Ardent Harmony Fund, Inc. v BDO Trinity Ltd. 2026 NY Slip Op 02090 [248 AD3d 859]

April 8, 2026 Appellate Division, Second Department is the story of a mutual fund domiciled in the Cayman Islands who lost money to a group of New York based credit advisors in an alleged fraudulent scheme. Could the mutual fund sue the accountants in New York?

“The plaintiff is a mutual fund domiciled in the Cayman Islands. In 2014 and 2015, the plaintiff engaged the services of nonparty BDO Cayman Ltd. (hereinafter BDO Cayman), also based in the Cayman Islands, to conduct audits of the plaintiff’s financial statements for the financial years ending December 31, 2013, and December 31, 2014, respectively. BDO Cayman delegated certain work in connection with those audits to the defendant, BDO Trinity Ltd., doing business as BDO Trinidad & Tobago, a company existing under the laws of Trinidad & Tobago, with its principal place of business in Trinidad & Tobago. In November 2019, the plaintiff commenced this action, inter alia, to recover damages for accounting malpractice, alleging that the defendant was negligent in connection with those audits by failing to uncover an alleged fraud perpetrated by New York-based credit advisors with whom the plaintiff had invested the bulk of its assets.”

“”When assessing whether there is personal jurisdiction over a defendant pursuant to the ‘transacts any business’ clause of New York’s long-arm statute, courts must ask whether what the defendant did in New York constitutes a sufficient ‘transaction’ to satisfy the statute” (State of New York v Vayu, Inc., 39 NY3d 330, 332 [2023] [internal quotation marks omitted]). “This inquiry requires the court to determine, based on the facts before it, whether the defendant’s acts in the state were purposeful, that is, whether they were ‘volitional acts by which the non-domiciliary avail[ed] itself of the privilege of conducting activities within the forum State, thus invoking the benefits and protections of its laws’ ” (Greenfader v Chicago Sch. of Professional Psychology, 222 AD3d 845, 847 [2023], quoting State of New York v Vayu, Inc., 39 NY3d at 332).

“To satisfy the second prong, the statute requires an ‘articulable nexus’ or ‘substantial relationship’ between the cause of action sued upon, or an element thereof, and the defendants’ business transactions in New York” (Aybar v US Tires & Wheels of Queens, LLC, 211 AD3d 40, 48 [2022], quoting D&R Global Selections, S.L. v Bodega Olegario Falcon Pineiro, 29 NY3d 292, 298 [2017]; see Lowy v Chalkable, LLC, 186 AD3d 590, 592 [2020]). “While this inquiry is relatively permissive, there must be a ‘relatedness between the transaction and the legal claim such that the latter is not completely unmoored from the former’ ” (id., quoting Licci v Lebanese Can. Bank, SAL, 20 NY3d 327, 339 [2012]; see Rushaid v Pictet & Cie, 28 NY3d at 329). Jurisdiction under CPLR 302 (a) (1) “is proper even though the defendant never enters New York, so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted” (Fischbarg v Doucet, 9 NY3d at 380 [internal quotation marks omitted]).

Here, accepting as true the allegations set forth in the complaint and in opposition to the defendant’s renewed motion, and according the plaintiff the benefit of every favorable inference (see Nick v Schneider, 150 AD3d 1250, 1251 [2017]), the plaintiff failed to make a prima facie showing that the defendant was subject to personal jurisdiction in New York (see Law Off. of Cary Scott Goldinger, P.C. v Deluca, 219 AD3d 598, 600 [2023]; Bloomgarden v Lanza, 143 AD3d 850, 851 [2016]). The complaint alleged that the plaintiff, a Cayman Island fund, hired a Cayman Islands-based auditor to conduct audits of its financial statements, and that the Cayman Islands auditor delegated certain work to the defendant, which is based in Trinidad & Tobago. Jurisdictional discovery established that all of the defendant’s employees are based in Trinidad & Tobago, that all work performed by the defendant in connection with the audits took place in Trinidad & Tobago, and that the defendant’s employees never traveled to New York in connection with the audits. The defendant’s only connection to New York consisted of phone calls and approximately 60 emails with the New York-based credit advisors with whom the plaintiff’s funds were invested. These incidental communications, undertaken by the defendant merely because the credit advisors were domiciled in New York, are insufficient to establish personal jurisdiction over the defendant pursuant to CPLR 302 (a) (1) (see Musial v Donohue, 225 AD3d 1164, 1165 [2024]; Bloomgarden v Lanza, 143 AD3d at 852; CRT Invs., Ltd. v BDO Seidman, LLP, 85 AD3d 470, 471 [2011]).”

