Previously, we looked at the Judiciary Law § 487 claims.  Legal Malpractice Claims were also brought in Joseph v Fensterman  2022 NY Slip Op 02398 [204 AD3d 766] April 13, 2022
Appellate Division, Second Department.

“Contrary to the plaintiffs’ contention, the Supreme Court properly granted that branch of the defendants’ motion which was to dismiss the third cause of action, to recover damages for legal malpractice against the law firm, Howard Fensterman, Robert Fensterman, Kathleen Eisman, as executor of the estate of Steven J. Eisman, and Patrick Formato (hereinafter collectively the Operating Company attorneys) based upon their representation of Martin Farbenblum and Bacchi in the Bay Park Operating Company acquisition. “ ’To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages’ ” (Lopez v Lozner & Mastropietro, P.C., 166 AD3d 871, 873 [2018], quoting Dempster v Liotti, 86 AD3d 169, 176 [2011]).

“ ’An action to recover damages arising from legal malpractice must be commenced within three years, computed from the time the cause of action accrued to the time the claim is interposed’ ” (Schrull v Weis, 166 AD3d 829, 831 [2018], quoting 3rd & 6th, LLC v Berg, 149 AD3d 794, 795 [2017]; see CPLR 214 [6]). “In moving to dismiss a cause of action pursuant to CPLR 3211 (a) (5) as barred by the applicable statute of limitations, the moving defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable” (Schrull v Weis, 166 AD3d at 831 [internal quotation marks omitted]; see Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d 788, 789 [2017]).

Pursuant to the doctrine of continuous representation, “ ’the time within which to sue on the [cause of action] is tolled until the attorney’s continuing representation of the client with regard to the particular matter terminates’ ” (Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d at 789, quoting Aqua-Trol Corp. v Wilentz, Goldman & Spitzer, P.A., 144 AD3d 956, 957 [2016]). “For the continuous representation doctrine to apply, ‘there must be clear indicia of an ongoing, continuous, developing, and dependant relationship between the client and the attorney’ ” (Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d at 789, quoting Luk Lamellen U. Kupplungbau GmbH v Lerner, 166 AD2d 505, 506 [1990]; see Schrull v Weis, 166 AD3d at 831).

Here, the defendants demonstrated, prima facie, that the third cause of action was untimely. In opposition, the plaintiffs failed to raise a question of fact as to whether the continuous representation doctrine or any other legal basis applied to toll the statute of limitations (see Potenza v Giaimo, 165 AD3d 1186, 1187-1188 [2018]). Although the amended complaint alleged that the Operating Company attorneys told the plaintiffs they would return Martin Farbenblum and Bacchi’s full 10% interests to them through 2013, there is no allegation that the Operating Company attorneys provided legal representation to the plaintiffs after 2009. “Application of the continuous representation . . . doctrine is . . . generally limited to the course of representation concerning a specific legal matter,” not merely a continuing relation between the attorney and client (Shumsky v Eisenstein, 96 NY2d 164, 168 [2001]).

The Supreme Court should have denied that branch of the defendants’ motion which sought dismissal of the fourth cause of action, to recover damages for legal malpractice against the law firm, Howard Fensterman, and Lichtenstein based upon their representation of the plaintiffs in the New Franklin litigation. As an initial matter, the record raises “a question of fact as to whether the applicable statute of limitations was tolled by the continuous representation doctrine” (Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d at 790). Moreover, “accepting the facts alleged in the complaint as true, and according the plaintiff[s] the benefit of every possible favorable inference, the plaintiff[s] stated a cause of action to recover damages for legal malpractice” (Lopez v Lozner & Mastropietro, P.C., 166 AD3d at 873).

[*4] The Supreme Court properly granted that branch of the defendants’ motion which was to dismiss the fifth cause of action, to recover damages for legal malpractice against the law firm, Howard Fensterman, Formato, and Mark Frimmel based upon their representation of the plaintiffs during the acquisition of the property on which the Bayview Nursing and Rehabilitation Center is located. Accepting the allegations in the amended complaint as true, the fifth cause of action failed to set forth facts sufficient to allege that those defendants’ purported negligence proximately caused the plaintiffs to sustain actual and ascertainable damages (see Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d 812, 813 [2013]; Siwiec v Rawlins, 103 AD3d 703, 704 [2013]).”

