CPLR 203(d) is a little known exception to the three-year statute of limitations for legal malpractice under CPLR 214(6), and allows any claims, whether time barred or not, to survive as an offset. In Landy Wolf, PLLC v Sanko 2025 NY Slip Op 33690(U) September 27, 2025 Supreme Court, New York County Docket Number: Index No. 651419/2024 Judge Nicholas W. Moyne demonstrates how it is applied.

“The Plaintiff, L W ( or its predecessor Steven Landy & Associates, PLLC), commenced this action seeking to recover $268,084.33 in unpaid legal fees owed by its former client, Sanko. L W represented Sanko in a complex multi-party action concerning the partition and sale of property located at 801-803 Greenwich Street (the “Property”). LW ceased representing Sanko on January 28, 2020. Sanko filed his Answer and Counterclaims in this action on May 7, 2024. · Sanko asserts counterclaims againstLW for Breach of Fiduciary Duty, Unjust Enrichment, and Breach of Contract, arguing that the fees sought by L W arose from representation “marred by unwaivable conflicts of interest.” The core of Sanko’ s defense and counterclaims rests upon L W’s representation of Sanko, Sank.o’s ex-wife Mary “Tai” Burnette, and Craig Abramowitz (the lender) simultaneously.”

“L W correctly asserts that claims sounding in legal malpractice, regardless of nomenclature (contractor tort), are subject to a three-year Statute of Limitations (SOL), pursuant to CPLR § 214(6). The representation ended on January 28, 2020,meaning the SOL for professional negligence and/or legal malpractice expired on January 28, 2023. Since Sanko filed his counterclaims on May 7, 2024, any claims seeking affirmative damages or judgment beyond the amount demanded by L W are clearly time-barred. However, Sanko correctly invokes CPLR § 203( d), which permits a defense or counterclaim arising from the same transactions or occurrences upon which the complaint depends to be maintained as an offset, even if time-barred as an independent action. L W’s claims for breach of contract, accounts stated, and quantum meruit all stem from the professional relationship and the billing practices challenged by Sanko. Therefore, L W’s motion to dismiss based on the Statute of Limitations is granted only to the extent that Sanko’s counterclaims seek affirmative monetary relief (i.e., damages exceeding $268,084.33, the amount L W demands). The motion is denied as to the remainder of the claims, which are preserved as defenses and offsets against L W’s demand for unpaid fees, pursuant to CPLR § 203(d). A similar result applies to the breach of fiduciary duty counterclaim. L W argues that the BFD claim fails due to lack of particularity (CPLR 3016(b)) and because documentary evidence (Conflict Waivers) refutes the claim. The BFD claim alleges that L W breached its duty by failing to provide services “untainted by divided loyalty” through the simultaneous representation of Sanko (borrower), Burnette, and Abramowitz (lender). Sank.o’s core argument is that the alleged ethical violation (simultaneous adverse representation) mandates a forfeiture of fees, independent of proving traditional legal malpractice damages. L W concedes that allegations concerning misconduct, billing practices, and divided loyalty, if proven, are a basis for asserting a counterclaim ( or defense) related to fee entitlement. This issue of whether the alleged misconduct warrants a forfeiture of fees paid or owed must be resolved through fact-finding.”

“The Court finds that Sanko’s counterclaims survive as defenses and offsets pursuant to CPLR § 203( d) due to pervasive factual disputes concerning the ethical validity of L W’s representation, the existence of a waivable conflict (Ethics Opinion 952), the scope of services rendered, and the legitimacy of the fees billed. Therefore, it is hereby ordered that the motion to dismiss the counterclaims is granted only to the extent that the counterclaims asserted by the defendant Anton Sanko seek affirmative monetary relief in excess of the amount demanded in the Complaint; and it is further ordered that the plaintiffs motion is denied in all other respects, and the defendant’s counterclaims are retained solely as defenses and offsets against the amounts sought by the Plaintiff; and it is further ordered that all parties are directed to proceed with disclosure.”

“

Merely repeating that plaintiffs were unable to prove the element of causation, without explaining why, in Howlader v Aranow Law, P.C. 2025 NY Slip Op 05505 Decided on October 8, 2025 Appellate Division, Second Department affirmed denial of summary judgment to plaintiff and the grant of summary judgment to defendants.

“In this legal malpractice action, the plaintiffs alleged that the defendants failed to properly counsel the plaintiffs on pre-bankruptcy planning. The plaintiffs asserted that, as a consequence of the defendants’ negligence, a bankruptcy trustee challenged the plaintiffs’ claimed homestead exemption under section 282 of the Debtor and Creditor Law, resulting in the plaintiffs entering into a court-approved stipulation of settlement with the bankruptcy trustee at a cost of $130,000. The plaintiffs moved for summary judgment on the issue of liability, and the defendants cross-moved for summary judgment dismissing the complaint. In an order entered February 6, 2024, the Supreme Court denied the plaintiffs’ motion and granted the defendants’ cross-motion. The plaintiffs appeal.”

