Gopstein v Bellinson Law, LLC 2024 NY Slip Op 02592 Decided on May 09, 2024
Appellate Division, First Department is the curious case of a successful attorney-pro-se plaintiff who settled three claims in a row and then went on to sue the attorney who settled all three claims.

“In this legal malpractice action, plaintiff, an attorney acting pro se, alleges that defendants Bellinson Law, LLC, and Robert J. Bellinson (together Bellinson) negligently advised plaintiff to settle a legal malpractice action he commenced against his former attorney, Steven J. Pepperman. Pepperman initially represented plaintiff in a personal injury action. Unhappy with the results of a summary judgment motion, plaintiff replaced Pepperman with Bellinson in the personal injury action. Bellinson settled the personal injury action on plaintiff’s behalf. Afterward, plaintiff sued Pepperman for legal malpractice. Bellinson subsequently settled both the Pepperman legal malpractice action and Pepperman’s claim for legal fees in the personal injury action.

The court properly dismissed plaintiff’s claim pursuant to CPLR 3211(a)(7) because he failed to state a cause of action (Leon v Martinez, 84 NY2d 83, 87 [1994]). In order to survive a motion to dismiss, a plaintiff’s complaint in an action for legal malpractice must show that “but for counsel’s alleged malpractice, the plaintiff would not have sustained some actual ascertainable damages” (Pellegrino v File, 291 AD2d 60, 63 [1st Dept 2002], lv denied 98 NY2d 606 [2002]). Moreover, speculative or conclusory damages cannot be the basis of a malpractice claim (see id.).

Here, plaintiff’s allegation that Bellinson’s advice denied him the full value of his malpractice suit against Pepperman was “purely conclusory” (Murray Hill Invs. v Parker Chapin Flattau & Klimpl, LLP, 305 AD2d 228, 229 [1st Dept 2003]). Plaintiff’s complaint lacked any factual allegations to support his conclusion that he “would have succeeded” in achieving a better result in the personal injury action but for Pepperman’s negligence, and that he would have proved legal malpractice against Pepperman but for defendants’ advice (Pellegrino, 291 AD2d at 63). Additionally, plaintiff’s damages were speculative as he provided no basis for his calculations (see id.Zarin v Reid & Priest, 184 AD2d 385, 387-388 [1st Dept 1992]).”

Salamone v Deily & Glastetter, LLP 2024 NY Slip Op 31569(U) May 3, 2024
Supreme Court, New York County Docket Number: Index No. 160104/2022
Judge: Shlomo S. Hagler is a complicated legal malpractice case arising from a $2 Million dollar demand note, sale of Apple stock, questions of usury and a few appellate decisions. In sum, Plaintiff got his loan back, failed to get a bonus on the loan and was determined not to have a good legal malpractice claim.

“Plaintiff engaged defendants to provide counseling, advice and drafting services in connection with a loan and subsequent forbearance agreement entered into between plaintiff and non-parties EIP Global Fund LLC (“EIP”) and Sridhar Chityala (“Sridhar”) (the “Non-Party Borrowers”).

On or about October 10, 2019, non-party Sridhar approached plaintiff and requested a 30-day loan of $5 million dollars (NYSCEF Doc. No. 1 [complaint],, 11). 1 After negotiations, plaintiff agreed to loan non-party Sridhar and his company EIP, $2 million by liquidating a portion of his stock in Apple, Inc. (“Apple”) (id.). Plaintiff engaged defendants to provide professional services in connection with said loan and asked defendants to draft a loan in the form of a Demand Note. The Demand Note provided that the Non-Party Borrowers would pay plaintiff the $2 million on demand or within thirty days, in addition to interest at a rate of ten percent per annum (id., ,r, 17-18). The Demand Note was executed on October 11, 2019 and plaintiff wired the funds to the Non-Party Borrowers on that day (id.,, 18).
The Non-Party Borrowers failed to pay back the Demand Note within the required thirty
days (id.,, 19). After numerous discussions between plaintiff and the Non-Party Borrowers, plaintiff agreed to not immediately file suit to collect on the loan and to provide the Non-Party Borrowers with additional time to repay the Demand Note (id., ,r 20). In connection therewith, plaintiff extended the deadline to repay the loan to December 17, 2019. The Non-Party Borrowers also agreed to “pay [p ]laintiff an additional $300,000 to compensate him [plaintiff] for the lost opportunity damages as a result of not being able to repurchase the Apple stock [plaintiff] liquidated to fund the 30-day loan” (id). Defendants counseled plaintiff to execute a forbearance agreement which included an increased interest rate of twenty per cent per annum, and the $300,000 which was referred to in the agreement as a Forbearance Fee (id., ,r 23).2

“Despite due demand, and repeated promises and assurances,” the Non-Party Borrowers failed to pay plaintiff the amounts due and owing by the extended deadline (id., , 26). As a result, plaintiff commenced an action on January 16, 2020 against the Non-Party Borrowers under Index Number 6503 7 4/2020 asserting six causes of action (“Borrower Litigation”) (id., ,27). On February 18, 2020, the Non-Party Borrowers filed a pre-answer motion to dismiss in the Borrower Litigation on grounds, inter alia that the Forbearance Fee was usurious rendering the Forbearance Agreement void (id,~ 28)””

