We’ve always thought that a retainer agreement between an attorney and a client had some meaning, real meaning.  Emery Celli Brinckerhoff & Abady, LLP v Rose   2013 NY Slip Op 07428 Decided on November 12, 2013  Appellate Division, First Department  disabuses us of that notion, and has two other interesting things about it.  It’s the first appeal we’ve seen from the Law office of Richard Lerner, long an appellate star with Wilson Elser.  The decision also sets forth that an "account stated" cannot be successful if the fees claimed are "intertwined" with the asserted malpractice.
 

"Plaintiff established its entitlement to judgment as a matter of law on its claim for an account stated "by showing that its client received, retained without objection, and partially paid invoices without protest" (Scheichet & Davis, P.C. v Nohavicka, 93 AD3d 478, 478 [1st Dept 2012] [internal quotation marks omitted]; see Miller v Nadler, 60 AD3d 499 [1st Dept 2009]).

Defendant’s argument that plaintiff failed to make a prima facie case because it submitted no expert opinion that its retainer agreement and the legal services it rendered were fair and reasonable is unpreserved. Were we to reach the merits, we would find it unavailing. It is not part of a plaintiff’s prima facie case on a claim for an account stated to show the reasonableness of the retainer agreement or its legal services (see e.g. Scheichet & Davis. P.C. at 478; Miller at 499). Indeed, in Miller, we found that "[p]laintiff’s failure to comply with the rules on retainer agreements … does not preclude it from suing to recover legal fees for the services it provided" (Miller at 500), and "[i]n the context of an account stated pertaining to legal fees, a firm does not have to establish the reasonableness of its fee" (Lapidus & Assoc., LLP v Elizabeth St., Inc., 92 AD3d 405, 405-406 [1st Dept 2012] [internal quotation marks omitted]).

If a defendant client’s legal malpractice claim is intertwined with a plaintiff law firm’s claim for legal fees, the plaintiff will not be entitled to summary judgment on its account stated claim. However, if the malpractice claim is not so intertwined, courts are not precluded from [*2]granting the plaintiff summary judgment (see Morrison Cohen Singer & Weinstein v Ackerman, 280 AD2d 355, 356 [1st Dept 2001]).

Here, it was not an improvident exercise of the motion court’s discretion to rule, in effect, that defendant had waived his right to raise malpractice by not filing an amended answer by the deadline set by the court (see Quintanna v Rogers, 306 AD2d 167, 168 [1st Dept 2003]). Furthermore, the record shows that plaintiff performed a great deal of work that was unrelated to the purported malpractice.

People question whether "they" like us?  Do "they" treat us fairly?  We wonder whether legal malpractice is treated differently than all other law suits? Fielding v Kupferman, 2013 NY Slip Op 02008 Appellate Division, First Department raises the question once again. Compare this case to a garden or varietal slip and fall. Example: plaintiff trips over a defective step and breaks his leg. Would the Appellate Division then discuss whether breaking a bone was better than what might have happened, were plaintiff to fall down an entire flight of stairs and break his neck? We believe that it would not.
 

Nevertheless, this is what happens regularly in a legal malpractice case. Take Fielding as an example. "Defendants established their entitlement to judgment as a matter of law in this action alleging legal malpractice. Defendants submitted evidence showing that the divorce settlement, in which plaintiff achieved his goal of retaining the parties’ marital residence, was advantageous to plaintiff, and resulted in his receiving consideration that more than compensated him for the allegedly unforeseen tax consequences of liquidating his Keogh account (see e.g. Kluczka v Lecci, 63 AD3d 796, 798 [2d Dept 2009]). Defendants also submitted evidence demonstrating that the subject tax consequences were discussed with plaintiff during the course of the settlement negotiations.

In opposition, plaintiff failed to raise a triable issue of fact. His argument that if he had been properly advised on the tax consequences, he would have reached a better settlement or outcome after trial, is speculative (see Klucka at 798). Plaintiff failed to take into account the benefits he received in the actual settlement, including buying out his wife’s share of the marital residence based on an outdated appraisal that assigned a value that was significantly lower than the actual value at the time the agreement was executed. Moreover, plaintiff failed to provide proof of any ascertainable actual damages sustained as a result of the alleged negligence (see Lavanant v General Acc. Ins. Co. of Am., 212 AD2d 450 [1st Dept 1995]). [*2]

Under the circumstances presented, plaintiff’s claim for disgorgement of legal fees already paid was properly dismissed."