In an unusually detailed decision, the Appellate Division, Second Department reversed Supreme Court’s dismissal in Joseph v Fensterman  2022 NY Slip Op 02398 [204 AD3d 766] April 13, 2022.
“The Supreme Court should have denied that branch of the defendants’ motion which was to dismiss the first cause of action in the amended complaint, which sought to recover damages for violations of Judiciary Law § 487 related to the defendants’ representation of the plaintiffs in a litigation concerning the sale of the plaintiffs’ interests in three skilled nursing facilities known as New Franklin, Fort Tyron, and Split Rock (hereinafter the New Franklin litigation). An attorney is liable under Judiciary Law § 487 (1) if he or she “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party,” and under Judiciary Law § 487 (2) if he or she “[w]illfully delays his [or her] client’s suit with a view to his [or her] own gain” (see Melcher v Greenberg Traurig, LLP, 23 NY3d 10, 12 [2014]; Gorbatov v Tsirelman, 155 AD3d at 838). “ ’Allegations regarding an act of deceit . . . must be stated with particularity’ ” (Gorbatov v Tsirelman, 155 AD3d at 838, quoting Facebook, Inc. v DLA Piper LLP [US], 134 AD3d 610, 615 [2015]).

Here, the first cause of action adequately pleaded a claim to recover damages for violations of Judiciary Law § 487 (see Bianco v Law Offs. of Yuri Prakhin, 189 AD3d at 1329), as it alleged that the defendants Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP (hereinafter the law firm), Howard Fensterman, and Sarah C. Lichtenstein intentionally interfered with the settlement of the New Franklin litigation, causing years of additional litigation, in order to generate legal fees in the amount of $1.7 million, which amount the plaintiffs alleged was paid from the proceeds of the sale of the skilled nursing facilities. The plaintiffs alleged that they were entitled to a portion of those proceeds. The amended complaint also alleged that Howard Fensterman made false statements to the plaintiffs, and filed a motion without the plaintiffs’ knowledge or consent. The Supreme Court’s determination that Howard Fensterman’s conduct during the settlement of the New Franklin litigation “was simply a product of his conflict of interest in representing both buyers and sellers in the New Franklin and Fort Tyron transactions” is a premature factual finding inappropriate at this stage of the litigation (see Warney v State of New York, 16 NY3d 428, 436-437 [2011]; Matter of Gerard P. v Paula P., 186 AD3d 934, 938 [2020]).”

Kutzin v Katz  2022 NY Slip Op 04595 Decided on July 14, 2022 Appellate Division, Third Department is an example of the minute detailed examination which is made to the record in a legal malpractice case.  Plaintiff loses.

“In May 2016, plaintiff retained defendant to represent him in drafting a marital settlement agreement. Among other assertions, plaintiff claims that he instructed defendant to include a provision in the agreement allowing him to automatically recalculate his support obligations in the event that he became unemployed. Plaintiff and his wife executed the settlement agreement on June 17, 2016. Plaintiff subsequently lost his employment in May 2017 and sought directly from his wife a reduction in his support obligations, which she refused. Thereafter, plaintiff commenced a divorce action and moved to decrease his support obligations. Plaintiff’s wife, among other things, opposed plaintiff’s motion and cross-moved to set aside the settlement agreement for, among other reasons, fraud and duress resulting from defendant acting as plaintiff’s attorney despite the agreement naming him as mediator. Plaintiff’s wife also sought to set aside the agreement for its failure to include provisions concerning the support guidelines. Supreme Court (Cahill, J.), among other things, denied both motions, and plaintiff and his wife were divorced in December 2018.

In 2019, plaintiff commenced this legal malpractice action alleging that defendant included a provision in the agreement that he was acting as a mediator when he was not, that he failed to include a provision for the automatic recalculation of plaintiff’s support obligations as directed by plaintiff and failed to include disclosures and presumptive support calculations as required by the Domestic Relations Law. Following joinder of issue and discovery, plaintiff moved to strike defendant’s answer as a sanction for defendant’s spoliation of his handwritten notes taken at their May 2016 meeting, which allegedly would have proven that plaintiff requested an automatic downward modification of his support obligations. Defendant opposed the motion to strike and cross-moved for summary judgment dismissing the complaint, asserting that plaintiff could not prevail on his legal malpractice cause of action. In two separate orders, Supreme Court (Schick, J.) found that defendant engaged in spoliation of evidence but denied plaintiff’s motion to strike defendant’s answer in favor of allowing plaintiff an adverse inference at trial. Supreme Court, in an amended order, also granted defendant’s motion for summary judgment dismissing the complaint. Plaintiff appeals from the order addressing his motion to strike and the amended order granting summary judgment.”