“Giving plaintiff the benefit of every possible favorable inference, the complaint fails to
state a cause of action for legal malpractice. To begin, “an attorney is obligated to know the law relating to the matter for which he/she is representing a client and it is the attorney’s duty, if he has not knowledge of the statutes, to inform himself, for, like any artisan, by undertaking the work, he represents that he is capable of performing it in a skillful manner” (Fielding v Kupferman, 65 AD3d 437,440 [1st Dept 2009] [internal quotation marks and citations omitted]). Here, plaintiff complains that defendants failed to exercise the ordinary, reasonable skill and knowledge commonly possessed by a member of the legal community by drafting a facially usurious Forbearance Agreement (NYSCEF Doc No. 1 [complaint],~ 39). Plaintiff alleges further that “but for” defendants’ deficient drafting of said agreement, plaintiff would have immediately pursued his rights under the Demand Note and in addition would have separately
documented an agreement to compensate him for his lost opportunity to immediately repurchase Apple stock. Plaintiff argues that the part of the Forbearance Agreement that provided for a Forbearance Fee was intended to provide such reimbursement.”

“With respect to plaintiffs allegation of damages, the complaint alleges that he sustained damages because he (i) would have enforced his rights under the Demand Note; (ii) would have separately documented an agreement to compensate plaintiff for his lost opportunity, (iii) and incurred legal fees in minimizing the damage caused by the usurious Forbearance Agreement (NYSCEF Doc. No. 1 [complaint], ,r 40).

As to damages incurred on collecting on the Demand Note, plaintiff suffered no damages. On November 9, 2020, Justice Sherwood entered a Judgment in plaintiffs favor in the amount of $2,262,702.44 representing the total amount of the principal the Non-Party Borrowers owed to plaintiff under the Demand Note ($2 million), plus interest and attorneys’ fees and costs (NYSCEF Doc. No. 8). In addition, a Satisfaction of Judgment was filed on February 24,2021 stating that the Judgment was paid in full and the sum of $0.00 remains unpaid (NYSCEF Doc. No. 9).”

What could be more complicated than explaining why an attorney’s errors doomed a generic drug defect products liability case, based upon medical malpractice in the prescribing of the generic allegedly defective drug in which there were nationwide class actions and federal preemption claims?

Schwartz v Oshman & Mirisola, LLP 2024 NY Slip Op 31592(U) May 3, 2024 Supreme Court, New York County Docket Number: Index No. 155780/2023 Judge: Dakota D. Ramseur was dismissed, in part, for failure to explain it all in a way that convinced the judge.

“In or around 2001, Dr. Steven Rubin started prescribing plaintiff Reglan (the brand drug of metoclopramide) or a generic version of the drug manufactured by PLIVA, Inc. to treat her gastroparesis. Metoclopramide was first approved by the Food and Drug Administration (“FDA”) in 1980 pursuant to a New Drug Application (“NDA”) as a “short-term (4-12 weeks) therapy for adults with symptomatic documented gastroesophageal reflux who fail to respond to conventional therapy.” (See NYSCEF doc. no. 15, 1987 Physicians’ Desk Reference for Reglan; NYSCEF doc. no. 17 at 26, Dr. David Feigal Expert Report dated 10/11/2019.) In 1988, the FDA approved PLIVA’s Abbreviated New Drug Application (“ANDA”) to manufacture a generic metoclopramide. To be approved pursuant to an ANDA, the generic drug must be bioequivalent to the FDA-approved brand drug, the administration, dosage form, and strength of the generic must be identical, and the information contained on its label must be the same. (NYSCEF doc.
no. 17 at 16.)

Since Reglan was first approved by the FDA, its brand label/package insert has contained a warning that using metoclopramide could cause tardive dyskinesis, a neurological disorder that is potentially irreversible and causes the individual to suffer involuntary, repetitive movements. Specifically, the label warned that “[b]oth the risk of developing the syndrome and the likelihood that it will become irreversible are believed to increase with the duration of treatment and the total cumulative dose.” (NYSCEF doc. no. 15.) In addition, the section of the label entitled “Doses and Administration” warns that “[t]herapy longer than 12 weeks has not been evaluated and cannot be recommended.” (Id.) There is no dispute that PLIVA’s generic drug label contained these two warnings throughout the entire period of time that plaintiff was taking this
medication. In 2004, the FDA approved a change in the Reglan label as applied for by the owner of its NDA. The language added to the “Indication and Usage” section states, “the use of Reglan tablets is recommended for adults only. Therapy should not exceed 12 weeks in duration.” (NYSCEF doc. no. 17 at 24.) Similar language was also included in the “Doses and Administration” section. Even though the changes were made to Reglan, PLIVA did not update its generic drug’s label/package insert to reflect the FDA-approved changes.