Rubin v EFP Rotenberg, LLP 2026 NY Slip Op 02803 May 5, 2026 Appellate Division, First Department is a case about reliance on an accountant and making a loan based upon that advice. Here plaintiff got oral advice as well as some written reports concerning the credit-worthyness of a borrower. This oral advice was insufficient.

“Plaintiff seeks to hold defendant EFP Rotenberg, LLP (EFP), an accounting firm, liable for the loss of his loan to EFP’s client, nonparty Continuity X Solutions, Inc. and Continuity X (together, Continuity). Plaintiff commenced this professional liability action against defendant alleging that but for the advice he received from defendant’s former employees, he would not have invested in Continuity. Specifically, plaintiff maintains that, in 2011 and 2012, defendant and its employees misrepresented the financial condition of Continuity to plaintiff during in-person meetings, as well as in EFP’s 2011 and 2012 audits of Continuity, a draft of the 2012 audit, and Continuity’s Form 10Qs. Plaintiff affirmed that these oral and written misrepresentations led him to invest $300,000 in Continuity on August 24, 2012 because they showed that the company was strong and had $11 million in receivables from AT&T. Contrary to those representations, however, Continuity had significant liabilities that were not disclosed by defendant in its audits. Continuity then defaulted on its promissory note to plaintiff, eventually went bankrupt, and was investigated by the Securities and Exchange Commission.

To impose negligence liability on EFP where, as here, no privity of contract exists between plaintiff and EFP, plaintiff must demonstrate that: (1) EFP was aware that its financial reports would be used for a particular purpose or purposes; (2) plaintiff was a known party to EFP and relied on EFP’s reports in furtherance of that purpose; and (3) EFP’s conduct links them with plaintiff and evinces their understanding of plaintiff’s reliance (see Credit Alliance Corp. v Arthur Andersen & Co., 65 NY2d 536, 551 [1985]).”

“Supreme Court should have granted defendant’s motion for summary judgment dismissing plaintiff’s amended complaint because the record does not establish that plaintiff relied on defendant’s oral and written representations to invest in Continuity (see JP Foodservice Distribs, Inc. v PricewaterhouseCoopers LLP, 33 AD3d 316, 316-317 [1st Dept 2006] [affirming the entry of summary judgment in favor of defendant where “there is no evidence of conduct on defendant’s part linking it to plaintiff and evincing its understanding of plaintiff’s reliance on the closing balance sheet it certified”]). First, plaintiff cannot prove that he reasonably relied on EFP’s September 28, 2012 audit of Continuity because it was not finalized by EFP until after plaintiff invested in Continuity (LaSalle Natl. Bank v Ernst & Young, 285 AD2d 101, 106 [1st Dept 2001] [holding that, because the accountant had only been retained a few weeks before plaintiff increased their loan, “any contention that [plaintiff] had relied up to that time on any responsibility undertaken or statement issued by [accountant] in making its own business decisions to sharply increase financing, would be manifestly insupportable”].

Second, EFP employees’ oral assurances to plaintiff in the spring and autumn of 2012 concerning Continuity’s financial condition are also insufficient to establish reliance. Accountant malpractice does not extend to “a third party’s reliance on alleged verbal assurances” (Lampert v Mahoney, Cohen & Co., 218 AD2d 580, 582 [1st Dept 1995]). At plaintiff’s deposition, he testified that EFP’s former employees did not provide him with written assurances, or any other communications, e-mails, or letters confirming what was communicated to him. He also specifically denied having seen “the drafts of any of the public filings before they were published.” Yet, over two years after his deposition, in opposition to defendant’s motion for summary judgment, plaintiff submitted an affidavit claiming to have relied on a draft of defendant’s audit report that mentioned $11 million in receivables. Plaintiff cannot create an issue of fact by submitting an affidavit that contradicts his deposition testimony (see e.g. Kistoo v City of New York, 195 AD2d 403, 404 [1st Dept 1993]).”

There is a certain category of legal malpractice cases which arise when the client recovers a settlement or verdict, but is unhappy with the fees, distributions, liens, or disbursements, and the entire process goes wrong. Maurer v Mickel 2026 NY Slip Op 03712 June 11, 2026 Appellate Division, Third Department is an example.

“This appeal arises from a dispute concerning the payment of counsel fees, disbursements and liens from a settlement recovered by plaintiffs in the underlying personal injury action stemming from a motor vehicle accident between plaintiff Michelle L. Maurer and defendant Sherrie S. Mickel. Following motion practice by plaintiffs’ original counsel, Harding Mazzotti LLP (hereinafter Harding), Supreme Court granted plaintiffs’ motion for partial summary judgment on the issue of liability and scheduled a trial as to damages. Subsequently, the relationship between Harding and plaintiffs deteriorated. Following a series of motions, Supreme Court granted Harding’s application to be relieved as counsel for plaintiffs and awarded the firm a charging lien upon any recovery obtained in the action.

