Attorney takes over for departing defense counsel in a trip-and-fall case.  Attorney moves for dismissal, fails.  Attorney takes the case to trial, succeeds with a defense verdict.  Attorny want to get paid, isn’t.  Attorney sues client  Flanagan Law, PLLC v Perno  2020 NY Slip Op 51488(U) [70 Misc 3d 1201(A)] Decided on December 18, 2020 Supreme Court, New York County Lebovits, J. discects both sides’ errors.

I. Plaintiff’s Motion for Summary Judgment

 

A. Plaintiff’s Claim for an Account Stated

 

Plaintiff moves for summary judgment on its cause of action for an account stated. The motion is denied.

An account-stated claim arises from an implicit agreement between the parties on the amount that one party owes the other on past transactions between them. (See Rodkinson v Haecker, 248 NY 480, 485 [1928].) A party seeking judgment as a matter of law on an account-stated claim must show that the invoices were properly addressed and mailed to a client, using a regular office mailing procedure. (See Morrison Cohen Singer & Weinstein, LLP v Brophy, 19 AD3d 161, 161-162 [1st Dept 2005].) In addition, plaintiff must establish “with admissible evidence, the receipt and retention of bills without objection within a reasonable time.” (LD Exch., Inc. v Orion Telecom. Corp., 302 AD2d 565, 565 [2d Dept 2003].)

Plaintiff has not met that burden here. It relies on one conclusory statement in an affidavit from its principal, Richard J. Flanagan, that invoices were mailed to the address provided by defendants based on plaintiff’s normal office procedure.[FN1] But plaintiff provides no information about that putative office procedure. And there is no documentary evidence indicating that the invoices were mailed, mailed to the correct address, paid in part, or received and retained without objection. Indeed, the invoices attached to plaintiff’s motion papers do not [*3]even list defendants’ address(es) at all.[FN2]

B. Plaintiff’s Claim for Breach of Contract

 

Plaintiff also moves for summary judgment on its contract claim. This court concludes that the motion should be denied because plaintiff has not established prima face its entitlement to judgment as a matter of law.

To prevail on a breach of contract claim, a party must establish the existence of a contract, the plaintiff’s performance, the defendant’s breach of that contract, and resulting damages. (Harris v Seward Park Hous. Corp., 79 AD3d 425, 426 [1st Dept 2010].) In the case of an attorney-client relationship, 22 NYCRR § 1215.1 requires attorneys to provide all clients with a written letter of engagement or to execute a written retainer agreement explaining the scope of legal services, the fees to be charged, billing practices to be followed, and the right to arbitrate a dispute. (Seth Rubenstein, P.C. v Ganea, 41 AD3d 54, 60 [2d Dept 2007].)

Here, plaintiff has not submitted an attorney-client retainer agreement or letter of engagement to establish that it satisfied the requirements of § 1215.1. Defendant Thomas Perno also represents in an affidavit that no such letter or agreement was provided or executed. Although plaintiff disputes Perno’s representation in his affidavit, it does not offer any documentary evidence supporting its assertion that a retainer agreement existed from the outset.[FN3] Thus, with respect to the breach-of-contract claim plaintiff has thus failed to offer sufficient evidence to meet its initial prima facie burden at summary judgment.

C. Plaintiff’s Claim in Quantum Meruit

 

Alternatively, plaintiff claims that it is entitled to the reasonable value of its legal services in quantum meruit. This court again concludes that plaintiff’s motion for summary judgment should be denied.

It is true that an attorney’s failure to comply with the rules on retainer agreements or engagement letters established in 22 NYCRR § 1215.1 would not preclude it from later recovering legal fees in quantum meruit. (See Miller v Nadler, 60 AD3d 499, 500 [1st Dept 2009].) But plaintiff has not established the absence of any material dispute of fact. To recover in quantum meruit, a plaintiff must establish “(1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services.” (Fulbright & Jaworski, LLP v Carucci, 63 AD3d 487, 489 [1st Dept 2009].) Defendants in this case have submitted affidavits and documents to dispute that plaintiff performed services in good faith—suggesting both that plaintiff padded its legal bills by performing unnecessary services and submitted a bare-bones summary-judgment motion that was plainly inadequate on its face. This court concludes that defendants have thereby established a material dispute of fact that precludes the grant of summary judgment on plaintiff’s quantum-meruit claim.