Litigation Against Metoclopramide Makers
In 2009, the FDA required both Reglan and generic metoclopramide manufacturers to
include a “black box warning” that the use of the drug could cause tardive dyskinesia if taken for longer than 12 weeks. Thereafter, plaintiffs throughout the country brought class action suits in various state courts, alleging that the makers metoclopramide had undersold the risk of significant neurological disorders in taking metoproclamide. In Pliva, Inc. v Mensing (564 U.S. 604 [2011]), the Supreme Court found that these plaintiffs’ state-law claims against generic manufacturers were preempted by federal law under the Supremacy Clause to the extent that state-law failure-to-warn statutes required generic drugs to provide more stringent, safer warning labels. To the Court, since generic drug manufactures are required by FDA regulations to maintain identical labels as their brand counterparts, it would be impossible for them to change its label (even to strengthen a warning) in response to state-law tort suits. (Id. at 618-619.) In In
Re Reglan Litigation, the New Jersey Supreme Court found that the class claims of nearly 1,000 users of generic metoclopramide manufacturers were not preempted as in Mensing because the generic manufacturers like PLIVA had not, in fact, matched their labels to that of the brand. (226 N.J. 315, 335-338 [2016].)


The Underlying Claims and Present Action
In her complaint, plaintiff alleges that, in 2009, she approached defendants to represent her in litigation against the makers of Reglan/Metoclopramide after she started suffering from neurological disorders including tardive dyskinesis due to her longtime use of the drug from 2001 to 2009. (NYSCEF doc. no. 1 at ¶ 10, 14; NYSCEF doc. no. 21, plaintiff’s medication history.) She alleges that she joined a class action against both Reglan and the generic manufacturers. As a class member, she acknowledges that she was a part of a global settlement against the brand maker of Reglan (NYSCEF doc. no. 1 at ¶¶ 25,75, 115) but alleges that she was pressured by defendants into opting out of the settlement with PLIVA—one of only eight individuals (out of approximately 6,000) to do so (id. at ¶ 26-28.) In her affidavit, she avers that
defendants informed her they would no longer represent her if she did not opt out and that they would have a chance of a greater recovery if she did. (NYSCEF doc. no. 33 at ¶ 4, Schwartz affidavit.)”

“In the instant action, plaintiff alleges that defendants committed malpractice in failing to oppose PLIVA’s summary judgment motion (NYSCEF doc. no. 1 at ¶ 47, 51, 86, 96, and 124) and to timely file a motion to vacate (id. at ¶ 42, 48, 87, 97, 125). In addition, in her opposition to this motion, plaintiff indicates that, if defendants were aware that she could not win her case against PLIVA (the position that defendant’s take in this motion), then it was also malpractice for them to advise her to opt out of the global settlement against PLIVA in the first place. (See NYSCEF doc. no. 27 at ¶ 5-7.)

In this motion sequence, defendants move to dismiss plaintiff’s complaint pursuant to
CPLR 3211 (a) (1) and (a) (7), arguing that plaintiff cannot establish that their conduct was the proximate cause of any loss she sustained since, in their view, she cannot demonstrate—for numerous reasons—that she would have obtained a favorable judgment against PLIVA in the underlying action. Plaintiff’s opposition, as will be discussed below, does little if anything to refute this argument; instead, plaintiff essentially contends that it is premature to dismiss her claim pre-answer since no discovery has been taken and plaintiff is allegedly not in possession of her entire file from defendants. (See NYSCEF doc. no. 27 at ¶ 37, 50, 54, 55.) Since this
argument has no merit, the Court must dismiss plaintiff’s complaint.”

Kidron v Suris & Assoc., P.C. 2024 NY Slip Op 02503 Decided on May 07, 2024
Appellate Division, First Department reminds us that there are vast differences between the law in the First Department and the law in the Second Department, both of which are in the State of New York. Why this could be is a marvelous mystery. In the First Department it is Defendants’ burden to demonstrate uncollectability of a judgment as a defense; in the Second Department it is Plaintiff’s burden.

“Judgment, Supreme Court, Bronx County (Lucindo Suarez, J.), entered March 30, 2023, dismissing plaintiff’s legal malpractice action in its entirety, unanimously reversed, on the law, with costs, the judgment vacated, the complaint reinstated, plaintiff’s cross-motion for leave to amend granted, and the matter remanded for further proceedings. Appeal from order, same court and Justice, entered March 28, 2023, which granted the motion of defendant, Suris & Associates, P.C. for summary judgment and implicitly denied plaintiff’s cross-motion for leave to amend, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

“To recover damages for legal malpractice, the plaintiff must establish that the attorney (1) failed to exercise that degree of care, skill and diligence commonly possessed and exercised by a member of the legal community and (2) that such negligence was a proximate cause of the loss in question” (Ackerman v Nathan L. Dembin & Assoc., P.C., 194 AD3d 512, 513 [1st Dept 2021] [internal quotation marks omitted]). Defendant sought summary judgment exclusively on causation grounds—namely that plaintiff could not show that, “but for the attorney’s negligence, the plaintiff would have succeeded on the merits of the underlying action” (Kivo v Louis F. Burke, P.C., 187 AD3d 503, 503 [1st Dept 2020] [internal quotation marks omitted]).

