Kohler v Polsky 2023 NY Slip Op 04373 Decided on August 23, 2023 Appellate Division, Second Department describes a familiar situation in which a construction worker, injured on the job, retains an attorney to file a Worker’s Compensation claim, and assumes that the attorney will also file a personal injury claim. Often, the WC attorney does not, and never had any intention of litigating a PI claim and never led the client to believe that the attorney was starting anything but the WC case.

“In 2009, the plaintiff James Kohler (hereinafter the plaintiff) injured his knee when he slipped and stepped into a hole while working on a tunnel construction project. The same month, upon his physician’s recommendation, the plaintiff met with the defendant Mark S. Polsky, an attorney with the defendant Polsky, Shouldice & Rosen, P.C., for a consultation to discuss his knee injury. At the consultation, the plaintiff signed an engagement letter which stated, inter alia, that he retained the defendants to represent him only in relation to a workers’ compensation claim, and not for any other claims arising from the accident. At his deposition, the plaintiff acknowledged that he understood the engagement letter, but he did not remember whether he read the engagement letter before he signed it or discussed the scope of the representation beyond that the defendants would file a workers’ compensation claim on behalf of the plaintiff and his wife. The defendants filed the workers’ compensation claim, which was ultimately resolved.

In 2014, the plaintiff, and his wife suing derivatively, commenced this action, alleging, inter alia, that the defendants committed legal malpractice by failing to inform the plaintiff that he had potentially meritorious personal injury claims against certain third parties, and that the plaintiff would have prevailed on such claims if the defendants had prosecuted them or advised the plaintiff to seek counsel to prosecute them before the deadline to serve a notice of claim had expired. The defendants moved for summary judgment dismissing the complaint, and the plaintiff and his wife cross-moved for summary judgment. The Supreme Court, inter alia, granted those branches of the motion which were for summary judgment dismissing the causes of action alleging legal malpractice and loss of consortium and denied those branches of the cross-motion which were for summary judgment on those causes of action. The plaintiff and his wife appeal.”

“Rule 1.2(c) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides, in relevant part, that “[a] lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances [and] the client gives informed consent.” “An attorney may not be held liable for failing to act outside the scope of the retainer” (Genesis Merchant Partners, L.P. v Gilbride, Tusa, Last & Spellane, LLC, 157 AD3d 479, 482; see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428).

Here, the defendants demonstrated, prima facie, that the acts that they allegedly failed to perform were beyond the scope of the engagement letter, which was prepared by the defendants and signed by the plaintiff (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d at 435; DeNatale v Santangelo, 65 AD3d 1006, 1007; Turner v Irving Finkelstein & Meirowitz, LLP, 61 AD3d 849, 850). In opposition, the plaintiff and his wife failed to raise a triable issue of fact (cf. Garcia v Polsky, Shouldice & Rosen, P.C., 161 AD3d 828, 830).

Accordingly, the Supreme Court properly granted those branches of the defendants’ motion which were for summary judgment dismissing the causes of action alleging legal malpractice and loss of consortium. The parties’ remaining contentions are academic in light of the foregoing.”

Tueme v Lezama 2023 NY Slip Op 03036 [217 AD3d 715] June 7, 2023
Appellate Division, Second Department touches on false arrest, malicious prosecution, negligent infliction of emotional distress and violation of Judiciary Law 487.

One of the claims against the attorneys was that the attorney gave false testimony in a criminal case against him. This was determined to be insufficient to invoke Judiciary Law 487,

“Further, the Supreme Court erred in denying those branches of the attorney defendants’ motion which were pursuant to CPLR 3211 (a) to dismiss the causes of action to recover damages for intentional infliction of emotional distress and violation of Judiciary Law § 487 insofar [*3]as asserted against them. With respect to the intentional infliction of emotional distress cause of action, the improper conduct alleged was not “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” (Howell v New York Post Co., 81 NY2d 115, 122 [1993] [internal quotation marks omitted]; see Matthaus v Hadjedj, 148 AD3d 425, 425-426 [2017]; Zapata v Tufenkjian, 123 AD3d 814, 816 [2014]). With respect to the Judiciary Law § 487 cause of action, the plaintiff failed to allege with specificity any material misstatements of fact made by the attorney defendants in the divorce action with the intent to deceive that court (see Bill Birds, Inc. v Stein Law Firm, P.C., 35 NY3d 173, 178 [2020]; see also Looff v Lawton, 97 NY 478, 482 [1884]). Moreover, to the extent the plaintiff alleged that Navins gave false testimony as a witness in a criminal case against him, such an allegation cannot properly form the basis of a Judiciary Law § 487 cause of action (see generally Altman v DiPreta, 204 AD3d 965, 969 [2022]).”

