trust directly to Wallace. Plaintiffs allege that when confronted about the transfer, Perry stated that she was only Wallace’s attorney and to date has repeatedly refused to provide them with copies of everything that they had signed pertaining to the Subject Premises. Plaintiffs have asserted causes of action against Perry for fraud and legal malpractice, and against Wallace for breach of fiduciary duties. Wallace has asserted 12 counterclaims against Plaintiffs.”

“In support of her motion, Perry argues that severance is warranted in the interest of judicial economy and consistency of verdicts. Perry contends that disposition of Plaintiffs claims against Wallace and Wallce’s counterclaims would dispose of the claims against her entirely because if the Court finds that the counterclaims by Wallace fail or if the Amendment is deemed invalid then the deed transfer would revert back to be in accordance with the terms of the original Trust, which named Wallace as the sole beneficiary. Thus, the fraud and legal malpractice claims against Perry would fail because her transfer was proper. Additionally, Perry argues that severance is warranted because this action involves separate and distinct legal theories and questions of law. Perry claims that the causes of action against her are unrelated to the claims against Wallace and that she is not related to any matters involving Wallace because Perry only got involved in this dispute in 2019, whereas Plaintiffs and Wallace’s issues stem back to events that occurred as early as 2010. Furthermore, Perry argues that discovery is incomplete, and the matter should be severed to avoid prejudice towards her. Perry claims that Plaintiffs would not be prejudiced if severance is granted because their claims would still be fully preserved, and they would have an opportunity to pursue them. Moreover, Perry argues Plaintiffs opposition should be disregarded as untimely.”

“In furtherance of convenience or to avoid prejudice the court may order a severance of claims, or may order a separate trial of any claim, or of any separate issue (see CPLR 603; Adamow v Northport-East Northport Union Free School District, 235 AD3d 609 [2d Dept. 2025]; Mullen v Wishner, 178 AD3d 830 [2d Dept. 2019]). The grant or denial of a request for severance is a matter of judicial discretion, which should not be disturbed on appeal absent a showing of prejudice to a substantial right of the party seeking severance (Adamow at 609; FPG CH 94 Amity, LLC v Pizzarotti, LLC, 218 AD3d 654 [2d Dept. 2023]). Severance is appropriate where “individual issues predominate, concerning particular circumstances applicable to each plaintiff … [ and there] is the possibility of confusion for the jury” (Adamow at 609; Belair Care Center, Inc. v Cool Insuring Agency, Inc., 180 AD3d 739 [2d Dept. 2020]; Gittino v LCA Vision, Inc., 301 AD2d 84 7 [3d Dept. 2003]). Severance is inappropriate where the claims against the defendants involve common factual and legal issues, and the interests of judicial economy and consistency of verdicts will be served by having a single trial (Nieto v I 054 Bushwick Ave, LLC, 219 AD3d 754 [2d Dept. 2023]; New York Cent. Mut. Ins. Co. v McGee, 87 AD3d [2d Dept. 2011 ]). Here, the Court finds that Perry has not established entitlement to sever the fraud and legal malpractice causes of action asserted against her from the remaining claims and counterclaims asserted against parties herein. Contrary to Perry’s contentions, the causes of action asserted against all of the defendants present common factual and legal issues. Pursuant to the Complaint, Plaintiffs allege the existence of a scheme by the Defendants to defraud them -the interest of judicial economy and consistency of verdicts would not be served if Plaintiffs had to maintain multiple actions herein (see Itzkowitz v Ginsburg, 186 AD3d 579 [2d Dept. 2020]).”

“But for” causation is highlighted in the technical description of a commercial loan and its consequences in Salamone v Deily & Glastetter, LLP 2025 NY Slip Op 04846 [241 AD3d 1078] September 4, 2025 Appellate Division, First Department. Whether the loan was usurious and how the attorneys interacted with the loss of repayment are discussed.