Issues of fact as to causation preclude summary judgment on plaintiff’s malpractice claim arising from defendant’s failure to pursue litigation against plaintiff’s insurance carriers within the policies’ two-year limitations periods. Plaintiff’s policies with Granite State Insurance Company and Great Northern Insurance Company covered property damage but excluded loss caused by faulty workmanship. Plaintiff does not dispute that much of the damage to his home resulted from negligent workmanship by his contractors, Sun Dragon Industries and Sandro Darsin. However, plaintiff submitted evidence that his contractors’ work caused leaks in the plumbing, which in turn caused extensive water damage. This evidence created an issue of fact whether the water damage would be covered under the policies’ “ensuing loss” exceptions to the poor workmanship exclusions, as “collateral or subsequent damage” unrelated to the excluded peril (Narob Dev. Corp. v Insurance Co. of N. Am., 219 AD2d 454, 454 [1st Dept 1995], lv denied 87 NY2d 804 [1995]; see Ewald v Erie Ins. Co. of N.Y., 214 AD3d 1382, 1385 [4th Dept 2023]). Although there is evidence suggesting the Great Northern policy’s dwelling coverage was not in effect at the time of the damage, the fact that Great Northern disclaimed coverage by invoking the policy’s poor workmanship exclusion, rather than the non-existence of dwelling coverage on the premises, creates a dispute of fact on that issue.

Issues of fact as to causation likewise preclude summary judgment on plaintiff’s claim arising from defendant’s failure to complete proper service on Darsin [*2]in the underlying tort and contract litigation. Darsin was dismissed from the underlying action for improper service, but plaintiff succeeded in securing a judgment against Sun Dragon on default. The unexecuted construction contract in the record lists “Sandro Darsin c/o Sun Dragon Industries” as a party, and Sun Dragon’s insurance carrier identified Darsin as the business’s “principal and owner.” Plaintiff’s testimony that Darsin “had no [financial] means whatsoever” is insufficient to defeat causation, as “the ultimate collectability of any judgment that could have been obtained in the underlying action is not an element necessary to establish” a legal malpractice claim (Lindenman v Kreitzer, 7 AD3d 30, 31 [1st Dept 2004]).”

Scott v Leventhal 2024 NY Slip Op 31543(U) April 30, 2024 Supreme Court, New York County Docket Number: Index No. 656211/2017 Judge: Debra A. James reveals a couple of sad truths about legal malpractice litigation. First, there are many twists and turns in the analysis of claims, especially claims that were never filed by the defendant attorney, and how the legal malpractice bar takes on cases and then tries to exit.

“This court previously dismissed plaintiff’s causes of action for breach of contract and breach of fiduciary duty, holding that such causes of action were duplicative of
plaintiff’s legal malpractice cause of action. See NYSCEF Document Number 286. Such holdings are law of the case. See Glynwill Investments, NV v Shearson Lehman Hutton, Inc, 216 AD2d 78, 79 (1 st Dept 1995)

Plaintiff’s recasting the Third Amended Complaint to remove the legal malpractice cause of action and substitute and reassert another breach of contract claim (first cause of action) does not overcome such prior holding with respect to the breach of contract claim, as plaintiff has still not come forward with prima facie proof of any breach of contract by defendants, given, as found earlier, the provision of the retainer agreement dated September 8, 2015, that defendants could withdraw as counsel at any time before any lawsuit was commenced, and, in fact defendants never commenced a lawsuit on behalf of plaintiff’s decedent. Nor does plaintiff’s assertion about defendants’ alleged breach of the implied covenant of good faith and fair dealing rescue her breach of contract cause of action.

With respect to the claim of breach of fiduciary duty (second cause of action), such cause of action sounds in legal malpractice, and such legal practice claim was not previously dismissed by this court. In that regard, legal precedent holds
that

“In the attorney liability context, the breach of
fiduciary duty claim is governed by the same standard
as a legal malpractice claim. Accordingly, to 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 AD3d 70, 75-76 (1 st
Dept 2018) (citations omitted).

Plaintiff comes forward with prima facie evidence that “but for” the failure of defendants to commence a lawsuit within the statute of limitations for battery
(one year after the alleged August 15, 2016 battery) or to inform her of such deadline so that she might retain new counsel to commence a timely action, she would have recovered damages for battery in a lawsuit asserting that City Correction Department employees intentionally assaulted and battered her decedent son, causing injury to his testicles. Specifically, plaintiff submits the records of Bellevue Hospital Center that
states that plaintiff’s decedent son was admitted to the hospital on August 16, 2015, with complaints that [prior to admission/11 AM, the day before] defendants’ correction officers “kicked [him] in the balls 3 times”, [and that] “patient noticed significant swelling (‘swollen like a watermelon’)” and that examination in hospital revealed “trauma to scrotum, now swelling and tenderness”. As such evidence raises issues of
fact with respect to plaintiff’s claim of breach of fiduciary duty/legal malpractice, neither summary judgment dismissing such cause of action against defendants nor partial summary judgment of liability in favor of plaintiff is warranted. See Johnson v Suffolk County Police Department, 245 AD2d 340, 341 (2d Dept 1997) .”

“On May 1, 2023, plaintiff’s attorney Richard Pu, Esq., filed a “Notice of Change/Discharge of Attorney and Notice of Appearance”, asserting that plaintiff would proceed prose. (NYSCEF Document Number 426). This court notes that such Notice
is a nullity as plaintiff herself never consented thereto. Such notice is without force and effect as plaintiff, counsel’s client, did not sign such form or acknowledge her signature
before a notary public, as required pursuant to CPLR §321(b) See Garafola v Mayoka, 151 AD3d 1018 (2d Dept 2017). Instead Such such the form appears to have been filled out by counsel.”