Lam v Weiss 2023 NY Slip Op 04308 Decided on August 16, 2023 Appellate Division, Second Department is the story of what happens when an attorney takes on a case and lets it sit for a period of time. Taking place right around Labor Day, with a foreclosure auction scheduled in the next several days, the house was lost.

“On or about August 7, 2017, Hao Lam met with the defendant Ronald D. Weiss, an attorney and the principal of the defendant Ronald D. Weiss, P.C., a law firm, for the purpose of seeking legal advice to avoid losing the home. At the time of the meeting, the plaintiffs were allegedly unaware that a foreclosure auction was scheduled for September 5, 2017. Therefore, Hao Lam did not inform Weiss of the scheduled auction during their meeting, although he purportedly advised Weiss that the home was “under foreclosure.” After obtaining some information about the plaintiffs’ finances, Weiss allegedly recommended that Hao Lam pursue a mortgage modification agreement with the lender. Weiss also purportedly advised Hao Lam that he and his wife were [*2]”excellent candidates for Chapter 13 bankruptcy[,] which would allow [them] to keep their home and retain the equity [therein],” and that his firm could represent them in such a proceeding if efforts to secure a mortgage modification agreement from the lender did not bear fruit. Based on this recommendation, Hao Lam agreed to retain Weiss’s law firm for the purpose of pursuing a mortgage modification agreement, executing a retainer agreement several days later.

On August 31, 2017, Weiss sent the plaintiffs a solicitation letter concerning the upcoming foreclosure auction, the substance of which implied that it was a form document sent to prospective clients, even though the plaintiffs had already retained Weiss’s firm. The letter, inter alia, stated that the plaintiffs had multiple options available to them to avoid losing the home, including filing a bankruptcy petition. Upon receipt of the letter on September 1, 2017, Hao Lam, allegedly believing that Weiss was in the midst of working to save his home from foreclosure, contacted Weiss’s office and left a message. Receiving no response, he called again the next day and left another message. On September 5, 2017, the day of the auction, Hao Lam called a third time and eventually spoke to Weiss’s paralegal, who, among other things, indicated that Weiss was not available to meet for a few days. On September 8, 2017, Hao Lam met with Weiss at his office, allegedly learning for the first time that his home had been sold at the foreclosure auction three days earlier. Weiss purportedly apologized for his “mistake.” The plaintiffs were later forced to vacate their home.”

“Here, the Supreme Court erred in concluding that the plaintiffs failed to set forth facts demonstrating that the defendants breached any duty owed to them. The plaintiffs’ allegations, inter alia, that Weiss failed to ascertain the status of the foreclosure action before recommending a strategy, and that his proposed strategy of focusing on the pursuit of a mortgage modification was “futile” in light of the then upcoming foreclosure auction, were sufficient, if true, for a factfinder to determine that Weiss offered negligent advice (see Esposito v Noto, 132 AD3d 944, 945-946; Coccia v Liotti, 70 AD3d 747, 753; Terio v Spodek, 25 AD3d 781, 782-785). Moreover, the court improperly determined that the defendants could not be held liable pursuant to the attorney judgment rule, i.e., that Weiss’s mortgage modification focused strategy, as merely the “selection of one among several reasonable courses of action[,] does not constitute malpractice” (Silverman v Eccleston Law, LLC, 208 AD3d 705, 707 [internal quotation marks omitted]). The defendants improperly raised this issue for the first time in their reply affirmation, and there is no indication that the plaintiffs were afforded the opportunity to submit a surreply affirmation (see Ayers v Bloomberg, L.P., 203 AD3d 872, 875). In any event, the defendants failed to “offer a reasonable strategic explanation” for recommending pursuit of a mortgage modification agreement less than one month before the scheduled foreclosure auction as the means of avoiding loss of the plaintiffs’ home, as would have been required to establish a defense based upon the attorney judgment rule (Ackerman v Kesselman, 100 AD3d 577, 579 [internal quotation marks omitted]). Nor did the terms of the retainer agreement utterly refute the factual allegations of the amended complaint and conclusively establish a defense to the allegations of liability as a matter of law to warrant dismissal pursuant to CPLR 3211(a)(1) (see Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d at 715). The fact that the defendants’ scope of representation as defined in the retainer agreement was limited to the pursuit of a mortgage modification agreement did not, inter alia, absolve them from potential liability for allegedly offering negligent advice during the initial meeting with Hao Lam.”

