Attorneys and clients have a unique compensation arrangement in contingent fees.  It’s almost unheard of for people to get paid only on success.  Doctors get paid for treating you, not for curing you.  Plumbers get paid for showing up, and then get paid more for doing the work.  Lawyers often work on contingent plans where they agree to take the case, work the case, pay for the expenses of the case, and then make money if they are successful.  It’s an arrangement that works well if everyone keeps to the rules.

What happens when an attorney decides that he has paid enough of the expenses and now demands that the client put up some money?  We see one outcome in Palmieri v Biggiani
2013 NY Slip Op 05194  Decided on July 10, 2013   Appellate Division, Second Department.  Client alleges that attorney demanded expenses during the case after the defendant insurer marked the case "no pay".  Of course, the contingent arrangement was that the attorney bear the expenses and the risk.
"On July 25, 2007, the parties stipulated to the substitution of the defendant as counsel (hereinafter the July 2007 stipulation). On August 12, 2008, the Supreme Court dismissed the underlying action. The parties dispute the basis for the August 2008 dismissal. The plaintiff alleges that the August 2008 dismissal was based on the Supreme Court’s determination that more than one year had elapsed between the July 2005 order entered on the plaintiff’s default and the May 2007 order vacating that default and restoring the action to the trial calendar, and that the underlying action was, thus, not restorable pursuant to the May 2007 order. He further alleges that, inasmuch as the defendant first withdrew as counsel under false pretenses, and had been reinstated as counsel in May 2007, the defendant’s failure to timely rectify the consequences of the March 2006 dismissal of the underlying action constituted legal malpractice. The defendant contends that the August 2008 dismissal was based on the failure of the plaintiff’s subsequent counsel to prosecute the underlying action. The only documentary evidence in the record as to the court’s reason for the August 2008 dismissal was an entry in the Supreme Court’s computerized calendar record indicating that the underlying action was dismissed "PER SFO J.EDB 3-23-2006."

The plaintiff thereafter commenced the instant legal malpractice action, and the defendant moved, in effect, to dismiss the amended complaint pursuant to CPLR 3211(a)(1), (5), and (7). In an order dated July 5, 2011, the Supreme Court granted that branch of the defendant’s motion which was to dismiss the cause of action alleging legal malpractice, based on its conclusion that documentary evidence established that the underlying action was ultimately dismissed more than one year after the defendant was relieved as counsel, that events subsequent to the substitution of counsel could not be attributed to the defendant, and that, as a matter of law, the defendant’s refusal to advance the expert’s fee was not a proximate cause of the August 2008 dismissal. The Supreme Court also directed the dismissal of the causes of action alleging breach of contract, fraud, breach of fiduciary duty, and deceit as duplicative of the cause of action alleging legal malpractice. It further directed the dismissal of the remaining causes of action for failure to state a cause of action. In a judgment entered August 2, 2011, the Supreme Court dismissed the amended complaint. "

"Contrary to the Supreme Court’s conclusion, the plaintiff stated a cause of action alleging violation of Judiciary Law § 487 (see CPLR 3211[a][7]; Judiciary Law § 487; Amalfitano v Rosenberg, 12 NY3d 8, 14; Rock City Sound, Inc. v Bashian & Farber, LLP, 74 AD3d at 1172; Boglia v Greenberg, 63 AD3d 973, 975; Kempf v Magida, 37 AD3d at 764; Izko Sportswear Co., Inc. v Flaum, 25 AD3d 534, 537). The plaintiff alleged in the amended complaint that the defendant’s assertion, made in support of the motion to be relieved as counsel, that the plaintiff "steadfastly refused to pay the litigation expenses," was knowingly false and was offered with the intent to deceive the Supreme Court into believing that the defendant originally had sufficient cause to be relieved as counsel (see Dupree v Voorhees, 102 AD3d 912, 913). Thus, the Supreme Court should have denied that branch of the defendant’s motion which was to dismiss the cause of action alleging a violation of Judiciary Law § 487. "

 

 

Today’s New York Law Journal article by Brendan Pierson highlights the New York fee dispute apparatus.  Either attorney or client can trigger an arbitration, and if either is dissatisfied with the result, can request a de novo court case.  What is fascinating about this case is the lack of caution and apparent bad judgment on the part of the attorney.

