GIT Inc. v Quinn Emanuel Urquhart & Sullivan, LLP, 2024 NY Slip Op 05486, Decided on November 07, 2024, Appellate Division, First Department is an excellent example of how Supreme Court will pick apart legal malpractice claims under the “but for” element of causation, and will evince little reluctance to decide how the underlying case might have come out, and to dismiss accordingly.

“Plaintiff retained defendant law firm to represent it in, among other things, an action brought by nonparty UBS AG, London Branch to enforce guaranties plaintiff had given in connection with UBS’s refinancing of delinquent loans to two of plaintiff’s subsidiaries. Defendant’s efforts were ultimately unsuccessful, and judgment was entered against plaintiff on the guaranties. Plaintiff then commenced this action alleging that defendant negligently represented it in the underlying action.”

“In the first cause of action plaintiff contends that defendant should have advanced an argument that pursuant to the literal terms of the refinancing credit agreements, UBS was required to, but did not, loan an additional $100 million to plaintiff’s subsidiaries, and this failure of consideration rendered the guaranties unenforceable. However, plaintiff admits that this interpretation of the credit agreements was not intended by the parties and is contradicted by the sworn declarations of its own executives. Further, plaintiff does not allege that it ever told defendant to advance this interpretation of the credit agreements. Supreme Court thus properly determined that defendant did not commit malpractice in failing to advance this argument, because, among other reasons, plaintiff’s new interpretation of the credit agreements was not supported and was commercially unreasonable (see e.g. Cole v Macklowe, 99 AD3d 595, 596 [1st Dept 2012]). Even had defendant raised an argument based on this interpretation of the credit agreements in the underlying action, plaintiff’s executives’ own sworn declarations unambiguously confirm that no party understood or intended for the credit agreements to be read in the way plaintiff now proposes.

In the second cause of action plaintiff asserts that defendant negligently failed to argue that the subsidiaries’ obligations under the credit agreements, based on the parties’ parol understandings of those agreements, were void for lack of consideration. Plaintiff argues, in essence, that the parties’ “real” agreement, as opposed to the express terms of the credit agreements, was unenforceable because it provided certain subsidiaries [*2]with only past consideration that was not specifically addressed in writing. This borderline frivolous defense would not have changed the outcome of the underlying action, and defendant did not commit legal malpractice in failing to assert it. The plain purpose of the credit agreements — read as a whole and discerning the parties’ intent — was to refinance the subsidiaries’ past debt. This purpose was reflected in the terms of the credit agreements and was not merely the parties’ parol understanding. Thus, there was not only past consideration inherent in the credit agreements, but the present consideration the subsidiaries received in having their prior debt converted into new loans, as well as the lender’s forbearance with respect to the subsidiaries’ default on the prior debt.

Supreme Court also properly dismissed the third cause of action, which states that defendant negligently failed to argue that the guaranties were unenforceable as written. This cause of action is essentially a repackaging of plaintiff’s other claims, and it is insufficient for the same reasons as plaintiff’s enforceability challenges to the credit agreements.

Supreme Court properly dismissed plaintiff’s fourth cause of action, in which plaintiff alleges that defendant negligently failed to challenge the enforceability of the guaranties because the subsidiaries were insolvent at the time the parties entered into the relevant agreements. This defense to the guaranties is barred by the “absolute and unconditional” nature of the guaranties (see e.g. Compagnie Financiere v Merrill Lynch, 188 F3d 31, 35 [2d Cir 1999]). Supreme Court properly found that defendant was not negligent for not interposing this defense, because defenses like this one would not have been entertained in the underlying action even had defendant raised them.

Finally, Supreme Court properly dismissed the fifth cause of action, which alleges that defendant did not adequately assert a fraudulent inducement defense. Even had defendant fully pursued the defense to the extent that plaintiff now claims it should have, the federal court presiding over the underlying action recognized that plaintiff could not satisfy the elements of fraudulent inducement because the lender had not made a material misrepresentation or actionable omission. Moreover, even if the lender’s scienter with respect to the underlying fraudulent inducement claim became relevant, plaintiff can only speculate that discovery would have turned up evidence of a present intent to deceive. Defendant’s alleged failure to further pursue a factually unsupported fraudulent inducement defense in the underlying action is an insufficient basis to assert a claim for legal malpractice (see Russo v Feder, Kasovitz, Isaacson, Weber, Skala & Bass, LLP, 301 AD2d 63, 69 [1st Dept 2002]).”