Johnson v Watts 2023 NY Slip Op 32825(U) August 14, 2023 Supreme Court, Kings County Docket Number: Index No. 502133/2018 Judge: Peter P. Sweeney is a textbook example of a legal malpractice claim. Client severs her finger in a door accident and sues the municipal landlord. The attorney fails timely to file the notice of claim and then handles the 50-h hearings. The PI case is dismissed on notice grounds. Client sues the attorney.

“The plaintiff commenced this action against the defendant sounding in legal malpractice alleging that the defendant failed to preserve her claim for personal injuries against the New York City Housing Authority (“NYCHA”) by failing to serve it with a timely notice of claim. The plaintiff resides in an apartment located within a NYCHA facility and claims that when she was leaving her apartment to go to work on the June 14, 2012, the front door to the apartment slammed on her left hand and severed the tip of her middle finger. The plaintiff commenced an action against NYCHA claiming that it was negligent in failing to maintain the door in a reasonably safe condition

After the defendant commenced the action on plaintiff’s behalf, NYCHA moved to
dismiss the action due to plaintiff’s failure to timely file a notice of claim.1 The motion was granted. The defendant now seeks summary judgment dismissing this action claiming that the plaintiff cannot show that NYCHA’s negligence caused the accident.

In support of the motion, the defendant relies primarily on the testimony that the plaintiff gave at a 50H hearing concerning the accident and various NYCHA work records. At the 50H hearing, the plaintiff testified that on October 6, 2008, and on March 29, 2010, she had phoned the NYCHA rent office or management office to complain about her apartment door slamming too hard. The work records of NYCHA that were submitted on the motion, however, do not document these calls or any other calls regarding complaints about the door slamming too hard. The work records also reveal that on July 11, 2011, a NYCHA employee checked plaintiff’s front door and found it to be in satisfactory condition. The plaintiff signed off on the work order without making any written comment in the work order about any problem that she was having
with the door.”

“The only argument advanced by the defendant in support of the motion is that she would not have prevailed in the underlying action. To be awarded summary judgment, it was incumbent upon the defendant to submit admissible evidence demonstrating this fact as a matter of law. Here, plaintiff’s 50H testimony did not demonstrate, as a matter of law, that the door to her apartment was reasonably safe on the day of the accident, or that NYCHA lacked actual or constructive knowledge of the alleged defective condition. Indeed, plaintiff’s testimony documents that she made complaints about the door to NYCHA prior to the occurrence raising triable issues of fact as to whether had actual and/or constructive notice that the door was defective. It will be up to a jury to decide whether her testimony concerning her prior complaints are credible given the fact that they were not documented. Indeed, plaintiff’s 50H testimony did
not even demonstrate as a matter of law that NYCHA did not create the alleged dangerous condition.

Further, since the defendant did not submit an affidavit from a person with personal
knowledge that the work records he relies on constituted NYCHA’s business records, the records were inadmissible and may not be considered. Even if they considered, they do not establish, as a matter of law, that NYCHA’s freedom from liability.”

“Turning to the cross-motion, to prevail in an action to recover damages for legal
malpractice, not only must a plaintiff establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, the plaintiff must also establish that the attorney’s breach of that duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385). To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action, or would not have incurred any damages but for the attorney’s negligence (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; Davis v. Klein, 88 N.Y.2d 1008, 1009–1010, 648 N.Y.S.2d 871, 671 N.E.2d 1268; Lamanna v. Pearson
& Shapiro, 43 A.D.3d 1111, 843 N.Y.S.2d 143; Cohen v. Wallace & Minchenberg, 39 A.D.3d 691, 835 N.Y.S.2d 285). Here, there are triable issues of fact as to whether the plaintiff would have prevailed in the underlying action but for the defendant’s negligence. The cross-motion must therefore be denied.”