“Here, the Supreme Court properly determined that the defendants established, prima facie, that the plaintiffs would be unable to prove the element of causation (see 11 USC §§ 522[o]; 548[a][1][A]; Debtor and Creditor Law § 282[i]; see generally Valley Ventures, LLC v Joseph J. Haspel, PLLC, 102 AD3d 955, 956). In opposition, the plaintiffs failed to raise a triable issue of fact.

“Accordingly, the Supreme Court properly granted the defendants’ cross-motion for summary judgment dismissing the complaint and properly denied the plaintiffs’ motion for summary judgment on the issue of liability.”

Condon Paxos PLLC v SRC Constr. Corp. of Monroe 2025 NY Slip Op 51505(U) Decided on September 15, 2025 Supreme Court, Rockland County Cornell, J. is a discussion of ancient legal malpractice law coupled with application of a settlement agreement and determines whether the law firm may claim a contingent fee after being fired, settling a legal malpractice claim and litigating with its former clients.

“This action arises from a legal fee dispute between Plaintiff Condon Paxos PLLC, as successors-in-interest to Condon & Associates, PLLC, and Defendants SRC Construction Corp. of Monroe (“SRC”) and Michael Caridi. In 2010, Defendant SRC retained Plaintiff to represent it in an action against the Atlantic City Housing Authority (ACHA), an architect (“Lindemon”), [*2]
and an engineering firm (“Czar”) in a dispute surrounding the construction of a 48 unit low income senior housing project. Plaintiff filed an action in Federal Court, District of New Jersey, on behalf of SRC against ACHA, Lindemon, and Czar on August 8, 2010 (the “New Jersey Action”). A letter of engagement was signed by Defendants on August 9, 2010, in which the parties agreed to a 33% contingency legal fee.”

“Lindemon and Czar each moved to dismiss the suit against them, alleging that the complaint failed to state a claim upon which relief could be granted. Lindemon and Czar argued that the plaintiff had not filed Affidavits of Merit of professional negligence within 60 days of filing the complaint, as required by N.J.S.A. § 2A:53A-27. On April 12, 2011, the New Jersey District Court granted Czar’s motion and partially granted Lindemon’s motion (see SRC Const. Corp. of Monroe v. Atl. City Hous. Auth., No. 1:2010cv-3461, 2011 WL 1375680 [D.N.J. Apr. 12, 2011]). Two years later, Lindemon’s motion for summary judgment on the same issue was granted (see SRC Const. Corp. of Monroe v. Atl. City Hous. Auth., No. 1:2010cv-3461, 2013 WL 5771142 [D.N.J. Oct. 24, 2013]).”

“According to Plaintiff, on the eve of the arbitration hearing in 2017, he was informed that Defendant Caridi had just discovered that Czar was no longer part of the action (Doc. 85, Aff. of Condon ¶ 4). Plaintiff alleges that co-counsel, Robert Hantman, advised Plaintiff to put his malpractice carrier on notice, but, despite this, Plaintiff believed that the firm would continue as lead counsel for the arbitration (id. ¶ 5-6). Plaintiff alleges that he decided not to continue representing SRC after consultation with his legal malpractice carrier (id. ¶ 9). Plaintiff claims that Caridi was disappointed by Plaintiff’s decision to withdraw because Caridi did not want Plaintiff off the case (id. ¶¶ 9, 11).

According to Defendants, Plaintiff was terminated on October 10, 2017, based on Plaintiff’s failure to file the affidavits of merit in 2011 (see Doc. 90, Caridi Aff. ¶¶ 9-11). Defendant Caridi alleges that the lead arbitrator advised him that Plaintiff could not continue to represent SRC (see id. ¶ 10). Caridi alleges that, in addition to the failure to file the Affidavits of [*3]Merit, there were other breakdowns in the legal relationship. Specifically, Caridi claims that there were repeated failures to communicate, unauthorized consents to adjournments requested by ACHA, and an intentional misrepresentation of the reason for the dismissal of Czar and Lindemon from the action (see id. ¶ 12).

Plaintiff agreed to a settlement of $150,000 payable to Defendants by Plaintiff’s malpractice insurance carrier. SRC and Caridi individually each signed a General Release dated October 11, 2017, which states in relevant part:

Releasor . . . in consideration of the sum of $150,000 . . . release and discharge Condon & Associates, PLLC and Brian K. Condon, individually, [and their] . . . successors and assigns from all actions, causes of action, suits, . . . covenants, contracts, controversies, agreements, promises, . . . damages, . . . claims, and demands whatsoever, in law, . . . or equity . . . which the Releasors . . . ever had . . . shall or may have for, upon, or by reason of any matter, cause, or thing whatsoever from the beginning of the world to the day of the date of this Release.