"A Manhattan lawyer was ordered to turn over all but $750 of more than $22,000 he collected from two clients after a judge determined the attorney billed the clients up to $450 an hour for time he spent brushing up on basic legal principles.

The clients, Gerald and Vivian Kleinerman, hired Ronny Buni in March 2011 to represent them in litigation against their co-op board, which was already in progress. In June 2011, Buni told the Kleinermans that he would not do any more work on the matter, citing an unpaid invoice for $6,239.

The matter went to the court system’s fee dispute resolution program, an arbitration program pursuant to Part 137 of the Rules of the Chief Administrator. An arbitrator awarded the Kleinermans $5,000.

However, Buni initiated a new case in Manhattan Civil Court against the couple, seeking to recover the $6,239 bill minus the $5,000 arbitration award. The Kleinermans, for their part, sought return of all the money they had paid to Buni throughout the litigation, a total of $22,371."
 

"According to Nervo, Buni reviewed the litigation file, followed up on discovery requests already made by the parties before his involvement, attended a single status conference and "sent innumerable emails to his clients, some of which included berating them for their reasonable input into the matter."

While working on the case, Nervo said, Buni billed the couple up to $450 an hour for activities that he should not have billed.

According to bills quoted by Nervo, these included discussing filing a notice of appearance and contacting opposing counsel; doing an "attorney search" for the law clerk of the judge presiding over the case, Manhattan Supreme Court Justice Milton Tingling, "for purpose of determining his tenure and background" before calling chambers; reviewing the Civil Procedure Laws and Rules to determine the consequences of failing to demand expert information before the close of discovery; and reviewing case law "to survive [summary judgment] and prevail at trial," though no summary judgment motion had been filed.

Nervo cited as another example of Buni’s "remarkable billing practices" an hour and a half spent writing a letter to Tingling seeking an expansion of time for discovery, even though Tingling had denied an identical request by phone the previous day.

Finally, Nervo noted an "inappropriate, if not bizarre" bill for time Buni spent consulting with a retired attorney he knew about how best to handle the case.

"A client should not be charged for an attorney’s need to consult others because of that attorney’s inability to determine how best to represent that client," Nervo said. "The client is not responsible for an attorney’s need to obtain his or her own legal advice. Once plaintiff determined that he was incapable of representing defendants, rather than bill these clients for his own lack of legal knowledge he should have moved to withdraw at that time and not continue to build up legal fees.""
 

The confluence of money, crime and high-stakes litigation is titillating.  When we read about people paying $108 in restitution, then facing RICO claims from the mother-in-law, and then being sued for deceit under Judiciary Law 487, it seems like a movie.

In today’sNew York Law Journal, Andrew Keshner writes about Ira Lee Sorkin, Judd Burstein and Jonathan Winston. 

"An adversary is seeking triple damages from Ira Lee Sorkin of Lowenstein Sandler for allegedly telling a federal judge "outright lies" about his possession of a privileged document that contributed to the judge’s decision to disqualify Sorkin from the case.

Last November, Eastern District Judge Arthur Spatt, sitting in Central Islip, disqualified Sorkin from pressing a civil racketeering suit against real estate developer Jonathan Winston. Spatt noted Sorkin’s prior representation of Winston and Sorkin’s possession of a memorandum that Winston’s defense attorneys drafted but never filed in court seeking to terminate Winston’s probation after he pleaded guilty to conspiracy to commit securities fraud and conspiracy to commit money laundering.

Spatt said Sorkin offered "varying accounts" of how he got the memo, which, Spatt added, was "clearly protected under the work product privilege" (NYLJ, Nov. 27, 2012).

After Spatt dismissed the civil racketeering suit on July 3, Winston filed suit against Sorkin on Tuesday in Nassau County Supreme Court under Judiciary Law §487, alleging Sorkin "engaged in deceit with intent to deceive the Court," when he explained to Spatt how he got the draft memorandum. "

The complaint in Winston v. Sorkin, 8227/13, argues that Sorkin first "improperly made use of an unquestionably privileged draft of a proposed court filing" as he prepared the civil racketeering suit. Then, "when counsel for Winston discovered Sorkin’s improper use of the Probation Memo, Sorkin embarked upon a course of deceitful conduct that involved offering numerous, conflicting explanations of how he came into possession of the Probation Memo, culminating in outright lies made in Court."