Catsiapis v Pardalis & Nohavicka, LLP 2023 NY Slip Op 04185 Decided on August 9, 2023 Appellate Division, Second Department recites the unusual loss of three years of statute of limitations protection for a Judiciary Law 487 claim when it is brought up along with a legal malpractice claim. The New York Court of Appeals found that Judiciary Law 487 claims are the “common law” and subject to a 6-year statute. The Second Department found that when the claims are accompanied by a legal malpractice claim, they shed three years.

“The plaintiff commenced this action to recover damages for legal malpractice and violation of Judiciary Law § 487. The defendants moved for summary judgment dismissing the complaint. The Supreme Court, upon determining that the action was barred by the three-year statute of limitations applicable to a cause of action to recover damages for legal malpractice, granted the defendants’ motion. The plaintiff appeals. We affirm.

An action to recover damages for legal malpractice must be commenced within three years of the accrual of the cause of action regardless of whether the underlying theory is based in contract or tort (see CPLR 214[6]). An action to recover damages for attorney deceit under Judiciary Law § 487 is subject to the six-year statute of limitations set forth in CPLR 213(1) (see Melcher v Greenberg Traurig, LLP, 23 NY3d 10, 15). A legal malpractice action that also alleges a cause of action to recover damages for attorney deceit under Judiciary Law § 487 must be dismissed as time-barred if not commenced within three years of the accrual of the cause of action, if the Judiciary Law § 487 cause of action is premised on the same facts as the legal malpractice cause of action and does not allege distinct damages (see Benjamin v Allstate Ins. Co., 127 AD3d 1120, 1121; Farage v Ehrenberg, 124 AD3d 159, 169).

Here, the defendants demonstrated, prima facie, that the instant action was commenced after the expiration of the three-year statute of limitations applicable to the plaintiff’s legal malpractice cause of action (see CPLR 214[6]). Moreover, since the plaintiff’s causes of action alleging violations of Judiciary Law § 487 are premised on the same facts as the legal malpractice cause of action and do not allege distinct damages, they too are barred by the three-year statute of limitations (see Benjamin v Allstate Ins. Co., 127 AD3d at 1121; Farage v Ehrenberg, 124 AD3d at 169; see also Jemima O. v Schwartzapfel, P.C., 178 AD3d 474, 475).”

It is unusual for plaintiff to allege that mistakes were made by the attorney due to “mental illness.” Nevertheless, this claim is enunciated by the Court in Allard v Gumenick 2023 NY Slip Op 32696(U) August 4, 2023 Supreme Court, New York County
Docket Number: Index No. 158750/2022 Judge: Lisa S. Headley. The Court denied dismissal to the attorney.

“Plaintiff commenced this action for legal malpractice, which arose when plaintiff, Gisele Brouillette Allard (“Allard”), purchased a property located at 50 East 126th Street in New York, New York (the “Property”), from Robert Gerard Robinson, who was hospitalized. Plaintiff alleges that she put $35,000.00 as a down payment, and gave the prior owner a mortgage for the remaining $100,000.00 of the purchase price, but refused to make a single payment on the $100,000.00 debt. Six months after plaintiff agreed to pay the remaining $100,000.00 of the purchase price in monthly installments over 10 years, the prior owner and holder of the mortgage, Mr. Robinson, passed away.

On June 20, 2005, Cade Davis (“Executrix Davis”), executrix of Mr. Robinson’s estate,
sent plaintiff a letter accelerating payment of the full amount of the outstanding debt, but plaintiff again refused to remit payment. Subsequently, on July 5, 2005, Executrix Davis filed a Foreclosure Action against plaintiff and plaintiff’s corporation, 50 East 126th Street, Inc. In July 2019, plaintiff retained the defendants, Robert Jay Gumenick, Esq., and Robert J. Gumenick, P.C. (“Defendants’ Attorneys”) as special counsel to represent her and her corporation.

Plaintiff contends that she hired the defendants to investigate the filing of plaintiff’s
personal Chapter 11 bankruptcy on December 19, 2018, as opposed to the corporate bankruptcy of 50 East 126th Street Inc. Defendants were also hired to try to formulate a plan to save the Property from being sold at auction. Subsequently, defendants agreed to represent plaintiff in Bankruptcy Court. Plaintiff further contends that Defendant Gumenick only prepared and filed a Declaration of Allard in Opposition to Trustee’s Motion to Extend Trustee’s Time to Object to Discharge of Debtor Pursuant to Federal Rule of Bankruptcy Procedure 4004(b ), and no other advice or services were rendered during the defendants’ representation of plaintiff in Bankruptcy Court. Plaintiff alleges that Defendants breached their duties in their legal representation by not notifying the Plaintiff of the actions they took on her behalf, including their filing of motions. Plaintiff further alleges that because Defendants did not perfect appeals filed in her cas e within a timely manner, she could not retain separate counsel to rectify their error.”