II. Defendants’ Cross-Motion for Summary Judgment

 

Defendants cross-move for summary judgment on their malpractice counterclaim. The motion is denied.

A party must establish three elements to recover on a legal-malpractice claim: negligence of the attorney accused of malpractice, proximate causation between the attorney’s negligence and the loss sustained by the client, and proof of actual damages. (See Levine v Lacher & Lovell-Taylor, 256 AD2d 147, 149 [1st Dept 1998].) The first element requires a malpractice claimant to adduce evidence that establishes, through more than allegations of deficiencies in plaintiff’s conduct as an attorney, that plaintiff failed to meet the standard of professional care and skill. (See Thaler & Thaler v Gupta, 208 AD2d 1130, 1132 [3d Dept 1994].) To show proximate cause in a legal malpractice claim, the claimant must establish that “but for” the attorney’s negligence, the claimant would have prevailed or would not have sustained any damages. (See Levine, 256 AD2d at 149.) Therefore, “to sustain a claim for legal malpractice, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the Underlying Action ‘but for’ the attorney’s negligence.” (Leder v Spiegel, 9 NY3d 836, 837 [2007] [internal citations omitted].)

Defendants here emphasize that in their view plaintiff’s summary-judgment motion in the underlying action was so thin and unsupported as to fall below basic standards of professional care. And they assert that as a result of the (putative) deficiencies of this affidavit, defendants fared worse at summary judgment than other defendants with weaker positions in the underlying action. This court is skeptical, though, that defendants’ legal position in the underlying action (or that of the other defendants in the action), and thus the requisites of a proper summary-judgment motion in that action, are “part of an ordinary person’s daily experience.” (Suppiah v Kalish, 76 AD3d 829, 832 [1st Dept 2010] [reversing grant of summary judgment on malpractice claim].) Defendants were therefore required to come forward on this motion with an expert affidavit to [*4]establish each element of their malpractice claim. They have not done so.

Additionally, defendants have not shown—as opposed to merely asserting—that their legal position in the underlying action was comparable or even stronger than that of other defendants who prevailed at summary judgment. And although defendants maintain that their position was so strong that the judge in the underlying action dismissed the claims against them sua sponte at trial, they have not supported that claim with documentary evidence.

This court concludes that in these circumstances, defendants have not established the absence of any factual dispute and that they are entitled to judgment as a matter of law on their malpractice counterclaim.

Accordingly, it is

ORDERED that plaintiff’s motion for summary judgment under CPLR 3212 is denied; and it is further

ORDERED that defendants’ cross-motion for summary judgment under CPLR 3212 on their malpractice counterclaim is denied.

Trundle v Garr Silpe, P.C. 2020 NY Slip Op 34233(U) December 18, 2020
Supreme Court, New York County Docket Number: 159437/2019
Judge: Lucy Billings is an example of big-number financial transactions and the potential culpability for large losses.  Plaintiff alleged that defendant attorneys negligently handled his wife’s trusteeship of a pension plan, with large losses.

“Plaintiff’s identified primary goal was removing his wife as the trustee and administrator of his corporation’s pension plan. Plaintiff alleges that defendant’s lack of efforts to pursue this requested objective required him to pay a separate law firm additional attorney fees, totaling $150,000.”

“Accepting plaintiff’s allegations as true and drawing all reasonable inferences in his favor, as required upon defendant’s motioh pursuant to C.P.L.R. §3211(a) (7), plaintiff shows how defendant’s negligence adversely affected him in the divorce action and caused him actual financial damages.

Not all plaintiff’s claimed damages, however, are attributable to defendant’s negligence. First, the $150,000.00 paid to a separate law firm is not attributable to defendant’s negligence because plaintiff would have paid an attorney to close the pension fund regardless whether the attorney was defendant or a new attorney, Brookwood Cos .. Inc. v. Alston & Bird LLP, 146 A.D.3d at 666-67; Cohen v. Hack; 118 A.D.3d 460, 460 (1st Dep’t 2014); Cohen v. Kachroo, 115 A.D.3d at 513, unless plaintiff shows that, due to defendant’s conduct, he paid more fees to his new attorney than he would have paid to defendant. Exeter Law Group LLP v. Immortalana Inc., 158 A.D.3d 576, 577 (1st Dep’t 2018); Macquarie Capital (USA) Inc. v. Morrison & Foerster LLP, 157 A.D.3d 456, 457 (1st Dep’t 2018); Garnett v. Fox. Horan. & Camerini. LLP, 82 A.D.3d 435, 436 (1st Dep’t 2011). Second, as plaintiff alleges that his wife began misappropriating funds in 2003, and he retained defendant for the divbrce action in 2014, any of her misappropriations totalling the $400,000 and $500,000 alleged amounts before 2014 are not attributable to defendant. Knox v. Aronson, Mayefsky & Sloan, LLP, 168 A.D.3d at 75; Brenner v. Reiss Eisenpress, LLP, 155 A.D.3d at 438. ”