“Plaintiff’s principal claim on appeal is that issues of fact exist as to whether he made a request of defendant to include a provision in the agreement for automatic recalculation of his support obligations, and Supreme Court was therefore precluded from granting defendant’s motion for summary judgment. “To succeed upon the legal malpractice claim, plaintiff was required to demonstrate that 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 plaintiff, and that . . . plaintiff would have succeeded on the merits of the underlying action but for the attorney’s negligence. Upon [his] application for summary judgment, defendant[] [was] required to present evidence in admissible form establishing that plaintiff is unable to prove at least one of these elements” (Hufstader v Friedman & Molinsek, P.C., 150 AD3d 1489, 1489-1490 [2017] [internal quotation marks and citations omitted]; see Mid-Hudson Val. Fed. Credit Union v Quartararo & Lois, PLLC, 155 AD3d 1218, 1219-1220 [2017], affd 31 NY3d 1090 [2018]; Huffner v Ziff, Weiermiller, Hayden & Mustico, LLP, 55 AD3d 1009, 1011 [2008]).

In support of his motion for summary judgment, defendant submitted the parties’ deposition testimony and copies of plaintiff’s emails. It is undisputed that plaintiff retained defendant as his attorney, that defendant did not act as a mediator, that defendant included a provision in the settlement agreement permitting plaintiff to seek a downward modification — but not an automatic decrease — of his support obligations upon his loss of employment, that the agreement did not contain requisite support guideline language and included blanks in the marital residence provision, that defendant forwarded the agreement to plaintiff and his wife but advised plaintiff that he had not proofread it, and that plaintiff and his wife signed the agreement before a notary public without seeking any changes and did not sign the agreement in the presence of defendant. Additionally, plaintiff’s deposition testimony demonstrated that plaintiff read the agreement and understood it. Emails between defendant and plaintiff also revealed that plaintiff understood that modifying his support obligations would require judicial involvement. Other evidence showed that, at the time plaintiff sought his downward modification of support obligations, plaintiff’s bank account totaled over $29,000, plaintiff’s wife’s bank account totaled approximately $59, plaintiff retained all of his retirement accounts in excess of $328,000 and plaintiff’s wife was also unemployed at the time.

Pursuant to Domestic Relations Law § 236 (B) (9) (b) (2) (i), as relevant here, a “court may modify [*4]an order of child support, including an order incorporating without merging an agreement or stipulation of the parties, upon a showing of a substantial change in circumstances.” “The parties are free, however, to agree to different terms triggering a change in the obligations of the payor spouse,” including the application of a different standard (Matter of Frederick-Kane v Potter, 155 AD3d 1327, 1329 [2017] [internal quotation marks and citations omitted]). However, “automatic” decreases and increases in child support and maintenance are improper (see Murray v Murray, 101 AD3d 1320, 1322-1323 [2012], lv dismissed 20 NY3d 1085 [2013]; O’Brien v O’Brien, 88 AD3d 775, 778 [2011]; White v White, 204 AD2d 825, 828 [1994], lv dismissed 84 NY2d 977 [1994]; Rubenstein v Rubenstein, 155 AD2d 522, 523 [1989]). Thus, defendant’s failure to include a provision in the agreement for “automatic” recalculation of plaintiff’s support obligations was of no import, as plaintiff was not entitled to same.”