This legal malpractice case started around 1991.  It’s been up to the AD 4th Department, back down to Supreme Court and now is back at the AD.  Here is their recitation.  We love the attorney masquerading as a doctor and a Vet reviewing human medical records. From:  Dischiavi v Calli
2013 NY Slip Op 07289   Released on November 8, 2013   Appellate Division, Fourth Department
"Memorandum: Plaintiffs commenced this action seeking damages for, inter alia, breach of contract, legal malpractice and fraud, alleging, among other things, that defendants failed to commence timely legal actions to recover damages arising from injuries sustained by Gary M. Dischiavi (plaintiff). Plaintiffs allege in their complaint that plaintiff was injured as the result of an accident that occurred while he was on duty as a City of Utica police officer in 1991, and that he was further injured as a result of his ensuing medical treatment. Although plaintiffs retained defendant law firm of Calli, Kowalczyk, Tolles, Deery and Soja (CKTDS) to represent them with respect to possible claims arising from those injuries, no action was ever instituted. Plaintiffs further allege that defendants purported to have plaintiff examined by an expert physician but had a lawyer examine him instead, purported to have other expert physicians review plaintiff’s medical records but had a veterinarian perform that review, misrepresented that they had commenced a personal injury action on plaintiffs’ behalf, and created a fake settlement agreement for that "action." This case was previously before us on appeal, and we determined, inter alia, that Supreme Court erred in granting the motions and cross motion of various defendants for summary judgment dismissing the complaint in its entirety against them (Dischiavi v Calli [appeal No. 2], 68 AD3d 1691, 1692-1694). "

To the extent that defendants sought summary judgment dismissing the first and second causes of action on the ground that the applicable three-year statute of limitations had expired prior to the commencement of this action (see CPLR 214 [6]; see generally Zorn v Gilbert, 8 NY3d 933, 933-934), we conclude that they met their initial burden on their respective motions. We further conclude, however, that plaintiffs raised a triable issue of fact whether the doctrine of continuous representation tolled the statute of limitations (see generally Shumsky v Eisenstein, 96 NY2d 164, 167-168). The court therefore properly determined that defendants were not entitled to the relief sought based on the statute of limitations.

We agree with all defendants that the court erred in denying those parts of their motions seeking summary judgment dismissing the third cause of action, for fraud, against them. Thus, we modify the order accordingly. "The elements of a cause of action for fraud require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff[s] and damages" (Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559; see Ross v Louise Wise Servs., Inc., 8 NY3d 478, 488; Lama Holding Co. v Smith Barney, 88 NY2d 413, 421). "Where, as here, a fraud [cause of action] is asserted in connection with charges of professional malpractice, it is sustainable only to the extent that it is premised upon one or more affirmative, intentional misrepresentations . . . which have caused additional damages, separate and distinct from those generated by the alleged malpractice" (White of Lake George v Bell, 251 AD2d 777, 778, lv dismissed 92 NY2d 947; see Tasseff v Nussbaumer & Clarke, 298 AD2d 877, 878; see generally Wells Fargo Bank, N.A. v Zahran, 100 AD3d 1549, 1550, lv denied 20 NY3d 861). We agree with defendants that they met their initial burden on their motions by establishing that plaintiffs did not sustain any additional damages as a result of the alleged fraud, and plaintiffs failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324-325). Contrary to plaintiffs’ contention, this Court’s prior order denying those parts of the respective defendants’ initial motions and cross motions "pursuant to CPLR 3211 (a) (7) to dismiss the complaint, which w[ere] addressed to the sufficiency of the pleadings, did not establish the law of the case for the purpose of their subsequent motion[s] pursuant to CPLR 3212 for summary judgment, which [were] addressed to the sufficiency of the evidence" (Thompson v Lamprecht Transp., 39 AD3d 846, 847).
 