Plaintiffs subsequently retained Dalmata Maloy & Burke, LLP (hereinafter Dalmata) and entered into a contingency fee agreement with that firm. The matter settled shortly before trial and the proceeds were distributed to Dalmata. Soon thereafter, Harding and Dalmata agreed to reduce their counsel fees, plaintiffs signed a general release and a stipulation of discontinuance was filed. Dalmata then prepared and transmitted to plaintiffs a statement of settlement itemizing the disbursements, liens and counsel fees to be deducted from the gross recovery. Dalmata tendered checks representing plaintiffs’ net recovery after such deductions and advised that it was holding the remaining funds in escrow pending resolution of plaintiffs’ objections to the payment of certain disbursements and lien claims from the proceeds. Upon receiving the settlement checks and statement of settlement, plaintiffs purported to terminate Dalmata for cause and demanded the remaining funds held in escrow. Plaintiffs similarly notified Harding that the firm was discharged for cause and not entitled to compensation, notwithstanding the fact that Harding was previously relieved as counsel and awarded a charging lien.

Dalmata moved by order to show cause for, among other things, an order directing payment of counsel fees and disbursements from the settlement funds, permitting the deposit of the remaining funds with the court pending resolution of the outstanding lien claims and relieving the firm as plaintiffs’ counsel. Plaintiffs, proceeding in a self-represented capacity, appeared on the return date of the motion and verbally requested a hearing as to counsel fees and disbursements. Prior to the scheduled hearing, plaintiffs filed a purported cross-motion alleging that Dalmata was discharged for cause due to legal malpractice and therefore not entitled to compensation in the underlying action. Supreme Court established a briefing schedule with regard to plaintiffs’ purported cross-motion and proceeded with the previously scheduled hearing on Dalmata’s motion. After the hearing, plaintiffs served an amended cross-motion, purporting to allege a cause of action for legal malpractice against Dalmata. Supreme Court thereafter issued an order granting Dalmata’s motion and directing the payment of counsel fees, disbursements and certain liens from the settlement funds. With regard to plaintiffs’ amended cross-motion, Supreme Court deemed it to be procedurally defective because it was unaccompanied by a notice of motion but nonetheless addressed the merits, finding that the malpractice allegations were improperly asserted in the context of plaintiffs’ personal injury lawsuit and were otherwise legally and factually deficient. This appeal by plaintiffs ensued.

Initially, Supreme Court properly denied plaintiffs’ amended cross-motion. Construing plaintiffs’ amended cross-motion as asserting a claim for legal malpractice against Dalmata, a cause of action for legal malpractice must be asserted in a separate plenary action wherein a plaintiff must establish that the defendant “failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, that this failure was the proximate cause of actual damages to the plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action but for the attorney’s negligence” (Stone Cast, Inc. v Couch, Dale Marshall P.C., 242 AD3d 1415, 1417 [3d Dept 2025] [internal quotation marks and citations omitted]; see Scott v Schwartz, 236 AD3d 1273, 1275 [3d Dept 2025]). Here, plaintiffs’ attempt to assert a malpractice cause of action via cross-motion, rather than by separate plenary action, is a legal nullity. In any event, plaintiffs’ conclusory allegations fail to set forth the essential elements to state a prima facie claim of legal malpractice (see Mid-Hudson Val. Fed. Credit Union v Quartararo & Lois, PLLC, 155 AD3d 1218, 1220 [3d Dept 2017], affd 31 NY3d 1090 [2018]; Rodriguez v Jacoby & Meyers, LLP, 126 AD3d 1183, 1185-1186 [3d Dept 2015], lv denied 25 NY3d 912 [2015]). To the extent that plaintiffs argue that the amended cross-motion was not framed as a legal malpractice cause of action, this claim is refuted by plaintiffs’ request for a preliminary conference, discovery and a jury trial on their malpractice allegations — relief ordinarily available only in a plenary action.

Even construing the amended cross-motion as merely seeking to establish that Dalmata and Harding were discharged for cause and therefore not entitled to compensation from the settlement funds, the record demonstrates that no cause existed. Harding was relieved as counsel for plaintiffs due to the irreparable breakdown of their attorney-client relationship, and Dalmata was abruptly terminated by plaintiffs only after counsel had secured a favorable settlement on their behalf. It is well settled that generalized dissatisfaction with counsel’s performance, disagreements over litigation strategy or loss of confidence do not, without more, constitute cause for discharge (see Doviak v Lowe’s Home Ctrs. Inc., 134 AD3d 1324, 1326 [3d Dept 2015], lv denied 27 NY3d 904 [2016]; Wiggins v Kopko, 105 AD3d 1132, 1134 [3d Dept 2013]). Rather, a discharge for cause requires a showing of misconduct, a significant breach of legal duty, or a failure to properly represent the client’s interests, none of which were established here (see Sprole v Sprole, 151 AD3d 1405, 1406 [3d Dept 2017]). Inasmuch as plaintiffs’ allegations failed to even raise a colorable claim of discharge for cause, the requirement for a formal evidentiary hearing on plaintiffs’ allegations was not triggered (see Kasmin v Josephs, 228 AD3d 431, 432 [1st Dept 2024]; Sprole v Sprole, 151 AD3d at 1406; Roe v Roe, 117 AD3d 1217, 1218 [3d Dept 2014]).