“The complaint alleges the following facts. In 2019, plaintiff-appellant Kenneth Salamone retained defendant Deily & Glastetter, LLP (D&G) and its partner, defendant Leigh A. Hoffman, Esq.,[FN1] to provide legal advice and drafting assistance in connection with plaintiff’s 30-day loan of $2,000,000 jointly to nonparties EIP Global Fund, LLC and Sridhar Chityala, plaintiff’s partner in another company (the nonparties). Hoffman drafted a demand note for the loan, which plaintiff and the nonparties executed on October 11, 2019. Mr. Chityala signed the note personally and on behalf of EIP. The demand note was due and payable on November 10, 2019 and required the nonparties to pay 10% annual interest on the principal. When the nonparties failed to repay the loan, plaintiff and the nonparties agreed that plaintiff would forbear from enforcing his rights under the demand note for an additional 30 days and the nonparties would pay plaintiff an additional sum of $300,000 to compensate him for his lost opportunity damages resulting from his inability to promptly repurchase Apple stock he had liquidated to fund the original 30-day loan. D&G drafted and counseled plaintiff to sign a forbearance agreement that: (1) imposed a higher interest rate of 20% per year on the unpaid principal commencing on November 27, 2019; (2) set forth the nonparties’ agreement to pay plaintiff $300,000 as a “forbearance fee”; (3) provided that the nonparties would be liable for plaintiff’s counsel fees incurred to enforce the demand note or the forbearance agreement; and (4) granted plaintiff a security interest in certain of Mr. Chityala’s membership interests in EIP and other companies (the Membership Interests), in order to secure the nonparties’ obligations under the demand note and the forbearance agreement.

The forbearance agreement did not set a specific date for payment, but provided that if the nonparties paid the sums due under the default notice by December 4, 2019, the forbearance fee would be reduced to $250,000, and the total sums due to plaintiff would be $2,319,876.70 “plus per diem interest at 20%.” It further provided, “[u]pon payment of the Default Amounts plus all accrued interest, plus the Forbearance Fee on or before December 17, 2019,” plaintiff would deliver a release to the nonparties.

When the nonparties failed to comply with the terms of the forbearance agreement, D&G commenced an action against them on plaintiff’s behalf seeking: (1) a declaratory judgment that plaintiff is entitled to certain financial disclosure provided for in the forbearance agreement; (2) a declaratory judgment that he is entitled to the Membership Interests; (3) damages for fraud; (4) damages for breach of the demand note and forbearance agreement in the amount of $2,369,918.50[FN2] “plus interest from November 27, 2019 in the amount set forth in the forbearance agreement”; and (5) injunctive relief.

The nonparties moved to dismiss, arguing, among other things, that the claims for relief based on breach of contract should be dismissed because the rate of interest was usurious. Specifically, the nonparties argued that since plaintiff sought payment of $2,369,918.50 as of November 27, 2019, on the October 11, 2019 loan of $2,000,000, plaintiff sought interest totaling 143.6% per year.

D&G opposed the motion and cross-moved for summary judgment in plaintiff’s favor. Counsel argued that the forbearance fee was additional principal, not interest. They further asserted that neither EIP nor Mr. Chityala could assert a civil usury defense based on the value of the loan under General Obligations Law § 5-501 (6) (a) (“[n]o law regulating the maximum rate of interest . . . except [Penal Law §§ 190.40; 190.42] shall apply to any loan or forbearance” in the amount of $250,000 or more). Furthermore, since the annual interest rates charged on the face of the forbearance agreement did not reach or exceed the criminal usury rate of 25% per year (Penal Law § 190.40), D&G argued that the forbearance agreement was not usurious. D&G did not argue that the nonparties were estopped from claiming that the forbearance agreement was usurious because plaintiff and the nonparties had a “special relationship” (see Seidel v 18 E. 17th St. Owners, 79 NY2d 735, 743 [1992] [“a borrower may be estopped from interposing a usury defense when, through a special relationship with the lender, the borrower induces reliance on the legality of the transaction”]), nor did the forbearance agreement assert such a relationship.