“Finally, plaintiff’s allegations that defendant unilaterally and unnecessarily conceded $205,000 when negotiating the closure
of the pension plan state a claim for legal malpractice., Roth v.
Ostrer, 161 A. D-. 3d 433 I 434 (1st Dep’ t 2018) . In support of this
claim, plaintiff alleges that the pension plan’s closure did not
require his wife’s agreement, so that defendant’s concession of
the $205,000 value of an insurance policy in exchange for her
agreement regarding the closure was an unnecessary compromise, a
claim to which defendant does not even respond. “

As we have said before, New York real estate is strongly associated with New York legal malpractice claims.  Ramos v Goldberg, Schudieri & Lindenberg, P.C.  2020 NY Slip Op 07147 Decided on December 01, 2020
Appellate Division, First Department is another example. Here, the question was whether Plaintiff owned a coop or not.

“In the underlying matter, a not-for-profit housing cooperative brought a holdover proceeding against plaintiff that sought past use and occupancy as well as challenged his rights to the unit he occupied. Plaintiff commenced a separate action in Supreme Court seeking a declaration that he was the owner of the cooperative unit in question. The housing cooperative [*2]counterclaimed in the Supreme Court action for a declaration that plaintiff’s claim of right to ownership in the apartment was invalid. The holdover proceeding was stayed pending a determination of the Supreme Court action pursuant to the parties’ stipulation. Defendants attorneys represented plaintiff in the Supreme Court action, which ultimately was resolved adversely to plaintiff, as the court granted the relief sought by the housing cooperative in its counterclaim.”

“Plaintiff’s factual allegations fail to establish that but for defendants’ alleged negligence in not calling the cooperative’s attorney to testify in the Supreme Court action, the attorney’s testimony would have established that the unit was validly transferred to him at a July 1995 closing (see generally Ambase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]). Plaintiff’s complaint offers no factual allegations as how or why the testimony from the attorney could have established the validity of a transfer of the unit to plaintiff. Moreover, it is speculative to state that the cooperative attorney’s testimony could have established the validity of the transfer when the real participants that had the authority to effect the transfer (i.e., the cooperative’s board members) either denied having participated in such a transfer and/or that the signatures alleged to be by theirs on the transferring documents were in fact their signatures. Accordingly, testimony from the cooperative’s attorney would not have altered the outcome of the Supreme Court action.

Furthermore, there are no factual allegations in the complaint to demonstrate that plaintiff would have been successful in the holdover proceeding, and would not have sustained any damages in such proceeding, but for defendants alleged negligence in having plaintiff stipulate to making the holdover proceeding dependent upon the outcome of the Supreme Court action. The issues in the two proceedings were interrelated. As recognized by the motion court, the question of whether plaintiff was subject to eviction in the holdover proceeding necessarily depended upon whether plaintiff was found to be a shareholder of the cooperative corporation, the very issue being litigated in the Supreme Court.”

It is sadly ironic when a legal malpractice case is dismissed (from plaintiff’s point of view) and even more so when it is dismissed for “willful and contumacious”discovery conduct (from everyone’s point of view).

Allstar Elecs., Inc. v DeLuca  2020 NY Slip Op 07018 [188 AD3d 1121]
November 25, 2020 Appellate Division, Second Department is an example.