Finally, Supreme Court did not abuse its discretion in denying the repeated requests for recusal made by plaintiffs throughout the proceedings. Absent a statutory basis for disqualification, which was not asserted herein, recusal is a matter committed to the trial court’s sound discretion (see Judiciary Law § 14; McAuliffe v McAuliffe, 209 AD3d 1119, 1120-1121 [3d Dept 2022]). Here, plaintiffs’ unsubstantiated suspicions of bias are unsupported by the record and therefore patently insufficient to require recusal (see Ricky SS. v Christine SS., 241 AD3d 1009, 1015 [3d Dept 2025]; Kopko v Kopko, 229 AD3d 974, 976 [3d Dept 2024], lv dismissed 42 NY3d 1086 [2025]; McAuliffe v McAuliffe, 209 AD3d at 1120-1121). The record demonstrates that Supreme Court managed all stages of the proceedings with impartiality and patience, notwithstanding plaintiffs’ combative and disrespectful behavior in the courtroom, and issued rulings based on the merits of the case rather than any alleged bias against plaintiffs (see Kopko v Kopko, 229 AD3d at 976; Matter of Patrick UU. v Frances VV., 200 AD3d 1156, 1161 [3d Dept 2021]).”

An extrememly disturbing death of a four-year old is the setting for reevaluation of the quasi-judicial immunity of attorneys for the child/law guardians. Changes in the law and changes in their duties is discussed in Adams v County of Cortland 2026 NY Slip Op 26084 June 4, 2026 Supreme Court, Cortland County Mark G. Masler, J.

“This action arises from the tragic death of a child at the hands of his father on May 29, 2024, just days after his fourth birthday. In July 2021, when the child was approximately 13 months old, the Cortland County Department of Social Services (DSS) commenced a neglect proceeding pursuant to Family Court Act article 10 against the child’s biological mother (the article 10 proceeding) and Citizens Concerned for Children, Inc. (CCFC) was appointed attorney for the child. As a result of the article 10 proceeding, DSS was granted custody of the child and placed him with foster parent Samantha Adams. On January 1, 2022, Lenore LeFevre became employed as an attorney with CCFC and was assigned to represent the child. Custody of the child was restored to the mother in September 2022. On November 10, 2022, the child was removed from the custody of the mother and returned to foster care. On January 10, 2023, an order was entered in Family Court placing the child under the supervision of DSS. On August 16, 2023, the results of a DNA test confirmed that Joshua Emmons is the child’s biological father. On October 12, 2023, while the article 10 proceeding was still pending, Emmons filed a petition for custody pursuant to Family Court Act article 6 seeking sole custody and placement of the child (the article 6 proceeding). CCFC was appointed as attorney for the child in the article 6 proceeding and assigned LeFevre to represent the child therein. In December 2023, the foster mother filed a motion to intervene in the article 6 proceeding.

The father had unsupervised visitation with the child at the father’s home in Syracuse on several occasions during the pendency of the article 6 and 10 proceedings. On February 25, 2024, the foster mother reported to DSS employees that upon returning from visits with the biological father, the child had told her that ” ‘Daddy Josh hit me, and I don’t like it,’ that he had been struck on both his head and buttocks, and that he did not want to go back to his biological father’s residence” (NY St Cts Elec Filing [NYSCEF] Doc No. 1, complaint, ¶ 68). On March 4, 2024, the foster mother met with DSS employees to express her concern that the child was being abused by the biological father and did not want to return to the father’s residence (complaint ¶ 75). Plaintiff alleges that the foster mother withdrew her motion to intervene in the custody proceeding in reliance upon the recommendations and advice of DSS personnel, who represented that withdrawal of the motion would enable DSS to continue to supervise and monitor the child’s safety while he was in the custody of the biological father.