(Doc. 89).

The arbitration was held and Defendants were awarded $2,294,074.85 in a Final Award dated June 20, 2018 (see Doc. 86; SRC Const. Corp. of Monroe v. Atl. City Hous. Auth., No. 1:2010cv-3461, 2019 WL 1238822 [D.N.J. March 18, 2019] (denying motion by ACHA to vacate arbitration award)). Notably, the arbitrators determined that ACHA did not meet its burden to have any of the damages assigned to the negligence of Lindemon or Czar, so no set off was awarded to ACHA (Doc. 86, p. 11).”

“Plaintiff filed the instant action on April 22, 2022, alleging entitlement to a legal fee of $777,731.34, per the terms of the Letter of Engagement. Defendants filed an answer with counterclaims on July 25, 2022, denying that any fees were owed to Plaintiff. Defendants moved to compel arbitration. By Decision and Order dated July 18, 2024, this Court denied Defendant’s motion because the amount in controversy exceeds $50,000. A note of issue and certificate of readiness was filed on March 18, 2025. Trial was scheduled to commence on May 7, 2025.

On April 6, 2025, Defendants filed a motion seeking various relief, including summary judgment, vacatur of the note of issue pursuant to 22 NYCRR 202.21(e), or, alternatively, leave to amend their answer. Plaintiff cross-moved for summary judgment on Defendants’ counterclaims and for leave to amend the complaint pursuant to CPLR 3025 (b). In a Decision and Order dated May 2, 2025, this Court denied Defendants’ motion in its entirety. (Doc. 63). Plaintiff’s motion for summary judgment dismissing the counterclaims was granted. Specifically, this Court held, “[v]iewing the papers of both parties in a light most favorable to the Defendants, the Court finds that Defendants’ negligence and malpractice counterclaims are barred by release and therefore summary judgment is warranted.” (id. at 5). The Court further stated:

Defendant Caridi, acting in his individual capacity and on behalf of Defendant SRC Construction Corp., expressly released Plaintiff and its successors from any and all claims arising out of or relating to the prior representation in the New Jersey Action, the same transactions and occurrences at issue in this legal fee action. Defendants cannot revive the negligence and malpractice claims in this action.”

“A release is a contract, and its interpretation is governed by contract law principles (see Kaminsky v Gamache, 298 AD2d 361 [2d Dept 2002] (citing Mangini v McClurg, 24 NY2d 556, 562 [1969])). A release “that is complete, clear, and unambiguous on its face must be enforced according to the plain meaning of its terms” (Alvarez v Amicucci, 82 AD3d 687, 688 [2d Dept 2011]; see Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 NY3d 269 [2011]). “Whether or not a writing is ambiguous is a question of law to be resolved by the courts” (W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). Finally, “[t]he meaning and coverage of a general release necessarily depends upon the controversy being settled and upon the purpose for which the release was given.” (Gale v Citicorp, 278 AD2d 197, 197 [2d Dept 2000]).

The Court finds that the language of the General Releases is not ambiguous. The releases refer generally to the matter of SRC Construction Corp of Monroe d/b/a SRC Industries Inc. v. Atlantic City Housing Authority, et al., and release any claims that Defendants ever had against Plaintiff. Therefore, the Court finds that General Releases preclude Defendants from raising the issue of alleged malpractice. Further, defense counsel is prohibited from attempting to adduce proof at trial that Plaintiff was terminated for cause based on any alleged malpractice that occurred.

Preventing Defendants from raising these matters as defenses is required by the General Releases and follows logically from the General Releases. While the General Releases do not explicitly refer to any waiver on Defendants’ part of defenses, it would be a mistake if this analysis did not go further. The practical effect of opening the door to Defendants to raise (1) malpractice and/or (2) for cause termination as defenses would result in Defendants attempting to prove those claims. While Defendants, of course, seek to distinguish having released affirmative claims against Plaintiff from retaining defenses in the legal fee litigation, that is a [*5]distinction without a difference.

These proposed defenses are, in reality, affirmative claims which would not only result in a prohibited “trial within a trial” but would clearly run afoul of the General Releases whereby Defendants released Plaintiff from all “claims”, “controversies” etc. These proposed defenses cannot be said to be anything other than those released “claims” or “controversies.” Thus, the General Releases not only protect Plaintiff against the claims being used as swords seeking affirmative relief, but also prevent these claims from being used to shield Defendants in this litigation.