Supreme Court’s decision noted that General Obligations Law § 5-501 (2) provides that “[t]he amount charged, taken or received as interest shall include any and all amounts paid or payable, directly or indirectly, by any person, to or for the account of the lender in consideration for making the loan or forbearance.” It held that the forbearance agreement was usurious because the “forbearance fee” constitutes interest for the purpose of the usury law. It further held that plaintiff was entitled to sums due under the demand note (see Salamone v EIP Global Fund LLC, 2020 NY Slip Op 32295[U], *5-6 [Sup Ct, NY County 2020], citing General Obligations Law §§ 5-501 [2]; 5-521, and Penal Law § 190.40). Accordingly, Supreme Court dismissed all of plaintiff’s causes of action except for so much of his breach of contract claim as alleged breach of the demand note. On November 9, 2020, Supreme Court entered a judgment in plaintiff’s favor on the demand note in the amount of $2,262,702.44, consisting of the principal amount of the loan with 10% pre-judgment interest and 9% postjudgment interest, and $45,000 representing approximately 60% of D&G’s fees billed to plaintiff at that time.

Plaintiff appealed. D&G argued on appeal that the nonparties were estopped from asserting a usury defense because of their special relationship with plaintiff.[FN3] By decision and order dated April 20, 2021, this Court modified the motion court’s order. We denied the nonparties’ motion to dismiss as to plaintiff’s causes of action for declaratory judgments that he is entitled to certain financial discovery under the forbearance agreement and to the Membership Interests, denied the motion as to the cause of action for contractual attorneys’ fees under the forbearance agreement, and otherwise affirmed.

This Court found that plaintiff had alleged sufficient facts to establish a special relationship with the nonparties that would support a claim for estoppel, and that “[i]n the absence of estoppel, the forbearance agreement is otherwise void as usurious and the forbearance fee is properly considered interest” (Salamone v EIP Global Fund LLC, 193 AD3d 558, 558 [1st Dept 2021]). In reaching that holding, we cited Seidel v 18 E. 17th St. Owners (79 NY2d 735), in which the Court of Appeals held that “a borrower may be estopped from interposing a usury defense when, through a special relationship with the lender, the borrower induces reliance on the legality of the transaction” and that even under those circumstances, the borrower is “entitled, at most, to recovery of the amount advanced, with legal interest” (id. at 743).

Accordingly, this Court’s order permitted plaintiff to pursue his claims under the forbearance agreement for certain financial discovery, transfer of the Membership Interests, and counsel fees. However, because the estoppel defense could only result in recovery of the amount advanced with legal interest (id.), plaintiff could not seek recovery of the $300,000 forbearance fee. Had this Court intended that plaintiff be permitted to seek recovery of the forbearance fee on an estoppel theory, it would have further modified the motion court’s order by reinstating plaintiff’s cause of action for breach of the forbearance agreement, but it did not do so. Accordingly, we reject defendants’ claim in this appeal that this Court’s prior order “paved the way for plaintiff to recover the Forbearance Fee.”

On November 26, 2022, plaintiff commenced this action against D&G and Hoffman seeking damages for legal malpractice. The complaint alleges that, had defendants not drafted a facially usurious forbearance agreement and counseled plaintiff to sign it, he would have “enforced his rights under the Demand Note, and separately documented the [prior] agreement [by discussions and communications with the nonparties] to compensate Plaintiff for his lost opportunity to immediately repurchase the Apple stock he liquidated to fund the 30-day loan. Plaintiff would also not have incurred considerable legal fees expended in exhausting all possible procedural avenues to avoid, minimize, or reduce the damage caused by the usurious Forbearance Agreement that Hoffman drafted, much of which was not reimbursed to Plaintiff.” Defendants moved to dismiss. The motion court granted dismissal for failure to state a cause of action (CPLR 3211 [a] [7]).

Defendants state two reasons why the motion court properly dismissed the complaint. First, defendants argue that defendants could not have committed malpractice given this Court’s previous finding that plaintiff adequately alleged a “special relationship” with the nonparties to support an estoppel defense in the earlier action. Second, defendants view plaintiff’s claim for damages as “speculative.” We reject both arguments.