Ward v Klein  2022 NY Slip Op 02153 [203 AD3d 1216] March 30, 2022 Appellate Division, Second Department represents the “no harm-no foul” analysis frequently applied to legal malpractice claims.  Attorneys are allowed to withdraw from representation and often do.  This fact pattern consistently appears in medical malpractice cases at about the time that the attorney must produce an expert.  When difficulty arises, attorneys often drop out.  Courts rarely allow a legal malpractice claim, in part, based on the successor counsel doctrine which says, in essence, that if successor counsel can solve the problem, then there is no case against the first attorney.  Here is a variant:

“The plaintiff, who held a master plumber license from the New York City Department of Buildings (hereinafter the DOB), retained the defendants to represent her with respect to disciplinary charges brought against her by the DOB. The DOB ultimately determined to revoke the plaintiff’s license, and she allegedly further retained the defendants to challenge that determination in a CPLR article 78 proceeding. According to the plaintiff, the defendants timely commenced that proceeding by filing a petition, and the proceeding was transferred to the Appellate Division, First Department. The plaintiff alleged that the defendants then discontinued their representation of her, just before an impending filing deadline. The plaintiff retained another attorney, who obtained an enlargement of time. The plaintiff alleged that she was ultimately successful in her CPLR article 78 proceeding before the First Department.

The plaintiff, pro se, commenced this action against the defendants, inter alia, alleging causes of action sounding in breach of contract, legal malpractice, breach of fiduciary duty, and fraud, all arising out of the defendants’ representation of her during the CPLR article 78 proceeding. The defendants moved pursuant to CPLR 3211 (a) to dismiss the complaint. In an order entered March 6, 2019, the Supreme Court granted the motion, and the plaintiff appeals.”

“Here, the plaintiff failed to state causes of action sounding in breach of contract, legal malpractice, breach of fiduciary duty, and fraud, as she failed to adequately allege the element of [*2]damages with respect to each of those causes of action (see Denisco v Uysal, 195 AD3d 989 [2021]; McSpedon v Levine, 158 AD3d 618, 621 [2018]; Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 848 [2012]; Smith v Chase Manhattan Bank, USA, 293 AD2d 598, 600 [2002]; see generally Greenberg v Joffee, 34 AD3d 426, 427 [2006]).”

Continuous representation tolls the running of the statute of limitations, which commences when the attorney mistake is made.  Continuous representation exists because it is inequitable to require a client to sue its attorney while the case is still ongoing.  That said, there are many requirements as can be seen in Walsh v Wallace Law Off.  2022 NY Slip Op 02218 [203 AD3d 684] March 31, 2022 Appellate Division, First Department.

“Defendants established prima facie that this legal malpractice action was time-barred, as it was commenced on May 26, 2020, more than three years from the date it accrued. The three-year statute of limitations began to run on March 16, 2017, when a consent to change attorney form was executed by plaintiff, defendant Wallace Law Office, and defendant Leav & Steinberg, LLP (L&S), the incoming counsel (CPLR 214 [6]; Frost Line Refrig., Inc. v Gastwirth, Mirsky & Stein, LLP, 25 AD3d 532, 532-533 [2d Dept 2006]). The form was also notarized by a name partner of L&S. This unambiguous written document constitutes documentary evidence that the attorney-client relationship between plaintiff and the Wallace defendants ended more than three years before plaintiff commenced this action (see Seaman v Schulte Roth & Zabel LLP, 176 AD3d 538, 539 [1st Dept 2019]).

We reject plaintiff’s argument that Supreme Court erred in failing to consider the doctrine of continuous representation. The complaint alleged no “clear indicia of an ongoing, continuous, developing[,] and dependent relationship between the client and the attorney” or a “mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” (Matter of Merker, 18 AD3d 332, 332-333 [1st Dept 2005] [internal quotation marks omitted]). Equally unavailing is plaintiff’s speculative contention that discovery is required as to the nature, if any, of the Wallace defendants’ continuing involvement in plaintiff’s underlying personal injury lawsuit.”

Cassaforte Ltd. v Pourtavoosi  2022 NY Slip Op 32063(U)  June 30, 2022 Supreme Court, New York County  Docket Number: Index No. 451426/2020 Judge: Margaret A. Chan is a complicated real estate breach of fiduciary duty and breach of contract case which cannot adequately be recited in a blog article.  However, this is a short version:

“This action arises out of a series of loan agreements and real estate dealings that plaintiffs allege non-party Aaron Johnson and his affiliated entities breached. A related action centers on the dispute of Cassaforte and FRF with Johnson directly (the Johnson Action, index number 653387/2019). Plaintiffs allege that they were damaged as a result of the refinancing of senior debt by the Fee Owners (the Refinancing), which were controlled by Johnson at the time of the Refinancing.