On their cross appeal, plaintiffs contend that the court erred in dismissing the first and second causes of action insofar as they are premised upon defendants’ failure to commence a personal injury action. The court granted defendants’ motions for summary judgment dismissing those causes of action to that extent based on its determination that the statute of limitations therefor had expired before plaintiffs retained any of the defendants. Plaintiffs now contend that the statute of limitations for those causes of action was extended several times by amendments to General Municipal Law § 205-e (2), which resulted in the revival of plaintiffs’ causes of action until a time after they first retained CKTDS. That contention is not properly before us because it is raised for the first time on appeal, and "[a]n issue may not be raised for the first time on appeal . . . where it could have been obviated or cured by factual showings or legal countersteps’ in the trial court" (Oram v Capone, 206 AD2d 839, 840, quoting Telaro v Telaro, 25 NY2d 433, 439, rearg denied 26 NY2d 751). The revival statute on which plaintiffs rely applies to causes of action that "would have been actionable on or after January [1, 1987] had this section been effective" (§ 205-e [2]), and we conclude that defendants could have made a factual showing that plaintiffs’ first and second causes of action insofar as they are premised upon defendants’ failure to commence a personal injury action were not actionable because they were precluded by plaintiff’s receipt of benefits pursuant to General Municipal Law § 207-c. "

Case is marked "disposed."  This can happen when there is a failure to appear in court, when a motion goes unanswered, or when some other event transpires and the court routinely "disposes" of a case administratively.  It can also happen after a contested motion is decided.  How Plaintiff’s case was disposed of in Champlin v Pellegrin 2013 NY Slip Op 07257  Decided on November 7, 2013  Appellate Division, First Department we don’t know.
 

What we do know, from the decision, is that none of the suggested reasons why the case was still timely worked.  "Contrary to plaintiff’s assertions, the claim was not tolled by the continuous representation doctrine. Generally, tolling under the continuous representation doctrine "end[s] once the client is informed or otherwise put on notice of the attorney’s withdrawal from representation" (Shumsky v Eisenstein, 96 NY2d 164, 171 [2001]). The parties do not dispute that there were no communications between them from 1994 until 2011, when plaintiff purported to discharge defendant from representing him. The more than 16-year lapse in communications from defendant was sufficient to constitute reasonable notice to plaintiff that defendant was no longer representing him.

Furthermore, as there was no "clear indicia of an ongoing, continuous, developing, and dependent relationship between [plaintiff and defendant]" (Pittelli v Schulman, 128 AD2d 600, 601 [2d Dept 1987] [internal quotation marks omitted]), or a "mutual understanding of the need for further representation on the specific subject matter[s] underlying the malpractice claim" [*2](McCoy v Feinman, 99 NY2d 295, 306 [2002]), we find that plaintiff’s reliance on CPLR 321(b) is misplaced. "

Client has lost millions and goes to attorney.  Attorney arranges for a private investigator to work on the case.  So far so good?  The investigator’s contract called for payment of $ 350,000 plus 25% on success in locating assets.  Clients thought this too much.  Can a complaint for fraud adequately be stated on these facts?

In Moche v Srour  2013 NY Slip Op 32740(U)  October 26, 2013  Sup Ct, New York County
Docket Number: 157764/2012  Judge: Eileen A. Rakower tells us that the answer is yes.

"This action arises from the retention of a private investigator on Plaintiffs’ behalf by their attorney. In this action, plaintiffs Charles M. Moche and Ezra S. Moche (collectively, "Plaintiffs"), residents of New Jersey, contend they "were individuals who were victims of a real estate fraud scheme which caused them to lose millions of dollars." Plaintiffs allege that they thereafter "retained Deborah R. Srour, Esq. Srour and the law firm of Cox, Padmore Skolnick & Skarachy LLC to help regain the money they had lost." Plaintiffs further allege that Srour thereafter "took undue advantage of plaintiffs’ desperate situation because of their significant losses and entered into an agreement with defendant Patrol H.Y. Security (2007) Ltd. (Patrol) and Chaim Sharvit (Sharvit) purportedly obligating plaintiffs [sic] to pay Patrol $350,00 caused plaintiffs [sic] to give $225,000 to Patrol."
Plaintiffs allege, "Sharvit provided almost no services or work product to plaintiffs yet retained plaintiffs’ $225,000.00 and demanded the additional $125,000 purportedly due under Srour’s agreement." Plaintiffs further allege that "[u]pon information and belief, Sharvit shared those funds with Srour and/or Cox Padmore while Srour in fact during said period in question was purportedly representing plaintiff and had a fiduciary obligation to plaintiff."