Walsam 316 v 316 Bowery Realty Corp. 2024 NY Slip Op 02288 Decided on April 30, 2024 Appellate Division, First Department is the story of a real estate/rent overcharge proceeding between sophisticated commercial entities which, almost incidentally included a legal malpractice claim. Amendment of the legal malpractice claim was denied.

“Order, Supreme Court, New York County (Margaret A. Chan, J.) entered on or about April 8, 2022, which, insofar as appealed from as limited by the briefs, denied the motion of defendant 316 Bowery Realty Corp. (Bowery) for leave to amend its answer to assert new counterclaims seeking reimbursement of amounts contributed to the settlement of a rent overcharge proceeding and for summary judgment dismissing the cause of action for breach of contract (second cause of action), unanimously affirmed, with costs. Order, same court and Justice, entered January 3, 2023, which, to the extent appealable, granted Bowery’s motion for leave to reargue so much of its motion for summary judgment as sought dismissal of the cause of action for breach of contract (second cause of action), and upon reargument, adhered to its prior determination, unanimously affirmed, with costs. Order, same court and Justice, entered on or about May 25, 2023, which denied Bowery’s motion for leave to renew its prior motion for leave to amend its answer to add counterclaims and denied Bowery’s motion to strike plaintiffs’ untimely opposition papers, unanimously affirmed, with costs.

Supreme Court providently denied Bowery’s motion for leave to amend its answer to assert new counterclaims seeking reimbursement from plaintiffs of certain amounts paid by Bowery toward the settlement of a rent overcharge proceeding, as the proposed counterclaims were “palpably insufficient or clearly devoid of merit” (MBIA Ins. Corp. v Greystone & Co., Inc., 74 AD3d 499, 500 [1st Dept 2010]). With respect to the proposed counterclaim titled “money judgment” (the third proposed counterclaim), Bowery failed to plead an underlying claim for the relief, but merely made a conclusory statement of the relief sought (see e.g. Cohen v Cohen, 25 AD3d 363, 363 [1st Dept 2006]). Bowery’s reference to the parties’ reservation of rights in the various settlement agreements is not persuasive because, as Supreme Court noted, a reservation of rights does not create new rights (Dee Cee Assoc. LLC v 44 Beehan Corp., 148 AD3d 636, 640 [1st Dept 2017]), and Bowery could have, but did not, negotiate for an express right to reimbursement.”

“Based on the foregoing, Supreme Court providently denied leave to renew based on the allegations in plaintiffs’ December 19, 2022 amended legal malpractice complaint against its counsel in the overcharge proceeding, as there was no need to resort to extrinsic evidence in interpreting the unambiguous terms of the various agreements (see Ashwood Capital, Inc. v OTG Mgt., Inc., 99 AD3d 1, 7-8 [1st Dept 2012]). The proposed amendments were devoid of merit and thus, the court did not need to consider plaintiffs’ late-filed opposition papers in order to deny renewal. Bowery was not prejudiced by the court’s acceptance of the untimely papers under CPLR 2004, as the court accepted and considered Bowery’s reply (see Sanchez v Steele, 149 AD3d 458, 458 [1st Dept 2017]).”

After reading the competing claims in Cotton v Kiperman 2024 NY Slip Op 31435(U)
April 22, 2024 Supreme Court, Kings County Docket Number: Index No. 515660/2023
Judge: Francois A. Rivera we wonder how Surrogate’s Court came to its conclusion. In any event Supreme Court dismisses on res judicata.

“The complaint alleges the following salient facts, among other2. On March 17, 2021, plaintiffs retained the defendants, RI< Law P.C. and Regina Kiperman as counsel for the purpose of assisting the plaintiffs with certain issues relating to the Estate of Angelina A. Ditaranto. Plaintiffs wanted the defendants to help amend the Letters of Administration by removing any limitations, reverse an illegal transfer of5459,shates of AT&T stock by the former Voluntary Administrator Mary L. Banker held by Computershare’s Corp.; institute a turnover proceeding to recover dividends and interest collected by Mary L Banker over a JO-year period; recover certain assets held in HSBC Bank; and institute an action against TD Bank. Plaintiffs sought to sue TD Bank because it allowed the Medallion Stamp on the transfer documents of the 5459shares of AT&T stock and that allowed for the transfer from the plaintiffs·’ Computershare’s Account into the name of Mary L. Banker. Although the plaintiffs had advised the defendants that Keane Legal Claimant Services (hereinafter KLS) needed to be removed from the turnover as a defendant with Mary L Banker, the defendants kept including KLS on the turnover action. The . defendants· kept billing for the work of revising and reviewing their work on the same turnover document for approximately four months (March through August). The defendants still took another three months to get the turnover and evidence and documentation that plaintiff provided filed with the Court Part of the bills for the first four months listed above were adjusted only to have doubled for the next two months (June & July). For the next year Regina Kiperman and ,staff continued revising, reviewing, and modifying the same documents. The plaintiffs constantly emailed and called reminding Regina Kiperman of these discrepancies only to be ignored for months. The defendants kept charging for the documents and revisions and the defendants did not remove KLS for almost a year. The defendants overcharged for making phone calls. Defendant charged for a petition to amend letters of administration that plaintiff had been asking for; for over a year and a half. When it was completed, it was near the end of the case and no longer needed, but the defendants charged for it anyway. The plaintiff wanted TD & HSBC Bank’s to both he considered in the lawsuit with Computershares and Mary Banker. TD Bank illegally gave Mary Banker the Medallion Stamp. That is why TD Bank had to represent Computershares under an Indemnity agreement. Adding to the problem Bruce Goodman, the attorney for TD Bank, wanted money from the Estate to pay for representation When it was a manager of the Bank that illegally gave the Medallion Stamp for an illegal transfer of the deceased assets that caused this action and the action that plaintiff has been working on sin<::e March 2017.”