“Under CPLR §3211 (a)(l), a “motion pursuant to CPLR §3211 (a)(l) to dismiss a complaint
based on documentary evidence may be appropriately granted ‘only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law’.” See, Amsterdam Hospitality Group, LLC v. Marshall-Alan Associates, Inc., 120 A.D.3d 431,433 (1st Dep’t 2014). Documents submitted in support of a motion to dismiss pursuant to CPLR §3211(a)(l), “must resolve all factual issues and dispose of the plaintiffs claim as a matter of law.” Foster v. Kovner, 44 A.D.3d 23, 28, (1st Dep’t 2007). Under CPLR §3211 (a)(7), “[i]n considering a motion to dismiss a complaint for failure to state a cause of action … the pleadings must be liberally construed.” Dye v. Catholic Med. Ctr. Of Brooklyn & Queens, 273 A.D.2d 193 (2d Dep’t 2000). (internal quotations omitted). “[T]o recover damages against an attorney arising out of the breach of the attorney’s fiduciary duty, plaintiff must establish the “but for” element of malpractice.” Knox v. Aronson, Mayefsky & Sloan, LLP, 168 A.D.3d 70,76 (2018).

Here, the Court finds that dismissal is not warranted because the evidence submitted by the plaintiff states a cognizable cause of action that the Defendants may have been negligent in handling her case. Plaintiff, in her complaint submits that Defendant Gumenick admitted that he failed to perfect two appeals in a timely fashion resulting in their administrative dismissals, and that he is solely responsible for that failure, as well as his failure to seek an extension of time to do so. See, NYSCEF Doc. No. 80. Further, plaintiff argues that Defendants failed to make a motion to vacate a default Decision and Order, entered on May 28, 2019, and/or perfect an appeal, because Defendant Gumenick admitted that he knew that his mental illness prevented him from properly
pursuing plaintiff’s appeal. Id.”

Walsam 316, LLC v Thompson & Knight LLP 2023 NY Slip Op 32693(U) August 2, 2023
Supreme Court, New York County Docket Number: Index No. 156653/2022 Judge: Dakota D. Ramseur provides a detailed analysis of the first two of three elements of legal malpractice: departure from good practice and the proximate cause result of that departure.

“By Decision and Order dated October 18, 2019, this Court granted the residential tenants summary judgment pursuant to their revised, HSTPA-inclusive damages calculation against 316 Bowery and Walsam. 2 (See NYSCEF index no. 158541/2013, doc. no. 705.) And on November 4, 2019, the Court entered judgment against these defendants,jointly and severally, for $2,081,539.92 (exclusive of attorneys’ fees). After, counsel for Walsam ultimately recommended they settle the matter with the tenants and 316 Bowery, which they did. According to the parties’ settlement agreement, 316 Bowery paid $1,600,000 and Walsam paid $700,000.
On April 2, 2020, approximately two months after Walsam paid the residential tenants,
the Court of Appeals, in Matter of Regina Metro. Co., LLC v New York State Div. of Haus. & Community Renewal (35 NY3d 332, 375 [2020]), reversed Dugan and the line of cases in the First Department that had found HSTPA’ s retroactivity provision constitutional. The Court of Appeals specifically considered how the retroactive provision extended the statute of limitations for treble damages in pending cases and found that the law impermissibly altered the substantive rights by “expand[ing] the scope of owner liability … based on conduct that was inoculated by the old law”. (Id. at 367, 368.) Given the Court of Appeals’ holding, Walsam alleges that, had they not entered into the settle agreement, they might have paid substantially less than the $700,000 they did since the tenants’ damages calculation, as originally submitted to the Court, would not have exceeded approximately $1,010,061.00.”