Defendants’ inclusion in the forbearance agreement of an unenforceable provision that made the agreement facially usurious resulted in additional legal fees for plaintiff, a substantial portion of which have not been reimbursed. The fact that this Court previously found that plaintiff adequately demonstrated in the earlier appeal that he had a “special relationship” sufficient to make out an estoppel claim against the nonparties in the earlier action does not establish that D&G selected a reasonable strategy to accomplish plaintiff’s goals (see Dweck Law Firm v Mann, 283 AD2d 292, 293 [1st Dept 2001] [“Attorneys may select among reasonable courses of action in prosecuting their clients’ cases . . . a purported malpractice claim that amounts only to a client’s criticism of counsel’s strategy may be dismissed”]). Indeed, the fact that defendants failed to raise the estoppel argument until after the case was before this Court strongly suggests that this was not D&G’s strategy at all, but a belated attempt to cover up their errors. Moreover, whether it was a strategy or not, the estoppel claim could not and did not result in plaintiff recouping his lost opportunity costs. Furthermore, for the reasons discussed above, contrary to defendant’s claim, this Court’s prior order does not permit plaintiff to seek the $300,000 forbearance fee under an estoppel theory.

Plaintiff in a malpractice action must ultimately prove that the attorney “failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). “[A]n attorney is obligated to know the law relating to the matter for which he/she is representing a client and it is the attorney’s duty, if he has not knowledge of the statutes, to inform himself, for, like any artisan, by undertaking the work, he represents that he is capable of performing it in a skillful manner” (Fielding v Kupferman, 65 AD3d 437, 440 [1st Dept 2009] [internal quotation marks omitted]). On this record, we find that D&G did not meet their obligation to exercise ordinary skill in representing plaintiff in this transaction by drafting an unenforceable provision that made the forbearance agreement facially usurious.

We also reject the argument that plaintiff’s damages claim is “speculative.” “To survive a pre-answer motion to dismiss pursuant to CPLR 3211 (a) (7), a pleading need only state allegations from which damages attributable to the defendant’s conduct may reasonably be inferred” (Fielding, 65 AD3d at 442 [internal quotation marks omitted]). Here, plaintiff seeks damages to reimburse him for the counsel fees he incurred in attempting to “avoid, minimize, or reduce the damage caused” by the facially usurious forbearance agreement defendants drafted and advised him to sign (see Rudolf, 8 NY3d at 443). Accordingly, plaintiff’s damages attributable to defendants’ conduct are not speculative and can be easily inferred from the complaint.

However, plaintiff is not entitled to pursue his claim that but for defendants’ actions, he would have “separately documented the [prior] agreement [by discussions and communications with the nonparties] to compensate Plaintiff for his lost opportunity to immediately repurchase the Apple stock he liquidated to fund the 30-day loan.” As made clear in this decision, plaintiff is not entitled to recoup his lost opportunity costs beyond the amount he has already obtained a judgment for as that would result in an unenforceable usurious loan, whether or not an estoppel claim lies.”

In a very (very) unusual kind of opinion, Justice Weinmann of Supreme Court, Erie County holds in Hogan v Van Buren, 2025 NY Slip Op 25259 Decided on October 3, 2025 that a suspended attorney may not seek fees from the clients involved in the litigation which caused his suspension.

“Corey Hogan is a well-known western New York attorney who is presently suspended from the practice of law. He now wishes to represent himself in order to sue his former clients to recover legal fees, advances and disbursements for the work which was the rationale for his suspension. He now claims $1.177 million from his former clients.

The threshold issue for this Court to determine is whether Mr. Hogan —as a suspended attorney— has the legal right to represent himself, and furthermore, if he does, whether he has the legal right to sue his former clients for work which was the rationale for his suspension.