The Surrogate order of Judge Graham established the following. Regina
Kiperman, Esq. commenced a miscellaneous proceeding (hereinafter the miscellaneous
proceeding) seeking a deten11ination pursuant to SCPA § 2110, of legal fees, costs and
disbursements incurred in connection with her representation on behalf of the Joseph A, Costello, the Administrator, since her retention on or about March 17, 2021, through through July 2022. The Administrator objected to the attorney’s fees requested. The parties consented to the issues being decided by the Court on their submissions. Judge Graham found the following facts. A review of petitioner’s affirmation of legal services reveals that the firm reviewed the documents presented by the respondent and engaged with discussions with Computershare and counsel for Computershare. Thereafter, the firm filed the petition for turnover of assets and sought a restraining order against Computershare to prevent Computershare from transferring the assets to Mary in her individual capacify. Upon the signing of the order to show cause, the firm served the documents to the interested parties and then engaged in negotiations with Computershare, negotiations with TD Bank, attended multiple Court conferences, conducted conference calls with counsel, and conducted conference calls with respondent explaining the next steps in the matter, including the possibility of filing a judicial accounting. In respondent1 s objections, respondent alleges “overbilling” and that the firm worked on the 11 same turnover document for approx. four months (March thru Aug) and still took another three months” to file the documents with the Court. However, the Finn’s hours indicate that the Firm was drafting the petition on or about May 11, 2021, and the petition, along with the attorney affirmation and order to show cause were filed with the Court on or about July 21,.2021. This was a complex petition, which included multiple unauthorized stock transfers and eight years·. of improper dividends.”

“The Court has carefully reviewed the. services performed which included
drafting the petition for turnover of estate assets, extensive contact with
attorneys and attending multiple court conferences. The petitioner’s Firm was
able to settle the matter by stipulation and the respondent collected over 5,549
shares of ATT stocks,. 1,322 shares of Warner Brothers stock, and the unpaid
dividend checks that Computershare had bee ·accumulating. In addition, the
Court order directed that Mary return misappropriated funds to the Estate, and
if she failed to do so, judgment would be entered against Mary. The Court
notes the complexity of this matter, with the Voluntary Letters of’
Administration initially being issued to Mary 2011 and multiple unauthorized
transactions taking place since that time. It is notable that petitioner succeeded
in turning over the misappropriated assets from Mary to the Estate and raising
the limitations in the Letters from $10,000 to $200,000; this is primarily what
the petitioner was hired to accomplish. I tis therefore without question that
petitioners firm has ably represented the Administrator and increased the
value of the Estate.”

Halperin v Held & Hines, LLP 2024 NY Slip Op 31415(U) April 12, 2024
Supreme Court, New York County Docket Number: Index No. 652124/2019
Judge: Andrea Masley is another in a long line of New York legal malpractice cases arising from real estate troubles. Here, damages were deemed too speculative to proceed on the case.

“This matter arises from plaintiff Stephen R. Halperin3 and Jamie Berman
Halperin’s purchase of a one-bedroom apartment located at 32 West 20th Street,
Apartment 8S, New York, New York (Apartment) for $2,530,000. (NYSCEF 279,
Storgion4 Appraisal Report at 3-4;5 NYSCEF 278, Contract ,m 1.1.1, 1.16.) On March 9,
2017, the Halperins executed a contract of sale for the Apartment. (NYSCEF 278,
Contract.) The transaction closed on May 24, 2017. (NYSCEF 438, Response to Rule
19-a Statement ,I 2.) The HH defendants represented the Halperins in connection with
the transaction. ( See NYSCEF 278, Contract ,I 1.2.2; NYSCEF 273, Held’s 2/8/2017
email to Stephen.) The Douglas Elliman Defendants were the Halperins’ broker.
(NYSCEF 278, Contract ,I 1.5; NYSCEF 246, tr. At 22:5-11 [Stephen Depa].) Douglas
Elliman, by nonparties Matthew George and Michael Moran, was also the broker of the
sellers, Stephan Van Dam and Gail Pellett. (NYSCEF 278, Contract ,I,I 1.1.1, 1.5;
NYSCEF 248, tr. at 178:20-179:3 [Van Dam Depa].)”