At a settlement conference that was held in Family Court on March 13, 2024 — in which LeFevre and counsel for DSS participated — it was agreed that the biological parents would have joint legal custody, the father would have primary placement, and that the permanency hearing in the article 10 proceeding still pending against the mother would be canceled. On March 26, 2024, the child began living with the biological father in Syracuse in accordance with the agreement made at the settlement conference. An order implementing the agreement regarding custody of the child was entered in Family Court on April 4, 2024. On May 26, 2024, the child was transported to Upstate University Hospital with injuries that included blunt force trauma to his head. The child died from his injuries on May 29, 2024. In 2025, the biological father pled guilty to first-degree manslaughter and was sentenced to a 25-year prison term.

The foster mother commenced this action as administrator of the child’s estate contending, in summary, that defendants were negligent in failing to properly investigate the father’s fitness as a parent, including the failure to discover that he had been previously convicted of violating Penal Law § 260.10 (1) for endangering the welfare of a child, and that DSS was additionally negligent in failing to investigate the foster mother’s reports that the child had been abused by the biological father. LeFevre and CCFC made a pre-answer motion to dismiss based on the assertion they have judicial immunity from all claims asserted in the action (NYSCEF motion number one). Cortland County made a pre-answer motion to dismiss based on the arguments that it is entitled to governmental and judicial immunity and, further, that it owed R.B. no duty for the allegedly negligent acts (NYSCEF motion number two). Oral argument was heard, in person, on April 8, 2026.”

“The complaint alleges, in summary, that R.B. suffered damages as a result of LeFevre having breached the duty she owed to R.B. as his attorney by, among other things, failing to: properly investigate the biological father’s parental fitness, speak with R.B. about his experiences with the biological father and the child’s wishes during the proceedings, and gain a thorough knowledge of the child’s circumstances (see complaint ¶¶ 2, 12-19, 47-52, 56-60, 62-66, 73-74, 80, 82-83, 85-91, 103-116). On a motion to dismiss, these allegations must be accepted as true and plaintiff must be accorded every possible favorable inference. Accordingly, the complaint sufficiently pleads claims against the AFC for legal malpractice (see Miazga v Assaf, 136 AD3d 1131, 1133 [3d Dept 2016]; lv dismissed 27 NY3d 1078 [2016]; Bixby v Somerville, 62 AD3d 1137, 1139 [3d Dept 2009]), and for wrongful death arising therefrom, for which CCFC would be liable as her employer. LeFevre and CCFC do not move to dismiss based on a failure to state a cause of action, but rather based solely on the contention that the AFC is entitled to absolute quasi-judicial immunity in this action that was commenced on behalf of the child for claims arising from a custody proceeding, citing Bluntt v O’Connor (291 AD2d 106, 116-119 [4th Dept 2002], lv denied 98 NY2d 605 [2002]).

Bluntt does not establish that the AFC is entitled to immunity in this action. In Bluntt, the court held that an action brought by a parent asserting a claim for professional negligence against a law guardian appointed for the child in a custody proceeding should have been dismissed for lack of standing. The parent lacked standing to bring a claim as a representative of the child, pursuant to CPLR 1201, because the parent’s interests were adverse to those of the child (see id. at 113-114). The parent also lacked standing to bring an action individually because the parent was not in privity with the law guardian (see id. at 114-115). The Appellate Division, Fourth Department, noted that the motion to dismiss the action based on the parent’s lack of standing should have been granted (see id. at 113, 119-120). This determination should have ended the inquiry. However, no doubt due to the important policy considerations at stake, the court noted in dicta that, were it to address the merits, it would have found that a law guardian acting primarily as an aid to the court in determining the best interests of a young child, rather than as an advocate for the child’s wishes, has absolute quasi-judicial immunity from claims made by “disgruntled parents” for acts within the scope of his or her appointment (id. at 116; see id. at 115-119). Thus, the Bluntt dicta stands, if at all, for the proposition that a law guardian is entitled to immunity against claims made by a parent, in his or her individual capacity, when the law guardian was acting as an aid to the court.^FN1

This action is not brought by a parent of R.B. who had an independent interest in the underlying custody proceeding. Rather, it is brought directly on behalf of the child by the administrator of his estate. This alone makes Bluntt inapplicable. Bluntt is further distinguishable because it was decided based on the policy consideration that law guardians should be entitled to quasi-judicial immunity to the extent they acted as an arm of the court in providing independent judgment to aid the court in determining the best interests of the affected child. This is not the role of an attorney for the child, who is required to act as an advocate for the child and not as an independent investigator or advisor to the court.

When Bluntt was decided in 2002, attorneys were appointed to represent children in custody proceedings as law guardians. There was traditionally long-standing ambiguity about the proper role of law guardians.