"Represented by Judd Burstein of Manhattan, Winston seeks damages of three times the cost of litigating the disqualification motion.

Burstein in an interview estimated legal bills connected to the case at about $100,000 and stressed the underlying case was "entirely frivolous" and a "fraud."

Sorkin said he had not yet seen the suit and declined further comment.

In 1999, Winston retained Sorkin to represent him after the National Association of Securities Dealers—the predecessor of the Financial Industry Regulatory Authority—launched a probe into Winston and his securities brokerage firm, First United Equities Corporation.

When Winston became aware that he was also the subject of a criminal probe by the Eastern District U.S. attorney, he asked Sorkin to defend him but Sorkin declined, citing a conflict of interest"

 

There is no "discovery" rule in New York for the commencement of the legal malpractice statute of limitations.  As the Court in Elstein v Phillips Lytle, LLP   2013 NY Slip Op 05132   Released on July 5, 2013   Appellate Division, Fourth Department   points out, "A cause of action for legal malpractice accrues when the malpractice is committed."  However, there is a small exception to this bedrock principal, and it is originally cited in McCoy v. Feinman.  The Appellate Division, 4th Department discussed the case:

"Memorandum: In this legal malpractice action, plaintiffs appeal from an order granting the motion of Phillips Lytle, LLP and Albert M. Mercury (defendants) seeking dismissal of the complaint against them as time-barred. Plaintiffs contend that Supreme Court erred in determining the accrual date of their action, for legal malpractice. We reject that contention. " A cause of action for legal malpractice accrues when the malpractice is committed’ " (Amendola v Kendzia, 17 AD3d 1105, 1108; see Glamm v Allen, 57 NY2d 87, 93). "In most cases, this accrual time is measured from the day an actionable injury occurs, even if the aggrieved party is then ignorant of the wrong or injury’ " (McCoy v Feinman, 99 NY2d 295, 301, quoting Ackerman v Price Waterhouse, 84 NY2d 535, 541). " What is important is when the malpractice was committed, not when the client discovered it’ " (id., quoting Shumsky v Eisenstein, 96 NY2d 164, 166). Here, the alleged malpractice occurred no later than 2003, when plaintiff Daniel Elstein completed his acquisition of plaintiff Hilton Enterprises, Inc. (Hilton) from defendant Alfred D. Spaziano. Indeed, there is no indication in the record that defendants represented plaintiffs after that date. This action was not commenced until approximately eight years later, on March 4, 2011, and is thus time-barred under the applicable three-year statute of limitations (see CPLR 214 [6]).

We reject plaintiffs’ contention that they were unable to sue defendants for malpractice until March 7, 2008, when the judgment was entered against Hilton, inasmuch as that is when they sustained an actionable injury. As the Court of Appeals has made clear, a malpractice claim becomes actionable when the plaintiff’s damages become "sufficiently calculable" (McCoy, 99 [*2]NY2d at 305; see Ackerman, 84 NY2d at 541-542), and, here, plaintiffs’ damages arising from the alleged legal malpractice were sufficiently calculable in January 2007, when plaintiffs learned of the alleged malpractice, if not sooner. "

 

 

We often wonder whether legal malpractice cases are treated with a type of royal exasperation by judges. Often the feeling in the air is that legal malpractice cases maybe should not be brought, or that it’s somewhat shameful to bring one, or that perhaps attorneys are due a little extra consideration. We wonder if that’s what happened in Burbige v Siben & Ferber ; 2011 NY Slip Op 07794 ; Decided on November 1, 2011 ; Appellate Division, Second Department.
 

Did the judge just want to get this case over with?

"The plaintiff commenced this legal malpractice action alleging, inter alia, that the defendants were negligent in failing to diligently prosecute a products liability action against the manufacturer of a ladder which broke while the plaintiff was descending it. After the conclusion of opening statements, the defendants’ counsel moved, in effect, pursuant to CPLR 4401 for judgment as a matter of law or, in the alternative, for an offer of proof. The trial court reserved decision. However, before the close of the plaintiff’s case, the court granted the defendants’ motion based upon the plaintiff’s failure to make an offer of proof that he would have been successful in the underlying products liability action by offering expert testimony that the ladder from which he fell was defective.