Prior to the Refinancing, Cassaforte and Johnson, in 2017, structured an arrangement whereby Cassaforte made loans to support the acquisition and development of Brooklyn real property (the Projects). The Projects were to be directly held by the Fee Owners. The corporate structure chart that resulted from this arrangement involved XYZ Holdings LLC (XYZ Holdings) owning all of the membership interests in the Fee Owners. XYZ Partners LLC (XYZ Partners) held 90% of the membership interests in xyz Holdings. Another special purpose entity, XYZ Group LLC (XYZ Group) held the remaining 10% of the membership interests in XYZ Holdings and also served as its operating manager. Johnson wholly owns
XYZ Group. Johnson was the common unit holder ofXYZ Partners, and he was also appointed to be its managing member. On April 20, 2018, FRF became the Preferred Mezzanine Unit Holder of XYZ Partners via a joinder agreement (NYSCEF # 215). XYZ Holdings managed the Fee Owners as their member. Although Cassaforte and Johnson had considered granting Cassaforte security interests directly in the real property, this was opposed by other potential lenders, so it was ultimately agreed that Cassaforte would instead receive LLC security
interests in the membership units of the Fee Owners, XYZ Partners, and XYZ Holdings.”

“Without obtaining the Cassaforte Authorization, Johnson proceeded with the Refinancing. Plaintiffs allege that, around the beginning of 2019, Johnson proposed refinancing the Old Mortgages but failed to share sufficient information about the proposal, or even required financial reports regarding the Projects, such that Cassaforte understood that Johnson was acting secretly to refinance the properties in his favor and to plaintiffs’ detriment. Cassaforte withheld the Cassaforte Authorization, but Johnson nonetheless proceeded. The Refinancing raised approximately $5.85 million by encumbering the Projects with replacement mortgages issued by Sharestates (the New Mortgages). Approximately $4.2 million
went to pay off the Old Mortgages. Plaintiffs allege that Johnson wrongfully diverted the balance, amounting to approximately $1.6 million (the Refinancing Net Proceeds). Sharestates later assigned the new 1535 Pacific mortgage and the 42 Van Buren mortgage to Toorak (the Toorak Mortgages). ”

“Counts One through Eight of the Complaint assert various claims against the Attorney Defendants for Pourtavoosi’s role in assisting Johnson complete the Refinancing. Plaintiffs assert claims for breach of fiduciary duty, professional negligence, violation of the Rule of Professional Conduct 1.13, aiding and abetting breach of fiduciary duty, negligence, tortious interference with contract, contribution, and indemnification. Plaintiffs assert that the Attorney Defendants were the attorneys for XYZ Partners, XYZ Holdings, and the Fee Owners, and, therefore, owed fiduciary duties to these entities, which they breached including by _assisting with the Refinancing even though Pourtavoosi understood the intricacies
of the operating agreements and loan documents and therefore the need to get the Cassaforte Authorization. ”

“The allegations in the Complaint are sufficient to state a claim for breach of fiduciary duty with respect to the claim of the Fee Owners but not with respect to the claim of Cassaforte and FRF.

“To establish a breach of fiduciary duty, the movant must prove the existence of a fiduciary relationship, misconduct by the other party, and damages directly caused by that party’s misconduct” (Poko1k v Poko1k, 115 AD3d 428, 429 [1st Dept 2014]). “[T]he relationship of client and counsel is one of unique fiduciary reliance” and an attorney has the “duty to deal fairly, honestly and with undivided loyalty” ( Ulico Gas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 9 [1st Dept 2008]). “[I]n the context of an action asserting attorney liability, the claims of malpractice and breach of fiduciary duty are governed by the same standard of recovery … [and] plaintiff must establish the ‘but for’ element of malpractice,”
which requires that “‘but for’ the attorney’s conduct the client … would not have sustained any ascertainable damages” (id. at 10; Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hi11s, Inc., 10 AD3d 267, 272 [1st Dept 2004]).