The defendants are farmers who sought representation and legal counsel in 2015 from plaintiff, the managing attorney of the Hogan Willig firm, a suburban law firm at the time with over 100 professionals including attorneys, paralegals, and administrative staff. Over the course of more than 2 years, plaintiff provided substantial legal services to defendants; assisted with refinancing efforts; defended against creditor claims; negotiated with creditors; and provided financial analysis to stabilize the business, including farm management services such as the collection of receivables from crop sales; payment of bills; marketing of farm products; coordinating digital mapping of farm fields; contact with customers regarding the sale of farm products; and bookkeeping and accounting services.

In addition, according to the Appellate Division, Fourth Department’s Decision (Matter of Corey J. Hogan et al. [2023 NY Slip Op 00612] [4th Dept 2023], Motion for Leave to Appeal [*2]denied [NY Slip Op 65344] [Court of Appeals 2023]), plaintiff provided his clients with financial assistance in the form of “advances” of funds, the majority of which were used to pay expenses associated with the operation of the farming business, including the purchase of supplies such as fuel, fertilizer, seed, equipment parts, and the payment of other expenses such as trucking costs, wages for farm employees, insurance premiums, land lease payments, and owners’ draws paid to the clients.

Moreover, added the Court, some of the advances of funds were used to pay marketing costs, delinquent balances on debt owed to vendors and creditors, and disbursements associated with lawsuits in which Hogan Willig was representing the clients. The sources of the advances were Hogan’s personal funds; Hogan Willig’s credit card accounts; Hogan Willig’s operating account; and an LLC that was created, solely owned, and funded by Hogan. Plaintiff provided no promissory notes or loan documentation; sale or purchase contracts; leases; or any other memorialization of the terms of repayment.

Furthermore, added the Court, plaintiff purchased 11 pieces of farming equipment, and filed a UCC financing statement listing the defendants as debtors to plaintiff’s LLC, and listing as collateral all crops, livestock, farming equipment and supplies. Finally, plaintiff arranged for 3 mortgages in the amount of $100,00; $150,000, and $250,000 listing Hogan Willig as the mortgagee and defendants as the mortgagor. As if all that were not enough, the Court found that plaintiff did not disclose to his clients the terms of the transactions, nor did he advise his clients of the potential of any conflict of interest, or the advisability of seeking independent legal counsel.

But the straw that broke the camel’s back was plaintiff’s advice to his clients that they file for bankruptcy, after he had steered them into $2.5 million in debt—which did not even include the $1.177 million they allegedly owed to plaintiff for all the good work that he did for them.”

“In 2022, the Appellate Division, Fourth Department issued a 7 page unanimous Opinion listing the aforementioned transactions and much more, and holding that plaintiff violated 5 specific Rules of Professional Conduct. They noted that plaintiff failed to express contrition or remorse and failed to sufficiently acknowledge “his substantial disregard of his ethical obligations . . . .” Accordingly, after due deliberation and consideration, the Court suspended Corey Hogan from the practice of law for a minimum of 2 years.

The Court issued a 2 page Order finding the plaintiff guilty of professional misconduct, and notably held:

“It is further ORDERED that Corey J. Hogan is hereby commanded during the term of [*3]

such suspension to cease and desist from the practice of law in any form either as principal or agent, clerk or employee of another, and his hereby forbidden to appear as an attorney or counselor-at-law before any court, judge, justice, board, commission or other public authority, or to give another an opinion as to the law or its application, or any advice in relation thereto . . . (emphasis added).”

In a case of first impression, it is now up to this Court to determine whether the Order of the Appellate Division prohibits Mr. Hogan from representing himself in order to sue his former clients.”