Having previously determined that Defendants’ counterclaims alleging malpractice and for cause termination required dismissal, it follows that allowing introduction of evidence attempting to prove these claims must be precluded.”

Philip F. Alba, P.C. v Jattan 2025 NY Slip Op 33488(U) September 16, 2025 Supreme Court, Kings County Docket Number: Index No. 507470/2017 Judge: Reginald A. Boddie is an interesting case in which a bench trial of attorney fee claims with legal malpractice defenses ends with an award, but significantly trimmed for “excessive billing.”

“To establish a breach of contract claim, as here, the plaintiff must allege that 1) a contract
exists· 2) plaintiff performed in accordance with the contract; 3) defendant breached its contractual obligations; and 4) defendant s breach resulted in damages (34-06 73, LLC v Seneca Insurance Company, 39 Y3d 44 [2022]; Friends of Wickers Creek Archeological Site, Inc, v Landing on the Water at Dobbs Ferry Homeowner Association, Inc., 198 AD3d 726 [2d Dept 2021]).
The prima facie elements of an account stated are 1) evidence of an account (a bill), based
on a prior transaction between the parties, which was presented by one party to the other, 2) the recipient accepted the account (bill) as correct, either expressly or implicitly by failing to object to the amount stated therein within a reasonable timeframe, and 3) evidence the recipient had promised to pay the amount stated (Santander Bank, NA. v Rubin Trading Corporation, 68 Misc. 3d 1013 [Kings Supreme 2020]).

As the Second Department previously articulated, ‘ An essential element of an account
stat d is that the parties came to an agreement with respect to the amount due regarding the amount due (Episcopal Health Services, Inc. v POM Recoveries, Inc. , 138 AD3d 917 [2d Dept 2016] [citations omitted]). Further, mere silence and failure to object alone cannot be construed as an agreement to the correctness of account. However, the factual situation regarding the transactions absent objection made within a reasonable time may permit the finding of an account stated (id.).

After hearing and weighing the evidence adduced at trial here, the Court finds the evidence
establishes breach of contract, in that Plaintiff and Defendant entered into two contracts, namely the retainer agreements that Plaintiff performed in accordance with the Agreements, that Defendant breached the agreements by not making full payment, and that Plaintiff suffered damages in the form of unpaid attorneys ‘ fees as a result.

In light of the Court’s finding of the existence of two valid contracts, the account stated
claim is dismissed a duplicative. In the alternative, the account stated claim is denied on the ground Defendant objected to the bills as excessive, and accordingly there was no agreement that he would pay the amounts as stated in the bills (Episcopal Health Services, Inc. v POM Recoveries, Inc. , 138 AD3d 917 [2d Dept 2016]). Upon review, the Court also finds the bills to be excessive.

Courts have generally held, “When the terms of a written contract are clear and
unambiguous, the intent of the Parties must be found within the four corners of the contract, giving practical interpretation to the language employed and the reasonable expectations, thus a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms ” RMP Capital Corp. v Victory Jet, LLC, 193 AD3d 836 [2nd Dept 2016], quoting Westchester County Corr. Officers Benevolent Assn. , Inc. v County of Westchester, 99 AD3d 998 [2nd Dept 201.2]). Here the subject Agreements unambiguously provided for payment upon demand, although Linda Alba credibly testified that the Firm was willing to await payment until the estates received the anticipated funds. However Defendant and his brother frustrated those efforts by redirecting the funds to themselves as evidenced by the Stipulation of settlement (Exhibit 13). Accordingly they should not be rewarded for same.

Nevertheless the award of attorneys’ fees must be reasonable and not excessive (RMP
Capital Corp. v Victory Jet, LLC, 193 AD3d 836 [2nd Dept 2016]). The fee should represent the reasonable value of the services rendered (id.).”

“Moreover the determination must be based upon a demonstration of the hours reasonably
expended on the litigation and what is reasonable compensation for the attorney based upon the prevailing rate for similar work in the community. The determination of a reasonable attorney’s fee is left to the sound discretion of the trial court (id.).

Further, pursuant to CPLR 213 , an action for attorneys ‘ fees must be commenced within
six years from accrual of the claim. Therefore, here all outstanding balances incurred prior to April 17 , 2011 are excluded pursuant to the six year statute of limitations, for a total deduction in the amount of 82 836.24, leaving a balance of $85 , 158 . 12 (Ste wart v Stuart 262 AD2d 3 96 [2d Dept 1999]).