Dimino v Jonathan C. Reiter Law Firm, PLLC 2024 NY Slip Op 33829(U) October 8, 2024 Supreme Court, New York County Docket Number: Index No. 805092/2024 Judge: Paul A. Goetz is a legal malpractice case based upon claims of negligent filing of a WTC Victim’s Compensation case.

“Plaintiffs, Nancy Dimino and Sabrina Dimino are the widow and daughter respectively of Stephen Dimino, who died in the World Trade Center on September 11, 2001 (NYSCEF Doc No 1 ,i 5-6). Plaintiffs initially retained defendants in 2002 to assist them in obtaining compensation from the 9/11 Victim’s Compensation Fund (“VCF”) and subsequently, as relevant to this lawsuit, from the later-created United States Victims of State Sponsored Terrorism Fund (the “Fund”) (id. at f 1, 14). Created by Congress in 2015, compensation from the Fund was to be paid to victims of state sponsors of terrorism, including but not limited to, the Islamic Republic of Iran (“Iran”) (id).

In 2015, Congress enacted the Justice for United States Victims of State Sponsored Terrorism Act (34 USC§ 20144) which establishes the Fund to provide compensation to certain people who are injured in or by acts of international state-sponsored terrorism, and who obtain a judgment issued by a United States district court under state or federal law against a foreign state that was designated as a state sponsor of terrorism (id. at ,i 19). When the Fund was first created it excluded anyone who had preciously received compensation from the VCF, however in 2019, Congress expanded the definition of eligible claimants to include those previously excluded spouses and surviving dependents of 9/11 decedents such as the Diminos (id. at 19 – 20). Congress set February 19, 2020, as the deadline for newly eligible claimants to file claims seeking compensation from the Fund (NYSCEF Doc No 1 at ,i 23). In the federal Southern District of New York case, In re: Terrorist Attacks on September 11, 2001, a liability default judgment was entered against Iran, allowing victims and families of terrorist attacks to receive compensation from the Fund if they obtain a default judgment against Iran (id. at ,i 15 – 18). Plaintiffs allege that defendants failed to acquire a default judgement against Iran and submit them as part of their claims to the Fund prior to the February 19, 2020 deadline (id. at ,i 29). Because of this alleged failure, plaintiffs allege that on May 8, 2020 they received notice that their claims were denied (id. at ,i 39). Plaintiffs further allege that the defendants failed to initially add Sabrina as a plaintiff when seeking the default judgment leading to further delays (id. at ,i 45). While plaintiffs did eventually receive compensation from the Fund, they further allege that defendants failed to seek an award for economic loss which would have increased the amount they eventually received up to the $35 million per family cap (id. at ,i 50).”