“”The nature and degree of the penalty to be imposed pursuant to CPLR 3126 against a party who refuses to comply with court-ordered discovery is a matter within the discretion of the court” (Smookler v Dicerbo, 166 AD3d 838, 839 [2018]; see Pastore v Utilimaster Corp., 165 AD3d 685, 686 [2018]; Quinones v Long Is. Jewish Med. Ctr., 90 AD3d 632 [2011]). The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands or court-ordered discovery was the result of willful and contumacious conduct (see Ozeri v Ozeri, 135 AD3d 838, 839 [2016]; McArthur v New York City Hous. Auth., 48 AD3d 431 [2008]). “The willful and contumacious character of a party’s conduct can be inferred from the party’s repeated failure to respond to demands or to comply with discovery orders, and the absence of any reasonable excuse for these failures” (Tos v Jackson Hgts. Care Ctr., LLC, 91 AD3d 943, 943-944 [2012]; see Smookler v Dicerbo, 166 AD3d at 839; Commisso v Orshan, 85 AD3d 845 [2011]).

Here, contrary to the plaintiff’s contention, the willful and contumacious character of its conduct could properly be inferred from its repeated failures, without an adequate excuse, to timely respond to discovery demands and to comply with the Supreme Court’s orders to provide outstanding discovery and set a date for the plaintiff’s deposition (see Marino v Armogan, 179 AD3d 664, 666 [2020]; Broccoli v Kohl’s Dept. Stores, Inc., 171 AD3d 846, 847-848 [2019]; Smookler v Dicerbo, 166 AD3d at 839-840; Montemurro v Memorial Sloan-Kettering Cancer Ctr., 94 AD3d 1066, 1066-1067 [2012]).”

A line of legal malpractice cases in New York, arising primarilly out of matrimonial underlying matters have found that if the client positively answers an allocution question of whether the client is satisfied with the attorneys’work, then a later legal malpractice case is forfeit.  Here in Stennett v Goldberg & Cohn, LLP   2020 NY Slip Op 33901(U) November 23, 2020 Supreme Court, Kings County Docket Number: 511918/2018 Judge: Pamela L. Fisher highlihghts the history of this doctrine.

“The court declines to dismiss plaintiffs cause of action for legal malpractice pursuant to CPLR § 321 l(a)(l), on the basis of plaintiffs llocution under oath, because New York State courts have not taken a consistent position on whether an allocution that a client was satisfied with the services of his/her attorney precludes a client from bringing a claim for legal malpractice (See Boone v. Bender, 74 A.D.3d 1111, 1113 [2d. Dept. 2010] (granting defendants’ motion for summary judgment on the grounds that the “open-court stipulation of settlement established
that the plaintiff was satisfied with the defendants’ representation of her”); Harvey v. Greenberg, 2009 NY Slip Op. 32625(U) [Sup Ct, NY County 2009] (granting motion to dismiss); ajf’d 82 A.D.3d 683, 683 [1st Dept. 2011]; Katebi v. Fink, 51A.D.3d424, 425 [l st Dept. 2008] (granting motion to dismiss); But see Cruciata v. Mainiero, 31 A.D.3d 306, 306 [1st Dept. 2006] (reversing dismissal under CPLR § 321 l(a)(l) “[d]espite the detailed on-the-record settlement of plaintiffs matrimonial action,” on the
grounds that “the former husband’s pension and other assets were overlooked in arriving at the stipulation”); Gad v. Sherman, 160 A.D.3d 622, 623 [2d. Dept. 2018] (affirming trial’s court’s order denying dismissal of complaint pursuant to CPLR § 321 l(a)(l) on the grounds that “the documentary evidence submitted by the defendant, consisting of the transcript of the April 2014 court appearance, failed to utterly refute the plaintiff’s allegations of malpractice”)). “

Martin Assoc., Inc. v Illinois Natl. Ins. Co. 2020 NY Slip Op 06860 [188 AD3d 572] November 19, 2020 Appellate Division, First Department is an excellent example of how the “but for” principle is applied.  In this case, the claim was that defendant attorneys failed to notify the excess carrier, and thus, coverage was lost.

“The court also properly dismissed the legal malpractice claim against Rubin. The duty to provide timely notice to the excess insurance carrier had long since expired when Rubin was retained in December of 2009. Thus, plaintiff cannot establish the element of proximate causation necessary to proving its legal malpractice claim, because it cannot show that if Rubin had provided notice to the excess carrier when it was retained, the carrier would not have denied coverage (see Reibman v Senie, 302 AD2d 290 [1st Dept 2003]). Nor did Rubin have the obligation to advise plaintiff of all potential malpractice claims against predecessor counsel when it was beyond the scope of its retention (see Keld v Giddins Claman, LLP, 170 AD3d 589 [1st Dept 2019]).”