Review of the remaining charges demonstrative excessive billing (see Exhibit 4). For
example, on April 17 , 2011 , Plaintiff billed one hour or $400 to review a letter and 50 minutes or $200 to dictate a three -page letter. Telephone conferences were typically billed at a minimum of fifteen minutes, regardless of the length of the call. On May 3, 2011 , dictation of a single affidavit was billed at 2 hours or $800.00. The same day two conferences with the client were billed; one at 4 hours or $975.00, and the second at 1.5 hours or $600. On May 27, 20211 , a conference to discuss status of the litigation was charged at 4 hours or $1,300.
Conclusion
Accordingly, the Court finds that the bills were permeated with excessive billing. Further,
no credentials were provided to this court relative to Philip Alba or any of the associates with which to asses their credentials and experience. Accordingly, the Court finds Plaintiff is entitled to an award of attorneys ‘ fees in the amount of $50,000 plus interest from April 17, 2017.

Plaintiff shall submit a proposed judgment accordingly on notice.”

Facey v Liane Fisher, Esq. 2025 NY Slip Op 33456(U) September 15, 2025 Supreme Court, New York County Docket Number: Index No. 152088/2025 Judge: Mary V. Rosado is a legal malpractice case which is full of surprises. The first is that Plaintiff was actually paid the settlement amounts (and made to take it at the direction of a US District Judge), and after that Plaintiff’s attorney had a filing full of AI mistakes.

“Upon the foregoing documents, and after a final submission date of June 16, 2025, Defendants Liane Fisher, Esq. (“Fisher”) and Fisher Taubenfeld, LLP’s (“Fisher Taubenfeld”) motion to dismiss Plaintiff Monique Facey’s (“Plaintiff’) Amended Complaint pursuant to CPLR 3211(a)(l) and (a)(7), and for sanctions, is granted. Plaintiff’s cross motion to strike from Defendants’ motion papers allegedly scandalous material and imposing sanctions on Defendants is denied. Moreover, counsel for Plaintiff is directed to, within five days, submit an affirmation advising the Court whether he used artificial intelligence applications and/or chatbots to write his motion papers. He must also explain why his motion papers repeatedly cite to cases that do not exist and/or stand for legal propositions that are discussed nowhere in the cited decisions.”

“Allegedly Plaintiff received a settlement check in January of 2025, but was informed by her bank that the check was fraudulent. Plaintiff then alleges that Defendants lied about wiring the settlement funds to her bank. Based on these interactions, Plaintiff asserts claims for breach of fiduciary duty, negligence, and negligent infliction of emotional distress against Defendants. However, reality is wholly separate from these allegations, which the Court finds to be entirely misleading to the point requiring sanctions. The reality is that when Plaintiff attempted to deposit her settlement check at her bank, Defendants received a fraud alert from Chase which required Defendants to verify the check. After realizing the amount of settlement proceeds disbursed to Plaintiff ($85,553.95) was lower than it should be ($89,553.43), Defendants cancelled the check and wired $89,553.43 to Plaintiff on February 7, 2025 (NYSCEF Doc. 15). On February 12, 2025, Plaintiff informed Defendants that the wire transfer was rejected. According to Chase, the wire was rejected because Plaintiff’s bank account was restricted (NYSCEF Doc. 17). Defendants e-mailed Plaintiff on February 12, 2025 to coordinate delivery of another settlement check to Plaintiff (NYSCEF Doc. 19). However, the very next day, on February 13, 2025, Plaintiff, through her counsel in this lawsuit, filed a Complaint in the Eastern District of New York making identical allegations to Amended Complaint here (NYSCEF Doc. 20). On February 14, 2025, Plaintiff initiated this lawsuit. Defendants’ counsel repeatedly reached out to Plaintiff’s counsel, stating the wire transfer did not occur due a hold on Plaintiff’s bank account, and repeatedly tried to disburse settlement funds to Plaintiff via check, but Plaintiff’s counsel never responded (NYSCEF Doc. 21). On March 7, 2025, the parties appeared in the Southern District of New York before United States District Judge Valerie E. Caproni, who supervised the delivery of the settlement check to Plaintiff, informed Plaintiff’s counsel that he is responsible for the obstruction in the check being delivered,and warned the parties that if they ever behave like this again they will be sanctioned (NYSCEF Doc. 23-24).”

“The Court likewise finds sanctions to be appropriate. This Court rarely, if ever grants sanctions, but in this case, the Court finds them warranted. Plaintiff’s counsel violated his duty of candor in informing the Court that Defendants repeatedly tried to send him the settlement check pre-suit and post-suit, and he never affirmatively informed the Court after filing this lawsuit that a Federal District Court judge compelled Plaintiff and him to accept the settlement check. Moreover, the Court finds the Complaint to be malicious and aimed at embarrassing and harassing Defendants. There is no reason why Plaintiffs counsel decided to include Plaintiffs photograph in the Complaint. Moreover, although United States District Judge Valerie Caproni warned Plaintiffs counsel his conduct was sanctionable, he has done nothing to correct his unprofessional and deceitful behavior in this action. This conduct cannot go unaddressed and without consequences. Therefore, Defendants’ motion for sanctions pursuant to 22 NYCRR 130-1.l(a) is granted, and Defendants shall submit a fee application so they can be granted a judgment against Plaintiffs counsel awarding them their legal fees incurred in filing this motion.”