The trial court erred in granting that branch of the defendants’ motion which was, in effect, pursuant to CPLR 4401 for judgment as a matter of law, and dismissing the action before the plaintiff rested (see CPLR 4401; Greenbaum v Hershman, 31 AD3d 607; McGhee v New York City Hous. Auth., 243 AD2d 544; Goldstein v C.W. Post Ctr. of Long Is. Univ., 122 AD2d 196). A motion for judgment as a matter of law is to be made at the close of an opposing party’s case or at any time on the basis of admissions (see CPLR 4401), and the grant of such a motion prior to the close of the opposing party’s case generally will be reversed as premature even if the ultimate success of the opposing party in the action is improbable (see Cass v Broome County Coop. Ins. Co., 94 AD2d 822; see also Canteen v City of White Plains, 165 AD2d 856; Goldstein v C.W. Post Ctr. of Long Is. Univ., 122 AD2d at 197; Page v City of New York, 79 AD2d 573; Cetta v City of New [*2]York, 46 AD2d 762; Budner v Giunta, 16 AD2d 780; cf. Clifford v Sachem Cent. School Dist. at Holbrook, 271 AD2d 470, 470-471). Therefore, the judgment must be reversed and a new trial granted to the plaintiff. "
 

In New York City condominiums are a rich source of litigation. At the ownership level, one sees litigation over the buying and selling; at a personal injury level, one sees slips and falls. In the construction of the buildings, negligence and indemnification between general contractors and subs is an ongoing field of law. Here, in Flintlock Constr. Servs., LLC v Rubin, Fiorella &
Friedman LLP; 2012 NY Slip Op 31835(U) July 9, 2012 Supreme Court, New York County
Docket Number: 109657/2011 judge: Saliann Scarpulla we see how the insurance carriers move their attorneys around in a never ending circle of litigation.

"As alleged in the complaint, FCS is a general contractor, and RFF is a law firm which was designated by FCS’s insurer to represent FCS in a construction dispute. CS states in the complaint that on or about March 30, 2004, FCS entered into a standard AIA form contract with owner Well-Come Holdings, LLC (“Well-Come”) (the contract”) for the construction of an 8-story condominium apartment project located at 06 Mott Street, in New York City (the “Mott Street project”). FCS alleges that pursuant o the contract, “FCS’s responsibilities were limited and its indemnification obligations ere limited to damages caused by its own conduct; it had not indemnity or other obligations with respect to the scope of work reserved for Well-Come, and . . . it had no obligations to indemnify Well-Come for Well-Come’s own negligence or that of Well- Come’s subcontractors or ~consultants.~F’C S also pleads that it was required to provide insurance to protect FCS and Well-Come from claims of property damage stemming from performance of the contract.

FCS alleges that during the early stages of construction at the Mott Street project in the summer of 2004, one or more ‘Occurrences”to took place which allegedly caused property damage to three adjacent property owners. These owners filed three separate lawsuits in Supreme Court, New York County, against Well-Come, FCS and some of Well-Come’s subcontractors and consultants (the “underlying litigation”). Well-Come was originally defended in the underlying litigation by Marine pursuant to its liability policy. FCS was defended by American Safety, which assigned the defense to RFF. FCS alleges that at various times from 2004 through 2009, RFF defended
multiple claims asserted by numerous parties against FCS at the request and direction of American Safety or American Safety Indemnity Company,’ and that RFF regularly reported to American Safety’s claims personnel about developments and strategies in the defense of the claims against FCS.

At some point, FCS and American Safety came to an agreement whereby FCS would pay the cost of its defense in any given claim up to and including the amount of the self-insured retention under its American Safety policy. Upon exhaustion of the self insured retention for each claim, as alleged in the complaint, American Safety would pay for FCS’s defense. FCS alleges in the complaint that although both American Safety and FCS are named as defendants in the declaratory judgment action, RFF entered an appearance and filed pleadings only on behalf of FCS. Further, FCS alleges that American Safety admitted in the declaratory judgment action that it issued both primary and excess coverage to FCS as required by the contract, but denied that Well-Come was an
“additional insured” under its policy or that it had any duty to defend or indemnify Well- Come as an additional insured under any insurance policy issued by American Safety to FCS.
 