“Defendants argue that the complaint is deficient and must be dismissed because it does not establish that the plaintiffs’ rights are not still viable with successor counsel. They argue that plaintiffs do not allege that their claims were denied with no opportunity to recover. Plaintiffs argue that their complaint is sufficient and that this motion was brought prematurely. When reviewing a “motion to dismiss for failure to state a cause of action pursuant to CPLR 321 l(a)(7), [courts] must accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every reasonable inference, and determine only whether the facts, as alleged fit within any cognizable legal theory” (Bangladesh Bank v Rizal Commercial Banking Corp., 226 AD3d 60, 85-86 [1 st Dept 2024] [internal quotations omitted]). “In making this determination, we are not authorized to assess the merits of the complaint or any of its factual allegations” (id. at 86 [internal quotations omitted]). Further “[i]n assessing a motion under CPLR 321 l(a)(7), … the criterion is whether the proponent of the pleading has a cause of action, not whether [they have] stated one” (Eccles v Shamrock Capital Advisors, LLC, 2024 NY Slip Op 02841 [Ct App May 23, 2024] [internal quotations omitted]). “In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” (Aur v Manhattan Greenpoint Ltd., 132 AD3d 595, 595 [1st Dept 2015]). “[P]rior to commencing a legal malpractice action, a party who is likely to succeed on appeal of the underlying action should be required to press an appeal. However, if the client is not likely to succeed, he or she may bring a legal malpractice action without first pursuing an appeal” (Grace v Law, 24 NY3d 203,210 [2014]). But, “at this preliminary stage of the litigation, the defendants have [the burden to] demonstrate that the plaintiffs subsequent attorney had a sufficient opportunity to correct their alleged error in failing to amend the petition, such that they did not proximately cause any damages flowing from that error” (Gobindram v Ruskin Moscou Faltischek, P.C., 175 AD3d 586, 591 [2d Dept 2019]). Here, accepting the facts in the complaint as true and granting “the plaintiff[ s] the benefit of every reasonable inference, and determine[ing] only whether the facts, as alleged fit within any cognizable legal theory” (Bangladesh, 226 AD3d at 85-86) as a court must on a motion to dismiss pursuant to CPLR § 321 l(a)(7), plaintiffs have stated a cause of action for legal malpractice.”

Braig v Baker 2024 NY Slip Op 51438(U) Decided on October 22, 2024 Supreme Court, Westchester County Giacomo, J. is an interesting case in which a $ 1M + settlement was obtained, but two sets of attorneys shied away from continuing the case against an employer of the driver. Attorney 2 seeks to blame Attorney 1 for shortcomings in discovery. The question of whether Attorney 2 could have fixed the mistakes of attorney 1 did not arise.

“Plaintiffs allege Baker committed legal malpractice in the representation of plaintiffs in the underlying action in that Baker voluntarily discontinued the underlying action against defendant JAG without plaintiffs’ knowledge, permission or consent, relegating the plaintiffs with only a possibility of recovery of the insurance coverage of $1.3 million underwritten by Liberty Mutual Insurance Company, instead of recovery against the owner of the vehicle, JAG. Plaintiffs claim that from the time Baker’s representation began through the conclusion of the case, it failed to discuss, disclose or otherwise inform them of its decisions which were detrimental to the underlying case and failed to prepare them for their depositions resulting in pre-trial testimony that was deficient, devastating and detrimental to their case. Plaintiffs also allege that Baker failed to properly prepare for the arbitration proceeding in their case which included failing to retain an accident reconstructionist, failing to have up to date medical records and reports available for the arbitrator, and failing to retain an expert with respect to alcohol consumption to refute the claim of plaintiff Mary Braig’s alcohol impairment in the underlying case. The complaint asserts that the arbitrator awarded only $225,000.00 to plaintiffs as a result of Baker’s conduct. In the complaint, plaintiffs seek damages in the amount of five million dollars.

By decision and order dated March 27, 2023, this Court denied Baker’s motion to dismiss and held that plaintiffs stated a cause of action to recover damages for legal malpractice in their amended complaint. Baker filed its answer on April 6, 2023 and filed a third-party summons and complaint on June 20, 2024.

In the third-party complaint, Baker alleges that the legal malpractice of Huston is the proximate cause of the plaintiffs’ alleged monetary damages and the third-party complaint asserts claims for common-law indemnification and for contribution. The third party complaint alleges that plaintiffs retained Huston to represent them in the initial underlying motor vehicle action. Huston acted as the attorney for plaintiffs between May 19, 2017 and September 12, 2018 and had commenced an action on behalf of plaintiffs. Baker was substituted as counsel on or about September 12, 2018. Baker alleges that Huston failed to preserve critical evidence, failed to [*2]engage appropriate or necessary experts, failed to conduct appropriate discovery and otherwise failed to perform its duties as counsel for plaintiffs. For instance, Baker claims that in May 2017, defendant in the underlying action had an expert examine the 2015 BMW. Defendant then returned the leased BMW to the dealership in June 2018. However, Huston failed to have an expert inspect the BMW prior to that time and failed to otherwise preserve any evidence related to the BMW including digital data. According to Baker, this preservation and inspection of the BMW was essential and would allow an accident reconstruction expert to testify on plaintiffs’ behalf. However, due to Huston’s alleged inactions and negligence, the BMW subsequently became inaccessible and unavailable. These actions occurred prior to when Baker was substituted as counsel.”