"Here, accepting the allegations as true that Srour "at the time of entering into the agreement either acted as Patrol’s attorney and/or partner, and failed to disclose same to plaintiffs," "Sour also concealed that under the agreement … , Sharvit was not obligated to do anything," and "Upon information and belief, Sharvit shared those funds with Srour and/or Cox Padmore … ," Plaintiffs have stated claims for fraud and fraud in the inducement as against Srour and Cox Padmore.
 

The second cause of action of the Amended Complaint is for unjust enrichment. "[T]o prevail on a claim of unjust enrichment, "a party must show that (1) the other party was enriched, (2) at that party’s expense, and (3) that ‘it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered."’ (Cruz v. McAneney, 31 A.D.3d 54, 59 [2006]). "The existence of a valid and enforceable written contract governing a particular subject matter ordinarily precludes recovery in quasi contract for events arising out of the same subject matter." Clark-Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y. 2d 382, 399 [1987]. "[A] party is not precluded from proceeding on both breach of contract and quasi contract theories where there is a bona fide dispute as to the existence of a contract or where the contract does not cover the dispute in issue." Curtis Props. Corp. v. Greif Cos., 236 A.D.2d 237, 239 (1st Dep’t 1997). A bona fide dispute exists where a defendant alleges unconscionability or fraud. (Id.). Here, accepting the allegations that Plaintiffs paid Sharvit and Patrol $225,000 for services that were not adequately invoiced or rendered, that Srour and Cox Padmore shared those funds, and the contract entered by Srour with Patrol and Sharvit on Plaintiffs’ behalf was unconscionable, Plaintiffs have stated a claim for unjust enrichment.

The third cause of action of the Amended Complaint is for breach of fiduciary duty. The elements of a cause of action for breach of fiduciary duty include (1) the existence of a fiduciary relationship; (2) misconduct; and (3) damages caused by the misconduct. (Armentano v. Paraco Gas Corp., 90 AD3d 683, 935 NYS2d 304 [2nd Dept 2011]). Based on the allegations that Srour, as Plaintiffs’ attorney, "prepared the agreement with Sharvit to the benefit of Sharvit and the detriment of plaintiffs" and thereafter shared in those funds that Plaintiffs paid to Sharvit without Plaintiffs’ knowledge," Plaintiffs have stated a claim for breach of fiduciary as against Srour and Cox Padmore. The fourth cause of action of the Amended Complaint is for legal malpractice
stemming from Plaintiffs’ recommendation of Patrol and Sharvit. In order to prevail against an attorney on a legal malpractice claim, a plaintiff must first prove that the  attorney was negligent, that such negligence was the proximate cause of the loss sustained, and that actual damages resulted therefrom (see Tydings v. Greenfield, Stein& Senior, 2007 NY Slip Op 6734, *2 [1st Dept. 2007]). An attorney does not, except by express agreement, guarantee results. Weinberg v. Needelman, 226 A.D. 3,4-5 [1st Dept 1929], aff’d, 252 N.Y. 622 [1930]. "[A]n attorney is not held to the rule of infallibility and is not liable for an honest mistake of judgment, where the proper course is open to reasonable doubt. Thus, ‘selection of one among several reasonable courses of action does not constitute malpractice."’ Bernstein v. Oppenheim & Co.,  P.C., 160 A.D.2d 428, 430 [151 Dept 1990]. Here, Plaintiffs’ legal malpractice claim is based on Srour’s recommendation which they followed in the retention of the private investigator. This allegation alone is insufficient to make out a legal malpractice claim."

Plaintiff is injured while at work as a teacher in NYC and goes to an attorney. The attorney advises her to bring a Workers’ Compensation Claim, and does so for her. More than 90 days passes, and lo and behold, it turns out that Teachers in NYC are not covered by WC, and are (must) bring a personal injury claim. It’s too late for plaintiff. Is this legal malpractice?

Supreme Court did not think so. The Appellate Division, however, did. Gaskin v Harris 2012 NY Slip Op 06123 ;  Appellate Division, Second Department .
 