Here, the underlying litigation is still pending, therefore Well-Come’s negligence remains an open question. And as RFF acknowledges in reply, before it can be determined whether FCS suffered damages caused by the execution of the stipulation of dismissal, it must first be determined whether Well-Come was negligent.Moreover, FCS has sufficiently pled the existence of actual damages. FCS states in the complaint that because of the stipulation of dismissal, it now faces a claim by Well- Come and its insurer for in excess of $100,000 in attorneys’ fees and expenses incurred in the defense of Well-Come in the underlying litigation. While FCS also alleges future,
speculative damages, the claims it already faces from Well-Come for attorneys’ fees are real and ascertainable, and sufficient to plead a cause of action for legal malpractice, established by FCS’s submission of correspondence from Well-Come’s counsel requesting payment in the amount of $100,395.98. Accordingly, the first and second causes of action of the complaint can not be dismissed."
 

While we understand the principal, it is nevertheless shocking to read a case in which the defendant attorney admits that they blew the statute of limitations, but argue that plaintiff had no case anyway.  It just seems wrong, somehow. 

In Hagensen v Ferro, Kuba, Mangano, Skylar, Gacovino & Lake, P.C. 2013 NY Slip Op 04980
Decided on July 2, 2013   Appellate Division, First Department   the court rejected a motion for summary judgment. 

"Defendant failed to timely serve the pleadings in an underlying personal injury action it commenced on plaintiff’s behalf, and the action was dismissed on statute of limitations grounds. Defendant moved for summary judgment in the instant action, alleging that plaintiff could not establish the proximate cause element of the malpractice claim (see generally Wo Yee Hing Realty, Corp. v Stern, 99 AD3d 58, 62-63 [1st Dept 2012]). Defendant argues that plaintiff’s evidence failed to raise a triable issue that "but-for" defendant’s negligence, plaintiff would have been successful in the underlying action.

Plaintiff’s deposition testimony that she fell on loose gravel and/or small rocks on the paved surface of the driveway of the premises she rented, and that the area of the driveway on which she fell was somewhat obscured from view by a parked car, raises factual issues as to whether the cause of her fall was attributable to the loose gravel condition. Any inconsistencies in plaintiff’s testimony as to the cause of her fall raise credibility issues for the jury (see Cuevas v City of New York, 32 AD3d 372, 373 [1st Dept 2006]).

Defendant’s argument that plaintiff’s preexisting medical conditions compromised her ability to ambulate and was the cause of her fall is not supported by the evidence and, in any event, the testimony by plaintiff alone raises triable issues as to whether her fall was attributable to the loose gravel/small rock condition on the driveway. There can be more than one proximate [*2]
cause of an accident, and a plaintiff need not exclude every other possible cause apart from the landowner’s alleged breach of its duty owing to the plaintiff (see Lopez v 1372 Shakespeare Ave. Hous. Dev. Fund Corp., 299 AD2d 230, 232 [1st Dept 2002]). "

 

The interplay of bankruptcy and personal injury or legal malpractice cases is complicated. Basically, once one files a Chapter 7 petition, all assets, including the penny in petitioner’s pocket becomes part of the Bankruptcy estate. That estate includes any personal injury claims, and even any future legal malpractice claims. If they are listed in the schedules, then the trustee has the right to litigate and collect for the creditors. If they are not, then, for the most part, they will be lost to the plaintiff. Here, in Santonocito v Moskowitz, Passman & Edelman; 2012 NY Slip Op 30580(U)
Supreme Court, New York County ;Docket Number: 114418-2010; Judge: Judith J. Gische we see a plaintiff who has a good legal malpractice case lose it all.

"On June 1,2004, prior to filing the personal injury action, plaintiff and his wife flied a voluntary petition for bankruptcy under Chapter 7 of the bankruptcy ("bankruptcy petition"). The Santonocitos brought the petition pro-se, but a legal services company (We the People) prepared and filed the petition on their behalf, charging them a $229 fee.