“Finally, the Court must address the fact that Plaintiff’s motion papers are riddled with incorrect and false citations. It is well known that motion papers with incorrect and/or false citations is a sign that legal papers were written using artificial intelligence. This arises from a phenomenon associated with artificial intelligence where the artificial intelligence applications or chatbots “hallucinate” and generate fake or misleading legal citations due to programming flaws. For example, Plaintiff cites to a case called James v. City of New York, 144 AD3d 604, 605 (1st Dept 2016) and Board of Mgrs. of28 Cliff St. Condominium v. Maguire, 191 AD3d 553 (1st Dept 2021) (see NYSCEF Doc. 4 7). But no cases with these names exist under these citations, and while there is a First Department case from 2016 captioned James v. City of New York, 144 A.D.3d 466 (1st Dept 2016) there is nothing in that case related to the legal argument Plaintiff was making, namely whether an amended complaint makes a motion to dismiss moot. Likewise, while there is a case captioned Board of Managers of 28 Cliff Street Condominium v Maguire, 191 A.D.3d 25 (1st Dept 2020), that case too has nothing to do with the impact of an amended pleading being filed during a motion to dismiss. Plaintiff also cited to a case captioned Xiong v. Knight, 80 A.D.3d 1055 (3d Dept 2011)2 (see NYSCEF Doc. 38). But there is no such. Plaintiff cited to a case captioned Johnson v. Stadtlander, 162 A.D.3d 1580 (4th Dept 2018), but there is no case with that caption or that citation. There are other fake and/or incorrect citations in Plaintiffs papers, but the Court finds the ones highlighted here are sufficient to warrant an explanation from Plaintiff’s counsel. Therefore, within five days from entry of this Decision and Order, Plaintiff’s counsel must submit an affirmation advising the Court whether he used artificial intelligence applications and/or chatbots to write his motion papers. He must also explain why his motion papers repeatedly cite to cases that do not exist and/or stand for legal propositions that are discussed nowhere in the cited decisions.”

Matter of Hart 2025 NY Slip Op 04993 Decided on September 17, 2025 Appellate Division, Second Department discusses the applicability of Part 137 arbitrations to legal malpractice defenses and attorney fee awards in Surrogate’s Court, as well as the necessity of an engagement letter.

“In 2014, Clifford J. Hart (hereinafter the decedent) executed a will with the assistance of the petitioner, a law firm that provides estate planning services. The decedent died in November 2014, survived by his sons Jake Hart and Alex Hart. Subsequently, the petitioner began work on behalf of the Estate of Clifford J. Hart (hereinafter the estate). No engagement letter was executed. [*2]In February 2015, after the petitioner secured the appointment of Jake Hart as administrator of the estate, Martin Goldman informed the petitioner that the estate would not pay the petitioner’s invoices because there was no executed engagement letter.

In June 2015, the petitioner filed a petition pursuant to SCPA 2110 to fix and determine compensation for services rendered on behalf of the estate. The estate, Jake Hart, Alex Hart, and Naomi Hart (hereinafter collectively the appellants) interposed an amended answer with counterclaims.

In August 2021, after discovery disputes and the issuance of various discovery orders, the appellants moved, inter alia, for summary judgment dismissing the petition on the ground that the petitioner failed to comply with an obligation to serve the appellants with notice of a right to resolve the underlying fee dispute via arbitration pursuant to 22 NYCRR part 137. Thereafter, the petitioner moved for leave to renew that branch of its prior motion which was pursuant to CPLR 3126 to strike the appellants’ amended answer with counterclaims based on the appellants’ repeated failure to comply with discovery requests and orders, which had been denied in an order dated May 5, 2021, and for an award of attorneys’ fees incurred in making the motion.

In an order dated January 12, 2022, the Surrogate’s Court, among other things, denied that branch of the appellants’ motion which was for summary judgment dismissing the petition, granted leave to renew and, upon renewal, granted that branch of the petitioner’s prior motion which was pursuant to CPLR 3126 to strike the appellants’ amended answer with counterclaims, granted that branch of the petitioner’s motion which was for an award of attorneys’ fees incurred in making the motion, and granted the petition to the extent of awarding the petitioner legal fees in the sum of $14,537.50 and disbursements in the sum of $655, to be charged against the estate. In an order dated March 15, 2022, the court, inter alia, directed Jake Hart and Alex Hart to pay the petitioner the principal sum of $4,735 as an award of attorneys’ fees incurred in making the motion, among other things, for leave to renew. These appeals ensued.