All the plaintiffs allege a breach of fiduciary duty against the Attorney Defendants (NYSCEF # 153, 1’s 97-104). Respecting the claim of Cassaforte and FRF, plaintiffs do not explain the basis for the Attorney Defendants owing Cassaforte and FRF a fiduciary duty, so this cause of action fails the first prong of a breach of fiduciary duty claim with respect to those two plaintiffs. Respecting XYZ Partners and XYZ Holdings, plaintiffs assert that the Attorney Defendants were counsel thereto (NYSCEF # 153, 1 98). Even if that were true, which the Attorney Defendants dispute, nonetheless this claim fails for the independent reason that those two are not parties to this action. “

Stevens v Wheeler  2022 NY Slip Op 31699(U) April 27, 2022 Supreme Court, New York County Docket Number: Index No. 151129/2021 Judge: David B. Cohen is a complex statutory legal malpractice case which turns on how a Rhode Island Estate law treats a spouse in her fight with a son over the deceased father’s estate.  We see the all too common situation where the child moves the father away and restricts the wife’s ability to visit him.  We see the Estate suing the attorneys.

“Preliminarily, defendants’ assertion that plaintiffs lack standing to bring this action because they are not in privity with defendants is without merit. “[P]rivity, or a relationship
approaching privity, exists between the personal representative of the estate planning attorney” (Estate of Schneider v Finmann, 15 NY3d 306, 309 [2010]). The estate stands in the shoes of the decedent and, therefore, has the capacity to maintain a malpractice claim on behalf of the estate (id.). The personal representative of the estate should not be prevented from raising a negligent estate planning claim against the attorney who caused harm to the estate (id.). As such, plaintiffs, executors of the decedent’s estate, may properly pursue claims against defendants for improper estate planning, resulting in damages to the estate (see id.). “Moreover, such a result comports with EPTL 11-3 .2(b ), … which generally permits the personal representative of a decedent to maintain an action for ‘injury to person or property’ after that person’s death” (id.).

Here, plaintiffs claim that defendants, by counseling that the Will should be probated in Rhode Island under Rhode Island law, rather than in New York under New York law, acted
contrary to James W. Stevens’ intended testamentary scheme of bequeathing his residuary estate equally among Mary K. Stevens, Hardie Stevens, and Mark W. Stevens, thus resulting in Mary K. Stevens exercising an alleged right of election under Rhode Island law and obtaining a larger portion of the residuary estate, and Hardie M. Stevens obtaining a lesser portion, than was contemplated by the Will and Codicils. Applying the established standard, this Court concludes that, to the extent that the Complaint alleges that James W. Stevens and the Estate sustained damages as a result of defendants’ actions, plaintiffs, as co-executors, may properly bring an action on behalf of the Estate (see id.). ”

“As discussed previously, the Will and Codicils do not contain any choice of law provisions, and James W. Stevens died in Rhode Island, where he owns a home. Plaintiffs
maintain that defendants’ advice that the Will should be probated in Rhode Island under Rhode Island law constituted a breach of their duty to represent James W. Stevens and the Estate since, under Rhode Island law, Mary K. Stevens is entitled to waive her bequests under the Will and elect to take a statutorily prescribed share in an amount generally equal to one-half of James W. Stevens’ personal property. Plaintiffs assert that the election resulted in Mary K. Stevens obtaining a portion of the residuary estate greater than the amount provided to her in the Will. However, a review of the plain language of the Rhode Island statutory scheme undermines plaintiffs’ position. Rhode Island General Law §33-28-l(a) provides that the surviving spouse of a decedent who dies domiciled in this state has a right of election to take an elective share equal to “(1) [t]he life estate and allowance in an intestate’s real estate titled in the name of the decedent individually at the time of the decedent’s death pursuant to §§33-1-5 and 33-1-6” and “(2) [t]he share of the decedent’s personal estate subject to probate pursuant to §33-1-10. The elective share may be taken in kind or the value thereof.” Sections 33-1-5 and 33-1-6 are inapplicable here since James W. Stevens did not die intestate. Similarly, §33-1-10 does not apply since it concerns “[s]urplus personalty not bequeathed,” not an expressly devised residuary estate. “If the language is clear on its face, then the plain meaning of the statute must be given effect” (Gilbane v Paulas, 576 A2d 1195, 1196 [R.I. 1990]). Thus, §33-28-1 does not provide Mary K. Stevens with a right of election to obtain a larger portion of the residuary estate than that contemplated by the Will.