“The premises adjacent to the Building7 are owned by Panasia Estate Inc.
(Panasia) and are known as 31-33 West 19th Street, Manhattan. (NYSCEF 383,
Mehta8 aff ,i 1; NYSCEF 424, 3/11/2019 32 West 20th Street Board’s Letter.) On March
11, 2019, the Building’s Board of Directors notified the Halperins that “[l]ast week we
received a letter from Panasia’s lawyers informing us that Panasia intended to construct
the two-story addition, with the penthouse …. Their construction … necessitates the
elimination of the lot line windows on the east side of the 7th and 8th floors.” (NYSCEF
424, 3/11/2019 Board’s Letter.) The Apartment is located on the eighth floor and hasthree easterly windows. (See NYSCEF 339, Briguet drawings at 3.) Thus, the
Apartment would be affected by Panasia’s construction. This action followed.
(NYSCEF 1, Complaint.)”

“On June 1, 2020, the Halperins filed an amended complaint alleging claims for
negligence and professional malpractice against the HH Defendants (third cause of
action), fraudulent misrepresentation (fourth cause of action), fraudulent concealment
(fifth cause of action), negligent misrepresentation (sixth cause of action), negligence
and professional malpractice (seventh cause of action), gross negligence (eighth cause
of action), and breach of fiduciary duty (ninth cause of action) against the Elliman
Defendants, and negligence and professional malpractice (tenth cause of action)
against Briguet.”

“”An action for legal malpractice requires proof of three elements: ( 1) that the
attorney was negligent; (2) that such negligence was a proximate cause of plaintiff’s
loss; and (3) proof of actual damages.” (Brooks v Lewin, 21 AD3d 731, 734 [1st Dept
2005] [citation omitted], Iv denied 6 NY3d 713 [2006].) The third element requires proof
of “actual and ascertainable” damages that are “clearly calculable.” (Gallet, Dreyer &
Berkey, LLP v Basile, 141 AD3d 405, 406 [1st Dept 2016] [internal quotation marks and
citation omitted].) A plaintiff cannot recover in tort for “for potential harm in the absence of actual injury.” (Niagara Mohawk Power Corp. v Ferranti-Packard Transformers, 201 AD2d 902, 903 [4th Dept 1994], Iv dismissed 83 NY2d 953 [1994].) Indeed, “it is upon injury that a legal right to relief arises in a tort action.” (Ackerman v Price Waterhouse, 84 NY2d 535, 541 [1994] [citations omitted].) “The threat of future harm, not yet realized, is not enough.” (/GEN, Inc. v White, 250 AD2d 463,465 [1st Dept 1998] [ citation omitted].)

The HH Defendants have made a prima facie showing of their entitlement to
judgment as a matter of law dismissing the amended complaint by submitting proof that the Halperins sustained no actual damages. In support of their motion, the HH
defendants proffer Jamie’s deposition testimony where she states that the lot-line
windows have not been blocked. (NYSCEF 247, tr. at 170:20-22 [Jamie depo].)
In response, the Halperins fail to raise an issue of fact as they submit no proof
that they sustained actual damages due to losing the lot-line windows. Any damages
that the Halperins may sustain in the future if the lot-line windows are lost are
speculative, and thus, cannot support legal malpractice claim as a matter of law.
(/GEN, Inc., 250 AD2d at 465; see also Gallet, Dreyer & Berkey, LLP, 141 AD3d at 406

[granting summary judgment dismissing a legal malpractice claim “where the asserted
damages are vague, unclear, or speculative” (citation omitted)].) Plaintiffs concede that
they have not lost the lot-line windows. (NYSCEF 438, Response to Rule 19-a
Statement ,i 10; NYSCEF 247, tr. At 170:20-22 [Jamie depo].) The mere fact that
Panasia spent $4 million dollars towards vertical expansion does not support the
Halperins’ claim of actual damages. (See NYSCEF 253, tr. at 39:16-41 :1 [Mehta
depo].)”

In Apollo Elec., Inc. v Aman Devs. LLC 2023 NY Slip Op 33466(U)
October 5, 2023 Supreme Court, New York County Docket Number: Index No. 155250/2019 Judge Debra A. James surveys the difference between breach of contract by an architect and malpractice by an architect.

The difference can have profound effects on the statute of limitations as well as on the calculation of damages.

” As for the first cause of action sounding in breach of contract against second third-party defendant AT Architects of the second third-party complaint, this court agrees with second third-party plaintiff that his allegations therein sound in breach of contract and not professional malpractice. As in Children’s Corner Learning Ctr v A Miranda Contr. Corp (64 AD3d 318, 324 [1 st Dept 2009]), “the damages sought [by second third-party plaintiff at bar] are economic only.” Second third-party plaintiff does not seek, for example, “the cost to repair the defects or the difference in value between a properly
constructed structure and that which was in fact built”, which is the measure of damages for architectural malpractice (Brushton-Moira Cent. School Dist. v Thomas Assoc., 91 NY2d 256, 262 [1998]). On that basis, second third party plaintiff is correct that the six-year statute of limitations for breach of contract (CPLR § 213) applies to such claim. As the second third party action was commenced on September 15, 2022, any claims against second third-party defendant that accrued before September 14, 2016, are untimely. However, this court agrees with second third party plaintiff that second third-party defendant has not irrefutably established the accrual date of
such claim, i.e., the date of completion of the actual physical work (see State v Lundin, 60 NY2d 987 [1983]). As contended by second third-party plaintiff, this court holds that the invoice dated April 24, 2017, proffered by second third party defendant, does not irrefutably establish the date on which second thirdparty defendant fulfilled its contractual obligations (see Reiver v Burkhart Wexler & Hirschberg, LLP, 73 AD3d 1149, 1150- 1151 [2nd Dept 2010] [invoices sent by defendant law firm to plaintiff did not constitute irrefutable documentary evidence that defeated plaintiff’s claim of breach of fiduciary duty by charge of excessive legal fees]).”