“First and foremost, the Law Guardian is the attorney for the child and must take an active role in the proceedings. In that role as attorney, the Law Guardian has the statutorily directed responsibility to represent the child’s wishes as well as to advocate the child’s best interest. Because the result desired by the child and the result that is in the child’s best interest may diverge, Law Guardians sometimes face a conflict in such advocacy” (Matter of Carballeira v Shumway, 273 AD2d 753, 755 [3d Dept 2000], lv denied 95 NY2d 764 [2000] [internal quotation marks and citations omitted]; see Merril Sobie, Prac Commentaries, McKinney’s Cons Laws of NY, Book 29A, Family Ct Act § 241).

Nonetheless, “a Law Guardian may properly attempt to persuade the court to adopt a position which, in the Law Guardian’s independent judgment, would best promote the child’s interest, even if that position is contrary to the wishes of the child” (id. [internal quotation marks and citations omitted]). Thus, as can also be gleaned by reviewing the court’s analysis in Bluntt, law guardians were often seen as exercising their independent judgment to aid the court in determining the best interests of the child rather than acting as advocates for the child (see Bluntt v O’Connor, 291 AD2d at 116-118 [noting the conflict between the roles of law guardian as advocate of the child and as representative of the court and concluding that the court benefits in determining the best interests of the child when the law guardian acts as a representative of the court by exercising his or her impartial judgment]). It was this role as an independent aid to the court that the Appellate Division, Fourth Department, opined justified extending quasi-judicial immunity to law guardians.

The role of a law guardian was later substantially clarified in October 2007, when section 7.2 of the Rules of the Chief Judge (22 NYCRR) was promulgated designating law guardians appointed pursuant to Family Court Act § 249 as attorneys for the child.^FN2 This rule also provides, in relevant part,

“In [custody proceedings], where the child is the subject, the attorney for the child must zealously advocate the child’s position.

“(1) In ascertaining the child’s position, the attorney for the child must consult with and advise the child to the extent of and in a manner consistent with the child’s capacities, and have a thorough knowledge of the child’s circumstances.

“(2) If the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child’s best interests. The attorney should explain fully the options available to the child, and may recommend to the child a course of action that in the attorney’s view would best promote the child’s interests.

“(3) When the attorney for the child is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child, the attorney for the child would be justified in advocating a position that is contrary to the child’s wishes. In these circumstances, the attorney for the child must inform the court of the child’s articulated wishes if the child wants the attorney to do so, notwithstanding the attorney’s position” (22 NYCRR 7.2 [d]).

Any former ambiguity in the role of attorneys for the child has been conclusively resolved by rule 7.2 and the recognition that an attorney for the child “is an advocate and neither an investigative arm of the court nor an advisor to the court” (Matter of VanDee v Bean, 66 AD3d 1253, 1255 [3d Dept 2009] [internal quotation marks, brackets, and citations omitted]). Indeed, an attorney for the child is permitted to adopt a position that does not reflect the child’s wishes in only two circumstances: “specifically, when he or she ‘is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child’ ” (Matter of Jennifer VV. v Lawrence WW., 182 AD3d 652, 653-654 [3d Dept 2020], quoting 22 NYCRR 7.2 [d] [3] [additional citation omitted]). In this regard, an attorney for the child may conclude that a child lacks the capacity for knowing judgment only when the attorney has “a thorough knowledge of the child’s circumstances” and consults with, and advises, the child in a manner consistent with the child’s capacities (22 NYCRR 7.2 [d] [1]; see Matter of Jennifer VV. v Lawrence WW., 182 AD3d at 654-655; Matter of Schenectady County Dept. of Social Servs. v Joshua BB., 168 AD3d 1244, 1245 [3d Dept 2019]).^FN3 Indeed, the attorney for the child has a duty to advise the court of the child’s wishes even in circumstances when the attorney for the child concludes that he or she is justified in advocating a contrary position (see 22 NYCRR 7.2 [d] [3]; Matter of K.G. v C.H., 163 AD3d 67, 81 n 5 [1st Dept 2018]). These provisions emphasize the role of an attorney as an advocate rather than an arm of the court (see Venecia V. v August V., 113 AD3d 122, 125-126 [1st Dept 2013]; Matter of Mark T. v Joyanna U., 64 AD3d 1092, 1093-1094 [3d Dept 2009]).

Thus, when LeFevre was appointed to represent R.B. in the custody proceeding commenced by the biological father, she was required to obtain a thorough knowledge of the child’s circumstances, to consult with and advise him in accordance with his capacities, and to advocate on his behalf. In other words, she was required to act as his advocate and not as an independent aid to the court in determining R.B.’s best interests. Accordingly, even if the principle that was discussed in Bluntt was extended to cover claims brought directly on behalf of a child, rather than being limited to those brought by a parent, she was not acting as in a capacity that would have potentially entitled her to immunity under Bluntt.