“The Court finds that Baker failed to state a cause of action against Huston for common-law indemnification, as plaintiffs in their underlying complaint “did not seek to hold [Baker] responsible for another’s wrong,” such as any alleged failure to preserve the 2015 BMW, but “directly charged [Baker] with negligence . . .” Alva v Gaines, Gruner, Ponzini & Novick, LLP, 121 AD3d 724, 726 (2d Dept 2014) (“The Supreme Court also properly determined that the GGP&N defendants failed to state a cause of action against the Marcus attorneys for common-law indemnification, since the Alvas did not seek to hold the GGP&N defendants responsible for another’s wrong, but directly charged the GGP&N defendants with negligence in allowing the statute of limitations to expire in connection with the claims based on Atzl’s November 2005 conduct”).

Moreover, the claims against Baker in the underlying legal malpractice claim are based upon specific actions taken by Baker, including failing to prepare plaintiffs for depositions, discontinuing the action against JAG without consulting plaintiffs and failing to retain an alcohol consumption expert. Thus, Baker’s role in causing plaintiffs’ injuries, if any, would not be “solely passive.” See e.g. Bivona v Danna & Assoc., P.C., 123 AD3d at 958 (“Thus, the documentary evidence submitted by M & S in support of its motion [to dismiss the cause of action for common-law indemnification in the third-party complaint] conclusively established that any liability on the part of the Danna defendants for legal malpractice was not solely passive and purely vicarious”).”

“Here, construing the third-party complaint liberally, accepting the facts alleged in the complaint as true, and according third-party plaintiff the benefit of every possible inference, Baker has stated a cause of action to recover for contribution. See e.g. Bivona v Danna & Assoc., P.C., 123 AD3d 956, 959 (2d Dept 2014)( “defendants/third-party plaintiffs properly stated a cause of action [for contribution] alleging that [third-party defendant’s] legal malpractice contributed to the plaintiff’s damages, and documentary evidence did not conclusively establish a complete defense to that cause of action”); see also Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 AD3d at 589. As set forth in the examples above, including the failure to preserve the 2015 BMW, the third-party complaint alleges sufficient facts which, if true, would establish that any legal malpractice committed by Huston proximately caused plaintiffs to sustain actual damages, making Huston liable to Baker for contribution. Whether the inadequate arbitrator’s award, among other damages alleged by plaintiffs, was result of either Baker and/or Huston’s negligence is a question of fact. As a result, the third-party complaint sufficiently states a cause of action for contribution.”

Although not a typical claim that the experts were badly selected, or were not competent, D’Angelo v Kujawski 2024 NY Slip Op 05200 Decided on October 23, 2024
Appellate Division, Second Department is really about experts. The case was decided on an analysis of the opposing experts in the underlying medical malpractice case.

“The plaintiff commenced this action against Mark C. Kujawski, Kujawski & Kujawski (hereinafter the Kujawski firm, and together with Mark C. Kujawski, the defendants), and another defendant to recover damages for legal malpractice. The plaintiff alleged, inter alia, that an SF-95 form prepared by the Kujawski firm on her behalf in connection with a medical malpractice action that she filed pro se in the United States District Court for the Eastern District of New York on behalf of her deceased son (hereinafter the decedent) was inadequate because the SF-95 form made no reference to medication as a contributing factor in the decedent’s death. After issue was joined in this action, the plaintiff moved for summary judgment on the issue of liability based upon the affirmation of her medical expert who opined that the decedent’s death was caused by a “narcotic-type overdose, which led to progressive respiratory depression.” The defendants cross-moved for summary judgment dismissing the amended complaint insofar as asserted against them, submitting, among other things, an affidavit and an affirmation of two physicians, both of whom examined the decedent’s medical records and reached a contrary conclusion to the plaintiff’s expert. In an order dated January 14, 2021, the Supreme Court, inter alia, granted the defendants’ cross-motion. The plaintiff appeals.