“Defendants rely on Darby & Darby, P. C. v VSI Int ‘l, Inc (95 NY2d 308 [2000]) and
Mignott v Kreidman (65 AD3d 972 [1st Dept 2009]) to argue that there is no duty to “anticipate that controlling law would be overturned.” (See NYSCEF doc. no. 9 at 17-18, def. memo. of law.) Yet this framing-that Walsam seeks to hold them liable for failing to predict the outcome of Regina-is misleading and does not accurately describe the gravamen of the complaint. Again, Walsam’s allegation is that defendants had a legal duty to advised them that the Court of Appeals was, at the very least, considering the merits of the Regina (and doing so within a short timeframe ), or viewed in a more favorable light, had already indicated a willingness to overturn First Department law. The present circumstances, specifically the concrete possibility of an imminent change in law, are materially different from those in Darby (in which the attorney failed to advise the client of a novel theory of recovery, one that even industry experts had not
fully appreciated) (Darby, 95 NY2d at 313-314), and Mignott (in which the Appellate Division reversed and abrogated its own decision 8 years later) (Mignott, 7 Misc. 3d 1021 [A] at *1, ajf’d 65 AD3d 972).

As to defendants’ second argument, the Court holds that Walsam has not sufficiently pled that it suffered ascertainable damages proximately caused by defendants’ malpractice. Walsam states that “the negligence of defendants was a proximate cause of plaintiff’s damages,” which “include[e] the moneys paid by [Walsam] to settle the overcharge claim, the legal fees paid to defendants, and the legal fees incurred by plaintiffs in continuing litigation concerning rent overcharges.” (NYSCEF doc. no 4 at ,i 101, 103.) Though Walsam does not explicitly state how their damages were cause by defendants’ alleged malpractice, they appear to argue that, had defendants advised that the Court of Appeals was considering Regina, it would not have entered into the settlement agreement for $700,000 and, post-Regina, would have paid less to the residential tenants. (See NYSCEF doc. no. 36 at 23 [“The settlement decision, whether to accept the $2.3 [inclusive of 316 Bowery] lies with the client; the attorney’s duty is to make the client fully aware of the options and the legal landscape.”])4

Yet such speculation on future events and choices are insufficient as a matter of law to
establish the proximate cause element of a malpractice action. (See Phillips-Smith Special Retail Group IL L.P. v Parker Chapin Flattau & Klimpl, L.L.P, 265 AD2d 208,210 [1st Dept 1999].) As defendants point out, irrespective of Regina, Justice Chan had already found 316 Bowery and Walsam liable,jointly and severally, to the residential tenants, who were seeking $1,010,061.60, exclusive of attorneys’ fees. As such, had Walsam become aware of Regina before settling, the universe of choices open to Walsam was still limited. They could have: (1) reached the same settlement agreement (paying $700,000 to avoid a $2.3 million judgment); (2) waited until the Court of Appeals decided Regina (though at no point would it have been certain of a favorable outcome, all the while remaining exposed to the $2.3 million liability; and then, even after the
outcome, still been jointly and severally liable for more than $700,000); or (3) attempted to leverage Regina to settle for less than $700,000 (which would have required 316 Bowery and/or the tenants to accept a less beneficial agreement). Even assuming option (3) to be a non-starter, there is no clear reason why Walsam would have chosen option (2) over (1), especially considering that Walsam has only by implication argued that it was damaged in this manner. The counterfactual scenario described above reveals that Walsam’s allegations as to proximate cause are couched in terms of gross speculation. (See Sherwood Group, Inc. v Dornbush, Mensch, Mandelstam, & Silverman, 191 AD2d 292,294 [1st Dept 1993] [finding that a party’s hypothetical, future conduct, pled in various forms of what “might have” happened, too speculative to demonstrate proximate causation].)”

Casey v Exum 2023 NY Slip Op 04106 Decided on August 2, 2023 Appellate Division, Second Department illustrates the difficult standard in matrimonial legal malpractice cases where the underlying matrimonial was settled. Without relying on the Katebii line of settlement case law, summary judgment was nevertheless granted because it was practically impossible to prove that there would have been a better outcome at trial v. settlement.

“In November 2015, the plaintiff commenced this action against the defendant, her former attorney, to recover damages for legal malpractice and breach of contract arising out of the defendant’s representation of her in a matrimonial action against her former spouse. The plaintiff alleged, inter alia, that, due to the defendant’s malpractice, she agreed to a settlement of the matrimonial action less favorable than that she would have received as a marital distribution after a trial. The defendant moved for summary judgment dismissing the complaint. In an order dated June 2, 2020, the Supreme Court granted the defendant’s motion. The plaintiff appeals. We affirm, albeit on a ground different than that relied upon by the court (see Green v Conciatori, 26 AD3d 410, 410).”