"However, the Supreme Court should not have granted that branch of the defendant’s cross motion which was to pursuant to CPLR 3211(a)(1) and (7) to dismiss the cause of action alleging legal malpractice. To recover damages for legal malpractice, a plaintiff is required to show that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney’s breach of this duty caused the plaintiff to suffer actual and ascertainable damages (see Dombrowski v Bulson, 19 NY3d 347, 350; Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; McCoy v Feinman, 99 NY2d 295, 301-302; Gershkovich v Miller, Rosado & Algios, LLP, 96 AD3d 716, 717). When determining a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible [*2]inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; Leon v Martinez, 84 NY2d 83, 87; Marom v Anselmo, 90 AD3d 622, 623), and "may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint" (Leon v Martinez, 84 NY2d at 88; see Berman v Christ Apostolic Church Intl. Miracle Ctr., Inc., 87 AD3d 1094, 1096-1097; Kopelowitz & Co., Inc. v Mann, 83 AD3d 793, 797). Further, a motion pursuant to CPLR 3211(a)(1) may be granted "only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d at 326; see Leon v Martinez, 84 NY2d at 88; Robertson v Wells, 95 AD3d 862, 863; Magnus v Sklover, 95 AD3d 837, 837).

Applying these principles here, the complaint, as amplified by the affidavits submitted by the plaintiff, adequately states a cause of action to recover damages for legal malpractice. The plaintiff alleges that the defendant negligently advised her to seek Workers’ Compensation benefits for injuries sustained in the course of her employment as a substitute teacher, when he should have known, as an attorney specializing in this area, that New York City teachers and substitute teachers are not covered by the Workers’ Compensation Law. She further claims that the defendant advised her to pursue a baseless Workers’ Compensation claim instead of litigation, failed to advise her of the deadline for filing a notice of claim, and counseled her against accepting a mediator’s recommended settlement that would have afforded her some compensation for her injuries. Although the documentary evidence submitted by the defendant establishes that he promptly filed a Workers’ Compensation claim on the plaintiff’s behalf, and that the claim was denied on the ground that New York City teachers, including substitute teachers, are not covered by the Workers’ Compensation Law, this evidence does not conclusively establish a defense to the plaintiff’s asserted malpractice claims. Accordingly, the Supreme Court should have denied that branch of the defendant’s cross motion which was to pursuant to CPLR 3211(a)(1) and (7) to dismiss the cause of action alleging legal malpractice (see Magnus v Sklover, 95 AD3d at 837; Ofman v Katz, 89 AD3d 909, 910; Thompsen v Baier, 84 AD3d 1062, 1063).
 

Last week we reported on the disbarment of Tom Bello of Staten Island in Matter of Bello ;2013 NY Slip Op 06859 ;  Decided on October 23, 2013 ; Appellate Division, Second Department  ;  Per Curiam.

Today, we see some of the after effects of his representation of other clients.  in Stein v Research Found. City Univ. of N.Y. ;  2013 NY Slip Op 51812(U) ;  Decided on October 28, 2013 ;  Supreme Court, Richmond County ;  Maltese, J.

"In or about September of 2006, the plaintiff was terminated by the Small Business Development Center (hereinafter "SBDC") located on the campus of the College of Staten Island. The SBDC is one of twenty four regional centers of the New York State Small Business [*2]Development Center and receives funding from the City and State Universities of New York."

"In the years following his termination, plaintiff contacted the Public Integrity Bureau of the New York State Attorney General’s office, the Civil Rights Center of the United States Department of Labor, the Department of Investigation for the City of New York, the United States Department of Justice and the Equal Employment Opportunity Commission before ultimately filing suit against the City University of New York, the SBDC, the College of Staten Island and Dean Balsamini in April of 2011.The plaintiff indicated that he, along with others from the college, retained the services of Attorney Thomas Bello to assist them in the legal proceedings. The record is unclear as to how long this relationship lasted, but the plaintiff’s submissions indicate Attorney Bello failed to file necessary documents even though he provided the plaintiff with notarized documentation and advised him the case was proceeding smoothly. Attorney Bello has previously been the subject of a legal malpractice suit brought by a different individual and is under investigation by the Staten Island District Attorney.[FN1] The record is also unclear as to the status of any proceeding brought by plaintiff against Attorney Bello concerning their relationship. However, on October 23, 2013 the New York Supreme Court Appellate Division, Second Department in Matter of Thomas F. Bello, an attorney and counselor-at-law, discipline number D38484 issued an order accepting the resignation of Attorney Thomas F. Bello from the bar and thereby disbarred him and struck his name from the roll of attorneys and counselors-at-law.[FN2] "