The defendants established, prima facie, that the plaintiff could not have prevailed in the underlying medical malpractice action based upon the opinions of their two experts. The defendants’ experts opined that Zofran, which was administered to the decedent before his death, did not contribute to the decedent’s death. The defendants’ experts further opined that the decedent suffered from multiple ailments, including chronic pain syndrome, spent most of his time in bed, and was on “long-term opiate therapy” for his pain condition, which rendered him highly tolerant of both fentanyl and oxycodone. One of the defendants’ experts averred that the plaintiff had been “receiving exactly the same dose and timing of both fentanyl and oxycodone that he [had been] taking outside of the hospital” for many years. The defendants’ experts further noted that the administration of Narcan when the decedent coded was not evidence that he was suffering from a drug overdose, since a patient in cardiac and/or respiratory arrest will commonly be given Narcan just in case narcotics are contributing to his or her condition as Narcan does no harm. Therefore, the defendants established, prima facie, that the plaintiff’s claims in the underlying medical malpractice action were not viable based upon proof that the decedent’s condition was not the result of an overdose of narcotic drugs.

In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s expert never attempted to refute the opinion of the defendants’ experts that Zofran did not contribute to the decedent’s death. Further, the plaintiff’s expert never addressed the contention of the defendants’ experts that patients who have been prescribed opiates are given Narcan if they go into coronary pulmonary arrest just in case the opiates are contributing to the condition since Narcan does no harm. Since the plaintiff’s expert failed to address the specific assertions of the defendants’ experts, the plaintiff failed to raise a triable issue of fact as to whether the plaintiff had viable claims in the underlying medical malpractice action (see Scopelliti v Westmed Med. Group, 193 AD3d 1009, 1011).

Accordingly, since the opinion of the plaintiff’s expert that the plaintiff had a viable claim was “conclusory in nature and not supported by available facts,” and was not sufficient to rebut the defendants’ prima facie showing that the plaintiff could not have prevailed in the underlying medical malpractice action, the Supreme Court properly granted the defendants’ cross-motion for summary judgment dismissing the amended complaint insofar as asserted against them.”

We rarely see the Appellate Division, or courts in general, take up the issue of a “time sensitive” setting in determining whether an attorney departed from good practice by telling the client to get advice from an outside attorney, especially where the advice comes up in a specialized area. In Porter v Bachner, 2024 NY Slip Op 05191, Decided on October 22, 2024 Appellate Division, First Department this is one of the reasons to deny dismissal even the CPLR 3212 inflection point.

“Defendants have not established their entitlement to summary judgment, as issues of fact remain about the reasonableness of defendants’ advice to settle before discovery and accept a FINRA bar (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Bernstein v Oppenheim & Co., P.C., 160 AD2d 428, 430 [1st Dept 1990]). Although defendants’ advice would have been reasonable if the circumstances were as they described — that plaintiff admitted to fraudulently submitting personal expenses and altered receipts for reimbursement, that he was unwilling to take even a small risk of criminal prosecution, and that a FINRA bar was likely inevitable whether or not plaintiff cooperated with the investigation — plaintiff has offered conflicting evidence that calls the circumstances into question. The record shows that plaintiff was informed of and agreed to defendants’ strategy and presumably knew the truth of his own underlying conduct and his own preferences with respect to various courses of action, even if defendants misunderstood them. However, if defendants misstated the likelihood of a bar being imposed after cooperating with the FINRA investigation, then plaintiff would have been unable to appropriately assess his options, rendering his approval of defendants’ strategy meaningless.