Incorporated Vil. of Freeport v Albrecht, Viggiano, Zurich & Co., P.C. 2024 NY Slip Op 01800 Decided on April 3, 2024 Appellate Division, Second Department is the one-in-a-million summary judgment for plaintiff in a professional negligence case.

“The plaintiff commenced this action, inter alia, to recover damages for accounting malpractice against the defendants, Albrecht, Viggiano, Zurich & Company, P.C., Robert McGrath, and Patrick Bryan (hereinafter collectively the defendants), an accounting firm and individual accountants at that firm. The defendants provided the plaintiff with certain financial services for more than 10 years and were retained to audit the plaintiff’s financial statements for the year ending February 28, 2013 (hereinafter the 2013 audit). As a result of alleged material errors in the 2013 audit, the plaintiff received a negative outlook from a company providing, among other things, opinions of the relative future credit risk of entities, Moody’s Investor Service (hereinafter Moody’s), which caused the plaintiff to incur increased borrowing costs, hire additional staff to correct the errors, and sell certain property in order to receive an improved Moody’s rating. Following the completion of discovery, the defendants moved for summary judgment dismissing the second amended complaint. The plaintiff opposed the motion and cross-moved, inter alia, for summary judgment on the issue of liability on the first cause of action, alleging accounting malpractice. By order entered June 2, 2020, the Supreme Court, among other things, denied the defendants’ motion for summary judgment dismissing the second amended complaint and granted that branch of the plaintiff’s cross-motion which was for summary judgment on the issue of liability on the first cause [*2]of action. The defendants appeal.”

However, the Supreme Court should have granted those branches of the defendants’ motion which were for summary judgment dismissing the third, fourth, and sixth causes of action. The third and fourth causes of action, alleging fraud and conspiracy to commit fraud, respectively, are duplicative of the accounting malpractice and breach of contract causes of action, since they arise from the same facts as those underlying the accounting malpractice and breach of contract causes of action and do not allege distinct damages (see Mackey Reed Elec., Inc. v Morrone & Assoc., P.C., 125 AD3d 822, 823; Biberaj v Acocella, 120 AD3d 1285, 1287; see also Goldner v Possilico, 7 AD3d 666, 669). The sixth cause of action, alleging unjust enrichment, is similarly duplicative (see Philip S. Schwartzman, Inc. v Pliskin, Rubano, Baum & Vitulli, 215 AD3d 699, 702). Further, the unjust enrichment cause of action is subject to dismissal because the conduct at issue was governed by a written contract. As a general rule, the existence of a valid and enforceable contract governing a particular subject matter precludes recovery in quasi-contract on a theory of unjust enrichment for events arising out of the same subject matter (see Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 572; Yenrab, Inc. v 794 Linden Realty, LLC, 68 AD3d 755, 758; see also Donenfeld v Brilliant Tech. Corp., 96 AD3d 616, 617).

The Supreme Court properly granted that branch of the plaintiff’s cross-motion which was for summary judgment on the issue of liability on the first cause of action, alleging accounting malpractice. “In order to succeed on a claim for accounting malpractice, a plaintiff must demonstrate a departure from accepted standards of practice and that the departure was a proximate cause of injury” (Alskom Realty, LLC v Baranik, 189 AD3d 745, 747; see Kristina Denise Enters., Inc. v Arnold, 41 AD3d 788, 788). Although summary judgment is not appropriate in a malpractice action where the parties submit conflicting expert opinions, “expert opinions that are conclusory, speculative, or unsupported by the record are insufficient to raise triable issues of fact” (Longhi v Lewit, 187 AD3d 873, 877 [internal quotation marks omitted]; see Lowe v Japal, 170 AD3d 701, 702). “In order not to be considered speculative or conclusory, expert opinions in opposition should address specific assertions made by the movant’s experts, setting forth an explanation of the reasoning and relying on specifically cited evidence in the record” (Longhi v Lewit, 187 AD3d at 878 [internal quotation marks omitted]; Lowe v Japal, 170 AD3d at 703).

Here, the plaintiff satisfied its prima facie burden by submitting, among other things, the affidavit and report of an accounting expert, Matt Rogers. Specifically, Rogers opined that the defendants departed from the generally accepted auditing standards, generally accepted government auditing standards, and accepted standards of practice during the 2013 audit by failing to date and perform subsequent events procedures with respect to the second and third reissued versions of their audit report; failing to evaluate, audit evidence, and document support relating to the PILOT receivable and related revenue; and failing to perform procedures, obtain sufficient evidence, and [*3]prepare documentation relating to accounts payable. In opposition, the defendants failed to raise a triable issue of fact. The report of the defendants’ accounting expert, Vincent J. Love, did not address the specific assertions made by Rogers (see Longhi v Lewit, 187 AD3d at 878).”