"Moreover, the plaintiff’s instant action is not based on legal malpractice but instead is centered on the alleged actions of the Research Foundation. While the court recognizes the plaintiff may have a malpractice action based on Attorney Bello’s failure to appropriately file documents in the 2011 case before the statute of limitations period expired,[FN11] any such claim does not bear on the res judicata analysis since the malpractice suit is separate and apart from his claim against this defendant. The substance of his current claim against the Research Foundation is the same as his previous claim and thus cannot be re-litigated. The plaintiff’s claims against Attorney Bello would be best pursued in a separate action provided it is not filed outside the three year statute of limitation which runs from the date of the original malpractice.[FN12]
"

Client wants to open a business.  Client goes to attorney to make sure that the store she is building in NYC will meet all codes.  Attorney tells her no employee bathroom is necessary.  The City says it is necessary.  She loses the store as a result.  Legal Malpractice?

In Cavlak v Helbraun;  2013 NY Slip Op 32704(U);  October 25, 2013;  Supreme Court, New York County;  Docket Number: 103896/2012;  Judge: Richard F. Braun says that the legal malpractice claim remains, while all other causes of action are dismissed.

"This is an action sounding in negligence, legal malpractice, violation of Judiciary Law§ 487, breach of fiduciary duty, and breach of contract, all arising out of the review by defendant David
Helbraun (defendant) of plaintiffs lease for plaintiffs storefront take-out window bakery/ cafe and
giving of advice in relation thereto. Plaintiff contends that she was not properly advised by defendant of the need for an available employee bathroom under the New York City Health Code. After receiving a number of citations for New York City Health Code violations, including one for the lack of an available employee bathroom, plaintiff maintains that she was forced to end the operation of her business, which caused her to lose her investment in the business. Defendant contends that the complaint should be dismissed, pursuant to CPLR 3211 (a) (1) and (7), based on the documentary evidence that he submitted and because plaintiff has failed to state a cause of action.·"

"Plaintiff has stated a cause of action for legal malpractice sufficient to withstand a motion to dismiss, insofar as she alleges that she was not properly apprised of the implications of a lack of an employee bathroom for the premises, which ultimately caused her to lose her business and her investment therein. Plaintiff effectively pleads that she was erroneously advised that a bathroom for employees was not required. Defendant contends that under then NYCHC § 81.29 (a) (now modified in § 81.22 [a]) a bathroom for employee use need not be in the actual store, but that some facilities must be available for employee use. Even assuming that bathrooms in nearby
restaurants could serve that function, bathrooms in those restaurants were not available at the time
of the New York City Department of Health inspection because the restaurants were not open and
thus seemingly would not ordinarily be available during plaintiffs prime morning hours. Had
plaintiff not been advised that a bathroom for employees was not required, as alleged, she would not have faced this dilemma. While defendant asserts that the violation could have been challenged and cured, that would involve a determination on proximate cause beyond the face of the pleading (cf Bernardi v Spyratos, 79 AD3d 684, 688 [2nd Dept 2010] [where the determination on causation was on a motion for summary judgment]). Indeed, plaintiff maintains that she obtained documents showing that she was authorized to use the bathroom in the restaurant next door and presented them at a hearing, apparently to no avail.

"Failure to exhaust administrative remedies is not a defense to a legal malpractice claim, but rather generally bars a judicial challenge to an administrative action (see Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, 57 [1978]). While a failure to exhaust administrative remedies could be a factor in determining whether an attorney’s negligence was a proximate cause of a plaintiffs damages (cf Catuzza v Rodriguez, 93 AD3d 1214, 1214-1215 [4th Dept 2012] [the defendant attorneys in a legal malpractice action failed to establish as a matter of law that the plaintiff employee’s complaint against the county would have been dismissed on the ground that he failed to exhaust his administrative remedies]), that too goes beyond the issue of the sufficiency of the pleading."