We reject defendants’ argument that advice on the effect of a FINRA bar on plaintiff’s future employment was outside the scope of the representation. The retainer agreement broadly defined the representation as one “in connection with a FINRA investigation relating to [plaintiff’s] past employment at Goldman Sachs & Co.” Defendants could not effectively immunize themselves for failing to provide appropriate advice on a subject within the scope of the representation by referring plaintiff to another attorney with whom plaintiff never connected, especially when a draft agreement with FINRA had already been circulated and the decision whether to accept it was time-sensitive.

Issues of fact exist with respect to proximate causation, as the parties submitted conflicting expert opinions regarding the likelihood of a post-investigation FINRA bar (see Rudolf, 8 NY3d at 442). This conflict cannot be resolved at [*2]this stage of the litigation.

Issues of fact also exist regarding the existence of “actual and ascertainable” damages (see id. at 442). Plaintiff testified that he lost career opportunities because of the FINRA bar and also had to pay legal fees in a separate action initiated in response to his partners’ discovery of the bar. The extent to which the claims in that action stem from defendants’ alleged negligence, as opposed to plaintiff’s own misconduct in lying to his partners or other unrelated issues, is an issue for a factfinder. Similarly, the factfinder must determine the extent to which plaintiff should have further mitigated damages by seeking different career opportunities and the likelihood that he could have gotten a bad-actor waiver of the FINRA bar (see 17 CFR 230.506[d][2][ii]).”

In Supreme Court the judge, sua sponte, dismissed or declined to consider the Judiciary Law 487 counterclaims. In Matter of Jones Law Firm, P.C. v J. Synergy Green, Inc.
2024 NY Slip Op 05053 Decided on October 15, 2024 the Appellate Division, First Department determined that there is no appellate remedy, even where the AD determined that dismissal of the counterclaims was improper.

“Appeal from order, Supreme Court, New York County (Lyle E. Frank, J.), entered August 2, 2023, which, to the extent appealed from, declined to consider the counterclaims of respondents J. Synergy Green, Inc. Avrohom Y. Sorotzkin, and Yaakov Milstein (respondents) related to alleged violations of Judiciary Law § 487, unanimously dismissed, without costs.

The Judiciary Act § 487 counterclaims interposed in this action involve an inquiry into disputed facts as to whether petitioner Jones Law Firm, P.C. intentionally deceived respondents (see Matter of David H. Berg & Assoc. v Weksler, 193 AD3d 612, 613 [1st Dept 2021]). Petitioner did not seek dismissal of these claims. Consequently, Supreme Court improperly dismissed these counterclaims sua sponte. “Vacating the dismissal order is consistent with the public policy of this State to dispose of cases on their merits (Harwood v Chaliha, 291 AD2d 234, 234 [1st Dept 2002]), and upholds the principle that a trial court’s power to dismiss an action sua sponte should be used ‘sparingly and only in extraordinary circumstances'” (Cooper v Broems, 214 AD3d 497, 497 [1st Dept 2023] [internal quotation marks omitted]; see Ray v Chen, 148 AD3d 568, 569 [1st Dept 2017]; Grant v Rattoballi, 57 AD3d 272, 273 [1st Dept 2008]; see also Myung Chun v North Am. Mtge Co., 285 AD2d 42, 45 [1st Dept 2001]; Mateo v City of New York, 274 AD2d 337, 337 [1st Dept 2000]). However there is no right of appeal from an ex parte order, including an order entered sua sponte (Sholes v Meagher, 100 NY2d 333, 335 [2003]). Under these circumstances, the appropriate remedy is for us to dismiss the appeal.”

Payne v Rosenberg, Minc, Falkoff & Wolff, LLP 2024 NY Slip Op 05143 Decided on October 17, 2024 Appellate Division, First Department is not a particularly controversial decision, and we wonder why an appeal was taken. Nevertheless, a protective order concerning medical records and collateral source information was denied by the trial court and affirmed on appeal.