Schlam Stone & Dolan LLP v Toussie  2020 NY Slip Op 06874 Decided on November 19, 2020 Appellate Division, First Department is an example of how the account stated doctrine works for attorneys.

“Plaintiff was entitled to summary judgment on its account stated claim, as it submitted documentary evidence showing that defendant Robert I. Toussie had “received and retained the invoice[s] without objection” (Perine Intl. Inc. v Bedford Clothiers, Inc., 143 AD3d 491, 493 [1st Dept 2016] [internal quotation marks omitted]). Toussie’s own written statements refute his argument that plaintiff was unauthorized to represent him, and/or that he had objected to plaintiff’s work, when he terminated plaintiff in early October 2018. The termination, which occurred prior to Toussie’s receipt of the relevant invoices, was rescinded by Toussie shortly thereafter. Despite regular correspondence between plaintiff and Toussie during the following months, there is no indication that he objected to plaintiff’s invoices or continued representation. Moreover, defendants’ legal malpractice counterclaims were not sufficiently intertwined with the account stated claim so as to preclude summary judgment (see Emery Celli Brinckerhoff & Abady, LLP v Rose, 111 AD3d 453, 454 [1st Dept 2013], lv denied 23 NY3d 904 [2014]).”

Flintlock Constr. Servs., LLC v Rubin, Fiorella & Friedman, LLP  2020 NY Slip Op 06711 Decided on November 17, 2020 Appellate Division, First  Department seems to be a case that could have been won, it it had been brought in 2016 rather than in 2018.

“Plaintiff, a general contractor, entered into a construction agreement with nonparty Well-Come Holdings, Inc. to perform construction and excavation work on property owned by Well-Come. In 2004 an adjacent property owner commenced an action against Well-Come and plaintiff alleging that the excavation work had damaged its property. In 2006 Well-Come commenced a declaratory judgment action against plaintiff and its insurerDefendant, as counsel for plaintiff, allegedly without plaintiff’s knowledge and consent, stipulated with Well-Come’s counsel that plaintiff and its insurer would jointly defend and indemnify Well-Come for all damages in connection with the project, including those that plaintiff claimed were caused by Well-Come’s own negligence. In 2007 defendant entered into a second stipulation, allegedly without plaintiff’s knowledge and consent, discontinuing the declaratory judgment action brought by Well-Come as against plaintiff and agreeing that plaintiff alone would defend and indemnify Well-Come (the 2007 stipulation). On July 29, 2013, a jury rendered a verdict as to damages against Well-Come and plaintiff, and on September 5, 2018, after five years of posttrial proceedings, a money judgment was entered against them jointly.

Plaintiff commenced this action on September 17, 2018, alleging that defendant committed legal malpractice by entering into the stipulations. Plaintiff alleges that entering into the 2007 stipulation, which shifted the responsibility for Well-Come’s defense from plaintiff’s insurer to plaintiff alone, was professional negligence. In December 2018 defendant moved to dismiss the complaint pursuant to CPLR 3211(a)(5). The motion court ruled that the complaint was time-barred because the statute of limitations had begun to run on July 29, 2013, the date on which the jury rendered its verdictwhich was the date on which plaintiff’s damages were reasonably calculable. We affirm.”

“”An action to recover damages for an attorney’s malpractice must be commenced within three years from accrual (see CPLR § 214[6]). A legal malpractice claim accrues when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court. In most cases, this accrual time is measured from the day an actionable injury occurs [or when the damages are sufficiently calculable], even if the aggrieved party is then ignorant of the wrong or injury.” (McCoy v v. Feinman99 NY2d 295, 301 [2002] [internal quotation marks and citation omitted]; King Tower Realty Corp. v G & G Funding Corp., 163 AD3d 541 [2d Dept. 2018]).”

Jewell Law, PLLC v Ruci  2020 NY Slip Op 33648(U) November 3, 2020
Supreme Court, New York County Docket Number: 655702/2019
Judge: Arthur F. Engoron displays some unique inductive reasoning, and some conventional legal reasoning.  Breach of Fiducary duty is dismissed in an unconventional matter.  Legal malpractice is more conventionally decided.