The question thus becomes whether an attorney for the child has immunity against claims of legal malpractice asserted by a child the attorney represented in a custody proceeding. This issue does not appear to have previously been squarely addressed by a New York State court. However, the United States District Court for the Eastern District of New York, relying on an opinion of the Appellate Division, Third Department, which set forth the standards for effective representation of children in custody proceedings, has recognized that a cause of action for legal malpractice against an attorney for the child exists under facts similar to those alleged in this action (see Zubko-Valva v County of Suffolk, 2022 WL 2197137, *6, 2022 US Dist LEXIS 108489, *18-21 [ED NY June 17, 2022, No. 220-cv-2663, Korman, J.], citing Matter of Mark T. v Joyanna U., 64 AD3d at 1094-1095). Further, the Appellate Division, First Department, noted that an attorney for the child “no less than the attorneys for the parties, is serving as a professional and must be equally accountable to professional standards” in holding that a parent may assert legal malpractice as an affirmative defense to a fee claim of an attorney for the child (Venecia V. v August V., 113 AD3d at 126). If a parent may assert legal malpractice as a defense to a purely financial harm, then certainly a child who bears actual harm from a failure to meet professional standards should be permitted to assert claims of legal malpractice against an attorney for the child. Based on the foregoing, the motion to dismiss made by Lefevre and CCFC must be denied.”

Oberlander v Simon 2026 NY Slip Op 03450 June 3, 2026 Appellate Division, Second Department is the culmination of years of disputes between Plaintiff and others concerning Felix Sater.

“In June 2022, the plaintiffs commenced this action, inter alia, to recover damages for a violation of Judiciary Law § 487. The plaintiffs alleged that in April 2015, the defendant Bradley D. Simon, through his former law firm, the defendant Simon & Partners, LLP, replaced the plaintiff Frederick M. Oberlander as counsel of record for Jody Kriss in two actions pending in the United States District Court for the Southern District of New York. Thereafter, in November 2015, at a hearing held in connection with Kriss’ purported contempt of certain sealing orders, Felix Sater presented a pro se brief allegedly filed by Kriss, indicating that Kriss was in possession of documents that were previously ordered to be destroyed. In response, Simon argued that Kriss had never seen the brief before. After the hearing, Simon also filed an affidavit, on behalf of Kriss, in which Kriss averred that “he never approved filing anything under seal.”

“Here, accepting the allegations in the complaint as true and according the plaintiffs the benefit of every possible favorable inference, the allegations were insufficient to establish that the alleged acts of deceit were the proximate cause of any injury to the plaintiffs (see Judiciary Law § 487; Langton v Sussman & Watkins, 238 AD3d at 730; cf. Garanin v Hiatt, 219 AD3d 958, 959).”

Oberlander v Kriss 2026 NY Slip Op 03449 June 3, 2026 Appellate Division, Second Department is puzzling. While Plaintiff is pro-se, still.

“In November 2021, the plaintiffs commenced this action to recover damages for, inter alia, unpaid legal fees, expenses, and disbursements against the defendants Jody Kriss and Michael “Chudi” Ejekam. In October 2022, the plaintiffs filed an amended complaint adding Bradley Simon, Simon & Partners, LLP, and Schlam Stone & Dolan, LLP, as defendants. The plaintiffs alleged, among other things, that Simon violated Judiciary Law § 487.

Thereafter, Kriss, Simon, and Schlam Stone & Dolan, LLP (hereinafter collectively the defendants), moved pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them. The plaintiffs did not oppose the motion. In an order dated February 10, 2023, the Supreme Court granted the defendants’ unopposed motion. The plaintiffs appeal.

No appeal lies from an order made upon the default of the appealing party (see id. § 5511). “The proper procedure is for the defaulting party to seek to vacate [his or her] default and, if necessary, appeal the denial of that request” (Feldman v Feldman, 185 AD3d 552, 554).

Here, the appeal must be dismissed, as the order was entered upon the plaintiffs’ default (see CPLR 5511; Weaver v Hatem, 241 AD3d 1388).”

Anecdotally, we believe that legal malpractice cases are dismissed on CPLR 3211 motions at a greater frequency than are other professional malpractice or other negligence cases. Here is one dismissal that was reversed, in Gale v Abramowitz . 2026 NY Slip Op 03388, June 2, 2026 Appellate Division, First Department .

“This legal malpractice action arises from defendants’ representation of plaintiff during post-judgment divorce proceedings. Plaintiff retained defendants to recover her share of profit distributions pursuant to her postnuptial agreement. Plaintiff alleges that during the proceedings, defendants negligently failed to submit into evidence tax documents that plaintiff’s expert relied on in his recommendation. As a result, the referee awarded plaintiff less than the full amount of distributions she sought, compelling her to retain new counsel. After motion practice and a hearing before Supreme Court on the distribution issue, new counsel secured the full distribution award plaintiff initially sought. Plaintiff alleges damages in the form of legal and expert fees incurred in the process.