“The court properly denied plaintiff’s motion for a protective order, finding that plaintiff failed to meet her initial burden (see Liberty Petroleum Realty, LLC v Gulf Oil, L.P., 164 AD3d 401, 403 [1st Dept 2018]). Plaintiff’s legal malpractice cause of action concerns not only defendant’s alleged failure to commence collection proceedings in a timely fashion against the named defendant in the underlying personal injury action, but also the failure to name an additional defendant who had an interest in the subject property. Contrary to plaintiff’s contention, the requested materials may be relevant to assess whether plaintiff was likely to prevail against the unnamed defendant, and whether the unnamed defendant had any defenses as to liability or the amount of damages alleged (see generally Stawski v Pasternack, Popish & Reif, P.C., 54 AD3d 619, 620 [1st Dept 2008]). While the named defendant defaulted and plaintiff obtained a judgment against it, plaintiff has not established that the unnamed defendant would have defaulted or had no defenses.”

We are almost at the end of reading cases which discuss the Covid tolling of the statute of limitations in 2020. Here is one of the last likely legal malpractice cases extended by the plague.

In Nath v Chemtob Moss Forman & Beyda, LLP 2024 NY Slip Op 05061 Decided on October 15, 2024 the Appellate Division, First Department affirmed denial of a CPLR 3211 motion in a divorce setting, and gave a terse but informing description of how the statute of limitations might be applied to multiple claims within a continuing representation analysis.

“Defendants represented plaintiff in a divorce proceeding in New York. She now alleges that defendants committed legal malpractice by failing to advise her to file for divorce in California, which distributes property in a manner that she alleges would have been more favorable to her. She further alleges that California had jurisdiction for commencement of a divorce on the basis of numerous documents showing that her then-husband’s main address was in San Francisco. At the motion to dismiss stage, pursuant to CPLR 3211(a)(7) (see generally Lieberman v Green, 139 AD3d 815, 816 [2d Dept 2016]), these allegations sufficiently state that defendants “failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession” and that their failure caused plaintiff to suffer “actual and ascertainable damages” (id. at 816-817 [internal quotation marks omitted]; see Escape Airports [USA], Inc. v Kent, Beatty & Gordon, LLP, 79 AD3d 437, 438 [1st Dept 2010]).”

“Plaintiff’s claims are not time-barred. So much of the claims as allege that defendants failed to request maintenance and legal fees in the divorce action accrued on December 23, 2019, when the divorce court granted defendants’ motion to withdraw as plaintiff’s counsel. Since plaintiff commenced the instant action on December 15, 2022, this branch of her malpractice [*2]claim is timely.

Plaintiff’s claim that defendants should have advised her to bring suit in California accrued at the earliest on September 11, 2019. Her claim that they should have introduced evidence to support her motion for exclusive occupancy of the marital residence accrued on November 14, 2019, when the divorce court denied that motion. The continuous representation doctrine does not extend beyond November 27, 2019, when defendants informed plaintiff that they could no longer represent her (see Ellison v Seltzer, 209 AD3d 522, 522 [1st Dept 2022]; RJR Mech. Inc. v Ruvoldt, 170 AD3d 515 [1st Dept 2019]). COVID tolling, however, renders these claims timely (see Murphy v Harris, 210 AD3d 410, 411 [1st Dept 2022]).”

SJB RE Holdings, LLC v Gifford 2024 NY Slip Op 30924(U) March 21, 2024 Supreme Court, Saratoga County Docket Number: Index No. EF20233420 Judge: Richard A. Kupferman is a case about an apartment tenant moving out, and the landlord keeping the security deposit, over whether the apartment needed repainting and whether the landlord was permitted to keep an insurance payment. The landlord then sued the tenants and their attorney for defamation (in court proceedings) and violation of JL 487, to no avail.

“Plaintiffs filed a verified complaint against Defendants on December 5, 2023. The first four causes of action in the complaint are against Defendants Ryan Gifford and Gabrielle Gifford (the “Giffords”) for breach of contract, negligence, gross negligence, and tortious interference. These claims allege that the Giffords (tenants) breached a lease agreement by engaging in conduct prohibited under the terms of the lease and that they further caused damage by flushing feminine hygiene products down the toilet.