SCPA 2110(1) provides that “[a]t any time during the administration of an estate and irrespective of the pendency of a particular proceeding, the court is authorized to fix and determine the compensation of an attorney for services rendered to a fiduciary or to a devisee, legatee, distributee or any person interested.” A proceeding pursuant to SCPA 2110 may be initiated by “an attorney who has rendered services” to an estate (id. § 2110[2]). The Surrogate’s Court has broad discretion to determine what constitutes a reasonable attorney’s fee for such services, regardless of the terms of a retainer agreement or other agreement between the parties (see Matter of Brody, 202 AD3d 781, 782; Matter of LiGreci, 195 AD3d 617, 618; Matter of McCann, 236 AD2d 405, 406).

The New York State Fee Dispute Resolution Program (hereinafter the Fee Dispute Resolution Program) (22 NYCRR part 137) provides “for the informal and expeditious resolution of fee disputes between attorneys and clients through arbitration and mediation” (id. § 137.0). Part 137 expressly provides that it does not apply to “claims involving substantial legal questions, including professional malpractice or misconduct” (id. § 137.1[b][3]; see Soni v Pryor, 102 AD3d 856, 857).

Here, contrary to the appellants’ contention, they did not have a right to arbitrate the issues raised in this proceeding in the Fee Dispute Resolution Program, and thus, they had no right to a notice advising them of such a right. The Fee Dispute Resolution Program “is a creature of court rules and does not supplant or otherwise displace the authority of [the] Surrogate’s Court to fix counsel fees—authority conferred by statute” (Matter of Ruth A. Timm Irrevocable Trust [Moore—St. Julien], 222 AD3d 1051, 1053; see 22 NYCRR 137.1[b]). Further, to the extent that the appellants’ counterclaims alleged legal malpractice by the petitioner, arbitration pursuant to the Fee Dispute Resolution Program was not available here (see 22 NYCRR 137.1[b][3]; Matter of Ruth A. Timm Irrevocable Trust [Moore—St. Julien], 222 AD3d at 1052; Mahler v Campagna, 60 AD3d 1009, 1012). Accordingly, the Surrogate’s Court properly denied that branch of the appellants’ motion which was for summary judgment dismissing the petition.”

Olshan Frome Wolosky LLP v Kestenbaum 2025 NY Slip Op 33276(U) August 29, 2025 Supreme Court, New York County Docket Number: Index No. 656174/2023 Judge: Lyle E. Frank stands for the proposition that outside parties which are not part of the retainer agreement, and paid fees on behalf of the client might seek unjust enrichment claims against the attorney.

“Plaintiff Olshan Frome Wolosky, LLP, represented defendants Louis Kestenbaum, Joel Kestenbaum, Fortis Property Group, LLC, FPG Maiden Lane LLC, and FPG Maiden Holding
LLC (collectively, except for Louis Kestenbaum who is no longer part of this action,
“Defendants”) in three proceedings in New York County (the “Underlying Proceedings”). At one point, after tensions between the parties, they entered into a stipulation regarding Plaintiff’s substitution as counsel in the Underlying Proceedings. The present action is brought by Plaintiff who alleges that Defendants have failed to pay over $1 million in legal fees. Defendants answered and asserted four counterclaims, largely based on the position that Plaintiff caused them harm by prematurely abandoning representation. Plaintiff moved to dismiss the counterclaims in their entirety, based in large part upon the stipulation. The Court issued an Order on May 9, 2025, dismissing all four counterclaims.”

“Defendants bring the present motion for reargument, seeking restoration of the counterclaims for breach of contract, breach of fiduciary duty, and unjust enrichment. They are not challenging the dismissal of the claim for legal malpractice. Defendants argue that the Court overlooked material such as emails that were submitted with the original motion to dismiss and erred in applying the CPLR § 3211 standard. Plaintiff opposes the motion. For the reasons that follow, the motion is granted only as to the restoration of the unjust enrichment counterclaim.”

“Defendants argue that the Court overlooked affirmations that expanded on the pleadings
and emails submitted showing the context of the stipulation of withdrawal when dismissing the breach of contract claim based on the stipulation. They argue that there are factual issues going to whether Plaintiff’s behavior in the Underlying Proceedings and leading up to the substitution of counsel constituted a breach of the parties’ retainer agreement. But regardless of whether the Court considered the emails and affidavits, the breach of contract claim was still properly dismissed. As pointed out in the May Order, Defendants did not, and have still not, alleged that they performed under the contract. As this is an essential element of a breach of contract claim, the counterclaim was properly dismissed for failure to state a cause of action. See, e.g., Weintraub v. F.M.B. Realty Co., 196 A.D. 525, 528 [1st Dept. 1921] (complaint was fatally defective due to failure to allege plaintiff’s performance under the contract); ASKL Enters., Inc. v. NYNEX Long Distance Co., 7 A.D.3d 424, 425 [1st Dept. 2004] (plaintiff’s performance an “essential element” of a claim for breach of contract).”