Supreme Court should have denied defendants’ motion to dismiss the complaint because plaintiff stated a claim for legal malpractice (see RTW Retailwinds, Inc. v Colucci & Umans, 213 AD3d 509, 510 [1st Dept 2023]). Plaintiff sufficiently alleged that defendants were negligent in failing to introduce the tax documents necessary to secure the full distribution award to which she was entitled. Plaintiff also sufficiently alleged that, but for defendants’ negligence, she would not have incurred at least a portion of the attorneys’ fees she paid to secure the proper distribution award. Plaintiff may seek damages for “litigation expenses incurred in an attempt to avoid, minimize, or reduce the damage caused by [defendants’] wrongful conduct” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 443 [2007] [internal quotation marks omitted]).

The complaint states allegations from which damages attributable to defendants’ conduct may reasonably be inferred (see Fielding v Kupferman, 65 AD3d 437, 442 [1st Dept 2009]). In the complaint, plaintiff sufficiently alleges that her fee award only partially covered the actual costs she incurred in the litigation. Whether and to what extent the fee award covers the actual fees paid by plaintiff need not be determined at this stage (see Fielding, 65 AD3d at 442; see also Fletcher v Boies, Schiller & Flexner, LLP, 75 AD3d 469, 469 [1st Dept 2010]).

Defendants’ estoppel arguments are unavailing. The issues raised in this legal malpractice action were not raised in the prior post-judgment divorce proceedings (seeParker v Blauvelt Volunteer Fire Co. , 93 NY2d 343, 349 [1999]).”

Dual Diagnosis Treatment Ctr., Inc. v Yellowstone Capital W., LLC 2026 NY Slip Op 03292 May 27, 2026 Appellate Division, Second Department is one of the rare cases where Supreme Court grants a motion to dismiss a JL 487 claim and the Appellate Division reverses.

“ORDERED that the order is modified, on the law, by deleting the provision thereof granting those branches of the motion of the defendants Viceroy Capital Funding, Richmond Capital, Michelle D. Gregg, Robert Giardina, and Marcella G. Rabinovich which were pursuant to CPLR 3211(a) to dismiss the first, second, fourth, and fifth causes of action insofar as asserted against them, and substituting therefor a provision denying those branches of the motion; as so modified, the order is affirmed, without costs or disbursements.

The plaintiffs commenced this action to recover damages for abuse of process (fourth cause of action), violation of Judiciary Law § 487 (fifth cause of action), and violation of the Racketeer Influenced and Corrupt Organizations Act (RICO) (18 USC § 1961 et seq.) (sixth cause of action), for declaratory relief (first cause of action), an accounting (seventh cause of action), and the imposition of a constructive trust (third cause of action), and to vacate certain judgments by confession (second cause of action). The plaintiffs alleged, inter alia, that the defendants Viceroy Capital Funding (hereinafter VCF) and Richmond Capital (hereinafter RC) held themselves out as merchant cash advance (hereinafter MCA) businesses. The plaintiffs further alleged that the defendant Robert Giardina was the managing partner of VCF and RC, that the defendant Michelle D. Gregg was a principal and agent of VCF and RC, and that the defendant Marcella G. Rabinovich is an attorney who represented VCF and RC.

According to the complaint, the defendants acted in concert to “dupe” the plaintiffs “into an unconscionable series of transactions.” The plaintiffs entered into MCA agreements with VCF, among others, secured by affidavits of confession of judgment. Thereupon, Rabinovich allegedly filed judgments by confession based upon false statements made by Rabinovich and Gregg. VCF then allegedly directed a New York City Marshal to serve a restraining notice on the plaintiffs’ bank account, freezing their account, placing economic pressure on them, and causing them to execute a settlement agreement with VCF “under duress.””

“The Supreme Court also should have denied that branch of the VCF defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the fifth cause of action, which was asserted only against Rabinovich. “Judiciary Law § 487 imposes civil liability on any attorney who is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive . . . any party” (Garanin v Hiatt, 219 AD3d 958, 959 [alteration and internal quotation marks omitted]). Here, the complaint alleged that Rabinovich intentionally applied for judgments by confession with false supporting affidavits and acted upon those judgments by confession when the plaintiffs had not defaulted, falsely claimed that she no longer represented certain parties when the plaintiffs demanded an accounting, and knowingly colluded with the other defendants to commit “fraud on the Court” and to obtain funds from the plaintiffs that exceeded any amount lawfully owed. Thus, accepting the allegations in the complaint as true and according the plaintiffs the benefit of every possible favorable inference, the complaint adequately stated a cause of action against Rabinovich to recover damages for violation of Judiciary Law § 487 (see Garanin v Hiatt, 219 AD3d at 959).”