“This Court finds that the breach of fiduciary duty claim is duplicative of the legal malpractice claim as they seek identical relief, namely, damages in an amount to be determined at trial, plus interest and costs. Alphas v Smith, 147 AD3d 557, 559 (!81 Dept 2017) (breach of fiduciary duty claim was duplicative of malpractice claim as it sought similar damages). Furthermore, the actions of which Ruci complained are not within what this Court considers to be typical breach of fiduciary duty claims. Ruci’s position proves too much; it would mean that every malpractice claim would also allow a breach of fiduciary duty claim, which is not the law. ”

“Jewell claims that Ruci has failed adequately to plead legal malpractice, specifically, that Ruci has failed to allege “but for” causation, because any allegation that the court in the Underlying Action would have granted unsupervised visitation while a criminal court order of protection was in effect is impermissible speculation. That is incorrect. Here, Ruci alleges that Jewell: failed to file an emergency Order to Show Cause to commence the Underlying Action, which Ruci alleges would have expedited the Underlying Action and lessened the time missed between Ruci and his child; failed to file a Writ of Habeas Corpus, as directed by Ruci; improperly interfered with Ruci’s criminal case by pressuring Ruci to do certain things despite the fact that Jewell was not
retained to represent him in that proceeding; failed to effectuate proper and timely service in the Underlying Action prior to the initial court date, which increased the time missed between Ruci and his child; failed to secure unsupervised parenting time for Ruci at two court dates, which increased the time missed between Ruci and his child; filed frivolous Orders to Show Cause; improperly advised Ruci that it might be possible for him to take his child out of the country; and
asserted to the referee in the Underlying Action that Jewell was using electronic filing when no such electronic filing system was available in Queens County Family Court at that time. Clearly, Ruci has pleaded that but for Jewell’s actions and/or inactions in the Underlying Action, Ruci
would have been reunited with his child earlier than he was. Also, Ruci has adequately pleaded that he was denied visitation time, be it supervised or unsupervised. “

Hudson Yards LLC v Segal  2020 NY Slip Op 06353 Decided on November 05, 2020 Appellate Division, First Department is another case in which the brutal “but for” causation rule in legal malpractice ends a case.

“To recover damages for legal malpractice, the plaintiff must establish that the attorney (1) “failed to exercise that degree of care, skill and diligence commonly possessed and exercised by a member of the legal community” and (2) that “such negligence was a proximate cause of the loss in question” (Barbara King Family Trust v Voluto Ventures LLC, 46 AD3d 423, 424 [1st Dept 2007]). The IAS court properly held that defendants met their prima facie burden of entitlement to summary judgment on the issues of negligence and proximate causation, and that plaintiff, in opposition, failed to raise a triable issue of fact.

The evidence submitted with the motions establishes that plaintiff and nonparty Fortress Credit Corp. (Fortress) did not privately come to a final settlement agreement, whether oral or otherwise, prior to the foreclosure sale. At most, plaintiff and Fortress agreed to some proposed settlement terms outside of defendant counsel’s presence. As there was no admissible evidence showing that plaintiff had entered into a settlement agreement with Fortress prior to the sale, plaintiff’s claim that defendants failed to advise him that the alleged settlement agreement was unenforceable fails.

In any event, the IAS court properly found that defendants’ advice to plaintiff regarding the sale was reasonable, even if they did not specifically advise him that the proposed agreement was unenforceable (see Brookwood Cos., Inc. v Alston & Bird LLP, 146 AD3d 662, 667 [1st Dept 2017]). As the IAS court found, defendants’ decision to preserve the ability to reach a favorable settlement, while at the same time continuing to pursue its strategy of fighting a deficiency judgment on valuation in the event that settlement could not be reached, was an inherently reasonable one. Plaintiff’s hindsight criticism of this strategy does not support his malpractice claim (see Brenner v Reiss Eisenpress, LLP, 155 AD3d 437, 438 [1st Dept 2017]).

Finally, plaintiff has failed to raise an issue of fact surrounding proximate cause. As the IAS court found, the allegations underlying plaintiff’s malpractice claim were couched in terms of “gross speculations” about future events, without the requisite factual basis to support the allegation (see Phillips-Smith Specialty Retail Group II v Parker Chapin Flattau & Klimpl, 265 AD2d 208, 210 [1st Dept 1999], lv denied 94 NY2d 759 [2000]).”