“Here, the defendant established, prima facie, that he was not a proximate cause of the plaintiff’s alleged damages (see Richmond Holdings, LLC v David S. Frankel, P.C., 150 AD3d 1168, 1168; Montero v Cohen, 104 AD3d 654, 655). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s claims that the defendant could have negotiated a more favorable settlement, that her former spouse would have accepted a settlement offer that was more favorable to her, or that she would have received a more favorable outcome at trial had she declined to enter into the settlement are conclusory and speculative (see Katsoris v Bodnar & Milone, LLP, 186 AD3d 1504, 1506; Janker v Silver, Forrester & Lesser, P.C., 135 AD3d 908, 910).”

Maursky v Latham 2023 NY Slip Op 04115 Decided on August 2, 2023 Appellate Division, Second Department seems to be a fair decision, yet doesn’t really say why the court reversed the grant of dismissal. Even in a setting where the attorney admits failing timely to commence the action, the question of “but for” causation has to be addressed by Plaintiff.

“The defendants, a law firm and an attorney, represented the plaintiff in connection with a disability insurance claim. The plaintiff’s disability insurance policy provided, in relevant part, that “[n]o action or suit will be brought to recover under the [policy] . . . unless it is brought within 2 years.” In her complaint, the plaintiff alleged that, “after waiting a number of years and having little communication,” the defendant Christopher D. Latham informed the plaintiff “that he had failed to sue at the appropriate time” and “had missed a crucial deadline necessary in order to maintain the suit.” The plaintiff further alleged that, “[h]ad it not been for the negligence of [the] defendant[s] in failing to meet the statutory deadline, [the] plaintiff would have prevailed in the underlying matter, being able to recover on her disability insurance claim.”

In February 2020, the plaintiff commenced this legal malpractice action. The defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint, submitting the plaintiff’s summons and complaint, the plaintiff’s disability insurance policy, and the insurer’s denial letter dated December 31, 2016 (hereinafter the coverage denial letter). In opposition, the plaintiff submitted, among other things, an affidavit stating, inter alia, that a 2014 motor vehicle accident rendered her “disabled and unable to work,” that she retained the defendants in 2015 to appeal her insurer’s initial denial of disability insurance coverage, that she contacted the defendants multiple times “to discuss the status of [her] case,” and that Latham “assured [her] that he was handling the case effectively” until, in August 2019, Latham allegedly informed the plaintiff that he had “missed the statute of limitations.”

In an order dated June 17, 2020, the Supreme Court granted the defendants’ motion. The plaintiff appeals.”

“Here, the coverage denial letter from the plaintiff’s insurer did not constitute documentary evidence within the intendment of CPLR 3211(a)(1) (see Bonavita v Government Empls. Ins. Co., 185 AD3d 892, 893-894; Minchala v 829 Jefferson, LLC, 177 AD3d 866, 868; cf. Attallah v Milbank, Tweed, Hadley & McCloy, LLP, 168 AD3d 1026, 1028). In any event, the coverage denial letter and the plaintiff’s insurance policy did not utterly refute or conclusively establish a defense to the plaintiff’s claims (see Gruber v Donaldsons, Inc., 201 AD3d 887, 889; County of Westchester v Unity Mech. Corp., 165 AD3d 883, 885; cf. Hirsch v Walder, 201 AD3d 467, 467; Warshaw Burstein Cohen Schlesinger & Kuh, LLP v Longmire, 106 AD3d 536, 537). Moreover, to the extent that the complaint was vague as to the nature of the allegations of legal malpractice and otherwise deficient, the evidence submitted, including the plaintiff’s affidavit, sufficiently remedied any pleading defects and put the defendants on notice of the grounds for her [*2]cause of action alleging legal malpractice (see Lopez v Lozner & Mastropietro, P.C., 166 AD3d at 873; Harris v Barbera, 96 AD3d 904, 906; cf. Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1506).”

Matter of Blatt 2023 NY Slip Op 04120 Decided on August 2, 2023 Appellate Division, Second Department Per Curiam is both a common and unusual attorney story. It is common in that attorneys are often disbarred (or suspended) for financial wrongs, very often escrow issues where the “escrowed” monies are used by the attorney. It’s a disbarment event, but not that unusual. Independently, this is the attorney in the relatively famous Judiciary Law 487 case line.