Moreover, defendants establish by documentary evidence that they did not breach any duty of care owed to plaintiffs, and that the Estate was not damaged by the probate of the Will in Rhode Island. The Stipulated Order and ensuing Agreement entered into between Mary K. Stevens and Hardie M. Stevens, which resolved the Objection filed by Mary K. Stevens, set forth the portion of the residuary estate that she was to receive. The decision to resolve the Objection was the sole basis for the amendment to Mary K. Stevens’ share of the residuary estate. The plaintiffs do not allege that decision to resolve the Objection was compelled by Rhode Island law. Rather, Hardie M. Stevens acknowledges that he entered into the Agreement with Mary K. Stevens to amend and restate the residuary shares under the Will (see Stevens Affid., NYSCEF Doc. No. 28). It is undisputed that defendants did not represent Hardie M. Stevens in connection with the decision to enter into the Stipulated Order and Agreement. Thus, defendants are entitled to dismissal of the negligence claim.”

Marcum LLP v L’abbate, Balkan, Colavita & Contini, LLP   2022 NY Slip Op 31913(U)  June 17, 2022  Supreme Court, New York County Docket Number: Index No. 151586/2021  Judge: Joel M. Cohen is a decision on a motion to reargue.  The legal malpractice case was earlier dismissed as too speculative.  The Fee claims remain.

“Plaintiff brought a single claim for legal malpractice against Defendants alleging, among other things, failure to timely produce relevant documents in discovery, negligently producing privileged and protected materials, and withdrawing from the representation of Marcum in the underlying litigation just months before trial with a motion for sanctions pending (NYSCEF 1). In its claim for damages, Plaintiff sought recovery of additional attorneys’ fees incurred by having to hire new counsel due to the negligence of L’ Abbate (NYSCEF 1 ,52) and disgorgement of attorneys’ fees paid to L’ Abbate since the inception of L’ Abbate’s allegedly negligent conduct and breaches of its duty, including a $2.0 million self-insured retention paid by Marcum (NYSCEF 1 ,57-58). Defendant moved to dismiss the Complaint in its entirety, but did not address the sufficiency of Plaintiff’s claim for legal fees or disgorgement in its papers.”

“In seeking leave to reargue the Court’s denial of the motion to dismiss in its entirety, Defendant’s core argument is that Plaintiff has not sustained any actual damages because it has
not paid any fees that it was not otherwise required to pay under its primary policy. Defendant does not, however, establish that “the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle oflaw” (Pro Brokerage, Inc. v Home Ins. Co., 99 AD2d 971 [1st Dept 1984 ]).

Converting this motion into one to renew, which Defendant attempts in its reply brief, is unavailing. Defendant argues that “where the additional facts presented relate to an issue which had not previously been raised by the parties but, rather, has been raised sua sponte by the court in its memorandum … it [is] error for the court not to consider these additional facts” (Kosovsky v. Park S. Tenants Corp. 45 Misc3d 1216(A) [Sup Ct, NY County 2014]) But unlike Kosovsky v Park S. Tenants Corp., where the court denied plaintiffs motion for summary judgment based on procedural grounds not raised by the parties, here the burden was always on Defendant to show that dismissal of the complaint in its entirely was warranted, which Defendant failed to do. The Court simply noted at argument that Defendant failed to address a portion of Plaintiffs claim. A motion for leave to renew “is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation” (Renna v Gullo, 19 AD3d 472, 473 [2d Dept 2005]). ”


One Edgewater Equities LLC v Law Firm of Hall & Hall LLP     2022 NY Slip Op 31919(U) June 16, 2022 Supreme Court, New York County Docket Number: Index No. 158110/2021 Judge: Barry R. Ostrager stands for the simple proposition that the failure to file a notice of appeal is a departure from good practice, and successor attorney, who came into the case long after the 30 day notice of appeal period had passed cannot be blamed.