“Applying both Sassower decisions to the facts at bar, it is evident that there is a significant factual distinguishing circumstance. At bar, the Fourth Department specifically and categorically issued an Order of the Court prohibiting Mr. Hogan from “the practice of law in any form either as principal or agent” (emphasis added). The first Sassower case, from a level below State Supreme Court and in another county of the state, did not reference the specifics, particularities, or actual terms in the Order of Suspension pertaining to Ms. Sassower. Likewise, the Second Department’s Opinion 4 years later also made no mention of the details, particularities, and terms of the Order of Suspension. But notably, the Court narrowed Sassower’s ability to self-represent. There the Court held she could self-represent as an individual, but not as president of her own P.C. (professional corporation). But again, there the facts are distinguishable from those at bar. There are no terms or particularities in the Order referenced. And again, the Second Department is a Court of different, concurrent jurisdiction to the Fourth Department, thus that decision is not controlling. And finally, there the suspended attorney was defending 2 lawsuits —not seeking to proactively file a lawsuit. In sum, the 2 cases cited, while arguably distinguishable, simply do not support any argument that Mr. Hogan may self-represent, in view of the Fourth Department’s extremely limiting and qualifying language in its Order of Suspension.

Finally, Mr. Hogan cited at oral argument the 6th Amendment to the U.S. Constitution for the proposition that courts may not prohibit even non-attorneys from self-representation. Further, he argued, that because he was suspended, and now acting as a non-attorney, he had the constitutional right to represent himself. However, even the U.S. Supreme Court has held that this constitutional right applies only in the realm of criminal law, where a defendant, made to respond to a criminal charge, has the right to self-representation (Faretta v. California, 422 US 806 [1975]). At bar Mr. Hogan seeks the opposite — not to defend, but to affirmatively file a lawsuit —and in a civil— not a criminal court. Thus even the U.S. Constitution and U.S. Supreme Court cannot help Mr. Hogan here.

In view of the aforementioned, this Court now holds that Corey J. Hogan, as an attorney suspended from the practice of law, may not represent himself in filing a lawsuit, whether against his former clients or otherwise.”

“Applying the doctrine of Unclean Hands and Levy, supra and McConnell supra, and Hytco, supra, plaintiff at bar shall not be “permitted to profit by his own fraud, or to take advantage of his own wrong.” Both equity and public policy, as described by the Appellate Division First and Third Departments and the Court of Appeals, therefore would prohibit Mr. Hogan from receiving compensation for his work for the farmers. Hogan’s representation clearly harmed the farmers to the tune of a more than $2 million debt, to say nothing of the ethical morass they could never have anticipated when they sought out assistance and counsel for their foundering farm.

Finally, counsel for the farmers ask this Court to sanction Mr. Hogan by awarding costs and legal fees for his allegedly frivolous conduct in launching this litigation, (22 NYCRR 130). “Frivolous” is defined by the statute as conduct that is completely without merit in law, and cannot be supported by reasonable argument . . . or is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another. At bar, applying extreme logic to the entire saga of events, it cannot be said that Mr. Hogan’s request to be paid for his representation of his clients is “completely without merit,” however unethical the services may have been. After all, there is an old adage that no one works for free. Most would agree that lawyers should be paid for their work. Thus it might be said that while Mr. Hogan’s attempt to get paid could arguably be better characterized as: audacious; ballsy; disingenuous; nervy; [*8]brazen; shameless; or greedy, it is not entirely accurate to characterize it as “frivolous,” as defined by the statute. Really the most functional characterization for Mr. Hogan’s conduct is arguably best described by a term that is not even considered part of the English language but comes from what has been described as one of God’s gifts to humanity, Yiddish. The term most appropriate to characterize Mr. Hogan’s conduct at bar is “chutzpah.” The great author Leo Rosten has described chutzpah as the criminal defendant standing in Court after being convicted of killing his parents, begging for mercy because he is an orphan. That is chutzpah. This Court therefore holds that while Mr. Hogan’s plea in seeking payment for decidedly unethical conduct which caused his suspension from the practice of law is not frivolous, it is unarguably a stunning and breath-taking example of chutzpah. The defendants’ application for sanctions is therefore denied.

For the above-sated reasons, it is therefore

ORDERED, that the defendants’ motion granting summary judgment in favor of the defendants and dismissing Plaintiff’s Complaint in its entirety, on the merits, and with prejudice, is GRANTED; “