“While a claim for breach of fiduciary duty normally has a “considerably lower standard of recovery” than one for legal malpractice, when the claim is centered around alleged attorney misfeasance the standard is the same and “the plaintiff must establish the ‘but for’ element of malpractice.” Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 56 A.D.3d 1, 10 – 11 [1st Dept. 2008]. As addressed in the May Order’s analysis of the dismissed legal malpractice claim, Defendants have failed to allege this element of attorney malpractice. Dismissal of this counterclaim was proper.”

“Defendants argue that the Court erred in dismissing the unjust enrichment counterclaim
based on the existence of a contract between the parties, as that counterclaim was pled in the alternative. Furthermore, they argue that the Court overlooked that several of the Defendants were not parties to the contract in question but made payments to Plaintiff that give them grounds to pursue an unjust enrichment counterclaim. When there is a dispute regarding the application of a retainer agreement as to the parties, unjust enrichment may be pursued as an alternative claim. Chowaiki & Co. Fine Art Ltd. v. Lacher, 115 A.D.3d 600, 601 [1st Dept. 2014]. The Court’s dismissal of this counterclaim was premature, and therefore reargument is granted to the extent that the unjust enrichment counterclaim is restored.”

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In the past 10 years, judiciary Law 487 claims have become more and more popular. Weaver v Hatem 2025 NY Slip Op 04931 Decided on September 10, 2025
Appellate Division, Second Department is an example of such a claim being denied with little comment.

“In September 2019, the plaintiff commenced this action against Albert A. Hatem, Grace Edwards-Simon, Anfernee Simon, Marlene Dennis, and Tracy Pardo, the Chief Clerk of the Supreme Court, Bronx County, Civil Term, and another defendant, asserting causes of action alleging violations of Civil Rights Law §§ 50 and 51 and negligence. The plaintiff also asserted a cause of action alleging a violation of Judiciary Law § 487(1) against only Hatem. The plaintiff alleged that his right to privacy was violated when Edwards-Simon and her son, Simon (hereinafter together the Simon defendants), took photographs of the plaintiff without his permission at certain real property located in the Bronx that was the subject of an adverse possession action. The plaintiff alleged that Hatem filed an order to show cause in the Office of the Bronx County Clerk and attached thereto an affirmation and an affidavit that contained false statements, as well as the photographs. The plaintiff sought damages and to direct Pardo to expunge the submissions attached to the order [*2]to show cause.

In November 2019, Pardo moved pursuant to CPLR 3211(a)(2) and (7) to dismiss the complaint insofar as asserted against her. In December 2019, the plaintiff moved, inter alia, to disqualify Hatem from representing the Simon defendants in this action. In July 2020, Hatem and the Simon defendants cross-moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them. The Supreme Court, among other things, granted Pardo’s motion and the unopposed cross-motion of Hatem and the Simon defendants and denied, as academic, that branch of the plaintiff’s motion. The plaintiff appeals.”

“The Supreme Court properly denied, as academic, that branch of the plaintiff’s motion which was to disqualify Hatem from representing the Simon defendants in this action. “[A] party seeking disqualification of its adversary’s lawyer must prove: (1) the existence of a prior attorney-client relationship between the moving party and opposing counsel [or a firm with which the lawyer formerly was associated], (2) that the matters involved in both representations are substantially related, and (3) that the interests of the present client and former client are materially adverse” (Sentry at QB, LLC v Xi Hui Wu, 219 AD3d 649, 650 [internal quotation marks omitted]). When a firm sought to be disqualified has never represented the moving party, that firm owes “no duty to that party” and “it follows that if there is no duty owed there can be no duty breached” (Ellison v Chartis Claims, Inc., 142 AD3d 487, 488 [internal quotation marks omitted]; see Sentry at QB, LLC v Xi Hui Wu, 219 AD3d at 650). Here, it is undisputed that Hatem never represented the plaintiff, and since the plaintiff was not a present or a former client of Hatem, the plaintiff lacked standing to seek Hatem’s disqualification on the basis of a conflict of interest (see Sentry at QB, LLC v Xi Hui Wu, 219 AD3d at 650). Moreover, as Hatem withdrew from representing the Simon defendants and was never representing any other defendant, the court properly determined that the issue was academic.

The parties’ remaining contentions either are without merit, need not be reached in light of our determination, or concern matter dehors the record.”