“The Court declines to dismiss the first cause of action for legal malpractice against the three defendants. It is undisputed that neither the associate nor anyone else at the firm filed a
Notice of Appeal to preserve the client’s rights, which was well within the scope of the Retainer Agreement. Efforts by successor counsel were limited as a result to motions before the same trial judge who had sua sponte issued the restraint, which was subject to a different standard than the standard for an appeal. While it is unclear whether plaintiff can ultimately prove that they would have prevailed “but for” the alleged malpractice of the defendants, enough has been shown at the pleading stage. Since the motion was on notice, the decision that included the restraint could have been challenged on appeal. And successor counsel was ultimately able to get the restraint vacated. However, successor counsel could not pursue a prompt appeal of the August 31, 2018 order because he was not substituted in until April 8, 2019, well beyond the 30-day deadline to file a notice of appeal. Nor can the Court find as a matter of law at this stage of the litigation that the manner in which successor counsel litigated the case was an “intervening cause” that relieved the Hall firm of liability. Damages have been sufficiently stated at the pleading stage. Therefore, based on the liberal construction of the pleadings and defendants’ failure to produce documentary evidence that establishes a defense as a matter of law, dismissal of the claim is not warranted and plaintiff can pursue discovery. Leon v Martinez, 84 NY2d 83, 87-88 (1994). “

A legal malpractice case was lost in discovery disputes.  In a fairly rare application of CPLR 3126, the complaint was stricken in Gorbatov v Tsirelman  Decided on June 22, 2022
Appellate Division, Second Department.

“In 2014, the plaintiffs commenced this action against, among others, the defendant Leon Kucherovsky and the defendants Gary Tsirelman and Law Office of Gary Tsirelman, P.C. (hereinafter together the Tsirelman defendants, and collectively with Kucherovsky, the defendants), the plaintiffs’ former attorneys, inter alia, to recover damages for legal malpractice and violation of Judiciary Law § 487. In August 2015, Kucherovsky served the plaintiffs with demands for a bill of particulars and discovery. In July 2016, the Tsirelman defendants also served the plaintiffs with demands for a bill of particulars and discovery. The plaintiffs failed to respond to the demands. Thereafter, pursuant to a stipulated preliminary conference order dated January 11, 2018 (hereinafter the January 2018 order), the plaintiffs were directed to respond to the defendants’ demands by February 12, 2018. Although the plaintiffs consented to the January 2018 order, they did not respond to the defendants’ demands. Thereafter, in a compliance conference order dated May 31, 2018 [*2](hereinafter the May 2018 order), the Supreme Court directed the plaintiffs to respond to the defendants’ demands within 20 days. The plaintiffs did not do so.”

“”Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading or preclusion of evidence, where a party ‘refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed'” (Aha Sales, Inc. v Creative Bath Prods., Inc., 110 AD3d 1019, 1019, quoting CPLR 3126). “If a party served with a demand for a bill of particulars willfully fails to provide particulars which the court finds ought to have been provided . . . , the court may make such final or conditional order with regard to the failure or refusal as is just, including such relief as is set forth in [CPLR 3126]” (CPLR 3042[d]). The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter within the discretion of the court (see Smookler v Dicerbo, 166 AD3d 838, 839). “The drastic remedy of striking a pleading is appropriate when there is a clear showing that the failure to comply with discovery demands or orders was willful and contumacious” (Henry v Atlantis Rehabilitation & Residential Healthcare Facility, LLC, 194 AD3d 1021, 1022; see CPLR 3126[3]; Gafarova v Yale Realty, LLC, 174 AD3d 862, 863). Moreover, “[t]he willful or 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 a reasonable excuse for these failures, or by the failure to comply with court-ordered discovery over an extended period of time” (Nationstar Mtge., LLC v Jackson, 192 AD3d 813, 815 [internal quotation marks omitted]; see Henry v Atlantis Rehabilitation & Residential Healthcare Facility, LLC, 194 AD3d at 1022-1023).

Here, the Supreme Court providently exercised its discretion in granting those branches of the defendants’ motions which were to strike the complaint upon finding, inter alia, that the plaintiffs’ repeated disregard of the defendants’ demands for discovery and bills of particulars, the plaintiffs’ failure to provide responses to the demands despite having participated in discovery conferences wherein they stipulated to provide such responses, the plaintiffs’ inadequate responses when they did respond, and the absence of an adequate excuse for these failures constituted willful and contumacious behavior (see Sparakis v Gozzer Corp., 177 AD3d 1011, 1012-1013; Williams v Suttle, 168 AD3d 792, 793-794).”