What is unusual is that there was a (very uncommon) legal malpractice trial and verdict against the attorneys. This verdict was in 2019. Many years go by without any legal malpractice verdicts (bench or jury) at all.

“The Grievance Committee for the Ninth Judicial District served the respondent with a notice of petition dated July 22, 2020, and a verified petition dated July 16, 2020, containing 12 charges of professional misconduct, and the respondent served and filed a verified answer dated July 28, 2020. Subsequently, the Grievance Committee served and filed a statement of disputed and undisputed facts dated August 17, 2020, which the respondent did not challenge. By decision and order on motion of this Court dated June 2, 2021, the respondent was immediately suspended from the practice of law in the State of New York, pursuant to 22 NYCRR 1240.9(a)(2) and (5), and the matter was referred to the Honorable Sondra M. Miller, as Special Referee, to hear and report. A pre-hearing conference was held on July 21, 2021, and a hearing was conducted on October 19, 2021. The Special Referee filed a report dated December 20, 2021, in which she concluded that the respondent was guilty of serious misconduct and sustained the charges against the respondent. The Grievance Committee now moves to confirm the Special Referee’s report and impose such discipline upon the respondent as the Court deems just and proper. The respondent has not submitted any papers in response nor sought additional time to respond.”

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Betz commenced an action against the respondent, and multiple successor attorneys who served the executor and/or the estate, in the Supreme Court, Westchester County, entitled Debra Betz, Administrator of the Estate of Carmelo Carbone (a/k/a Mel Carbone ) v Arnold Blatt, et al. , Index No. 58938/2011, asserting causes of action to recover damages for legal malpractice, aiding and abetting fraud, and violations of Judiciary Law § 487. Only the respondent proceeded to trial.

After a nonjury trial, in a decision and order dated April 29, 2019, the Honorable Gerald E. Loehr found, inter alia, that the respondent: (a) failed to use a written retainer agreement with the executor; (b) negligently failed to carry out his obligations as spelled out in demand letters [*3]sent to him from the beneficiaries’ counsel; (c) failed to counsel or control the executor with respect to the dissolution of CRF, Inc., thereby allowing the executor to continue to operate the corporation and generate fictitious bills and incur additional operating costs, without any oversight, solely for the executor’s benefit and the compensation of the executor’s own children; (d) negligently failed to ensure that the proceeds of the estate’s sale of its real properties were segregated into a separate estate account, despite a request by the beneficiaries that he do so, thereby enabling the executor to appropriate those monies for the executor’s own purposes; (e) overlooked the executor’s actions, even though he knew that the executor had not been properly marshaling the estate’s assets or preserving them for distribution to the beneficiaries, as well as that the executor was continuing to operate CRF, Inc., for the benefit of himself and his own children, who were being paid for fictitious services out of estate funds; (f) failed to exercise the degree of skill required of an attorney advising the estate when the executor’s own daughter was hired to perform an accounting for the estate, even though the respondent recognized that the accounting she performed “was terrible” on its face; (g) failed to properly assist in the administration of the estate and oversee the executor’s actions, thereby facilitating the executor’s self-dealing, waste, and substantial depletion of the estate; and (h) allowed the case to evolve beyond his ability to handle it on his own, without calling in a competent attorney to assist him, or moving to withdraw from the representation, while continuing to hold himself out as the estate’s attorney and to make checks payable to the executor, even though the respondent knew the executor was engaging in self-dealing. Justice Loehr also found: (i) that even after the executor’s powers were suspended, the respondent continued to assist the suspended executor and his son with preparing and filing approximately $1,137,500 in liens against certain properties to insulate them from recovery by the estate; (j) that the respondent allowed approximately $1,500,000 in proceeds from the sale of the Farm to be wired to the account of CRF, Inc., rather than depositing these proceeds into an estate account; (k) that all the foregoing was exacerbated, aided, and abetted by the respondent’s failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (l) that the respondent’s breach of these duties was the proximate cause of the plaintiff’s damages.

Justice Loehr concluded that the respondent negligently performed his duties and breached his fiduciary duty to the estate and the beneficiaries resulting in financial damages by the depletion of the estate’s assets, tax penalties for late filing, and an increase in attorney fees charged to the estate.”