The remaining two claims in the complaint (the fifth and sixth causes of action) are asserted against the Giffords and their litigation counsel, Defendant, Terence J. Devine (“Devine”). These claims are based on statements that Devine made on the record during a court proceeding in the Waterford Town Court. The fifth cause of action is for defamation and seeks $1,000,000 in punitive damages, while the sixth cause of action seeks to recover monetary damages under Judiciary Law§ 487.”

Further, it is well settled that “a statement, made in open court in the course of a judicial proceeding, is absolutely privileged if, by any view or under any circumstances, it may be considered pertinent to the litigation” (Martirano v Frost, 25 NY2d 505, 507 [1969]). As explained by the Court of Appeals, nothing “said in the court room may be the subject of an action for defamation unless … the statement [is] so outrageously out of context as to permit one to conclude, from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame” (id. at 508). As is readily apparent, the statements complained of were made in open court and challenged the basis for Better’s retention of the security deposit and the charges for repairs. Such statements were absolutely pertinent to the litigation and, as such, are privileged (see id.; Gill v Dougherty, 188 AD3d 1008, 1010 [2d Dept 2020] [“The cause of action alleging defamation failed because the challenged statements were absolutely privileged as a matter of law and cannot be the basis for a defamation action”]). The allegations in the pleading and opposition papers similarly fail to allege sufficient facts to state a cause of action under Judiciary Law § 487. 1 Even when viewed in the light most favorable to the Plaintiffs, the statements made by Devine were not deceitful in any manner at all (see Gill, 188 AD3d at 1009). In fact, it is readily apparent that under no circumstances could a reasonable person conclude that Devine accused Better of any crime or engaged in any attorney misconduct. Accordingly, the Court finds that the complaint ( even as amended) fails to state a cause of action for defamation, slander, and/or a violation of the Judiciary Law. The fifth and sixth causes of action are therefore DISMISSED. “

Silverstein v Nezhat 2024 NY Slip Op 32173(U) June 24, 2024 Supreme Court, New York County Docket Number: Index No. 109486/2006 Judge: Kathy J. King is a good example of how Courts generally treat Judiciary Law 487 claims. They are skeptical, and have a high tolerance to attorney conduct, rarely upholding a 487 claim.

“The instant medical malpractice action was commenced in 2006 against Mount Sinai Hospital and Dr. Farr Nezhat. Plaintiff, who is an attorney and proceeding pro se in this application, was represented by counsel at trial, in early 2016. The case was tried to verdict over the course of 15 days before the Honorable Eileen A. Rakower, and ultimately the jury ruled in favor of the defendants on plaintiff’s medical malpractice and lack of informed consent claims. Judgment was entered on June 1, 2016. The record reveals that a notice of appeal was filed on behalf of plaintiff; however, plaintiff never perfected her appeal, and according to defendants, the appeal was dismissed on defendants’ motion. In support of her motion, plaintiff argues that the judgment must be vacated because defense counsel engaged in fraudulent conduct at trial through “deceit and collusion” with the defendants, defense witnesses, and defense experts, resulting in a “fraudulent verdict.” In essence, plaintiff asserts, inter alia, that witnesses perjured themselves at the behest of defense counsel. Plaintiff also asserts that during the trial defense counsel used defamatory language when speaking about the plaintiff to the jury.”

“The Court further finds that plaintiff’s reliance on Judiciary Law § 487 is barred by collateral estoppel which gives conclusive effect to prior determinations when two conditions are met. There must be “an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling” (Lennon v 56th and Park (NY) Owner, LLC, 199AD3d 64, 69 [2d Dept 2021], quoting Buechel v Bain, 97 NY2d 295, 303-04 [2001] [internal quotation marks omitted]). Here, the issue as to whether defendants’ attorneys violated Judiciary Law § 487 prior to and during the trial of the instant medical malpractice action was determined in a plenary matter commenced by plaintiff. By Decision and Order dated May 30, 2023, bearing Index No. 151024/2022, the Court (J. Ramseur) denied plaintiff’s motion under Judiciary Law § 487. Thus, vacatur of the judgment and damages is barred by collateral estoppel.”