Schedule B of the bankruptcy petition requires that the debtor "list all personal property of the debtor of whatever kind." Item 20 requires that the debtor lid "Other contingent and unliquidated claims of every nature, including tax refunds, counterclaims of the debtor, and rights to setoff claims. Give estimated values." Item 17 of Schedule B requires the debtor to also list "Other liquidated debts owing to debtor, including tax refunds." The Santoncitos response was that they had "Proceeds from Auto Accident"

"When a debtor files for bankruptcy protection, this creates an "estate’ comprised of ‘ail legal and equitable interests of the debtor as of the commencement of the case (1 1 USC 541 [a][1]. A pre-petition injury qualifies as a legal interest, within the meaning of the statute (In re Corbi, 149 B.R. 325,329 [Bankr.E.D.N.Y.l993]) and a debtor is required to disclose in its bankruptcy petition any causes of action that would be brought by the debtor (Kunica v. St. Jean Financial Inc., 233 8.R. 46 [SDNY l999Q]). This is for the benefit of the creditors (Kunica v. St. Jean, supra). If the debtor fails to list a claim, "an unscheduled claim remains the property of the bankruptcy estate… Crawford v. Franklin Credit Management Corp., ., -B .R.–, 201 1 WL 1118584 [S.D.N.Y. 2011; also Bromley v. Fleet, 240 AD2d 611 (2d Dept 1997), Consequently, the debtor lacks standing to bring a lawsuit in connection with such claims after emerging from bankruptcy, and if s/he does, the lawsuit must be dismissed."
 

Some years ago the Legislature overruled the Court of Appeals, and passed CPLR 214(6). That statute was interpreted to say that all claims against an attorney (some other professionals) were subject to a 3 year statute, whether the claim was made in negligence or contract.

Here, in Walter v Castrataro 2012 NY Slip Op 02676, Appellate Division, Second Department we see a plaintiff unsuccessfully attempting to get the benefit of a typical 6 year statute for breach of contract.

"On April 16, 2003, the plaintiff signed a retainer agreement, wherein the defendant agreed to represent her in a matrimonial action. By letter dated July 1, 2003, the plaintiff terminated the defendant’s representation. On June 11, 2009, the plaintiff commenced this action, alleging in [*2]her complaint that the defendant "negligently failed to represent the Plaintiff and breached her duties" and "[a]s a result of the Defendant’s breach of contract the Plaintiff has suffered substantial damages[.]" The defendant moved, inter alia, for summary judgment dismissing the complaint on the ground that the complaint sounded in legal malpractice and, thus, was barred by the applicable three-year statute of limitations (see CPLR 214[6]). In her opposing affidavit, the plaintiff stated that she "may have inadvertently misused language on the Summons and Complaint. However, the object of the said application served upon Defendant asserts breach of contract verbatim and notably, Plaintiff never uses the term Legal malpractice" (emphasis in original). In her affidavit, the plaintiff alleged numerous "breaches" by the defendant in connection with the underlying matrimonial action, including a failure to file an application for pendente lite support, failure to move to vacate a certain forensic report, and failure to "modify" a certain stipulation. The Supreme Court, among other things, granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint as time-barred.

The complaint is "nothing more than a rephrasing of the claim of malpractice in the language of breach of contract" (Mitschele v Schultz, 36 AD3d 249, 252). The defendant satisfied her initial burden by demonstrating, prima facie, that the complaint sounded in legal malpractice and that the three-year statute of limitations began to run no later than July 1, 2003 (see Sladowski v Casolaro, 84 AD3d 1056, 1057). In opposition, the plaintiff failed to raise a triable issue of fact, e.g., by submitting proof demonstrating that the statute of limitations was tolled by the continuous representation doctrine, or otherwise (see Tsafatinos v Lee David Auerbach, P.C., 80 AD3d 749, 750). Accordingly, the Supreme Court properly concluded that the action, commenced almost six years after the alleged legal malpractice was committed, was barred by CPLR 214(6), and, thus, properly granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint as time-barred. "
 

Client trips and falls because of a defect in a parking lot. Client goes to attorney who fails to commence the case within the statute of limitations. Client sues attorney who comes up with very inventive defenses. What happens to the case on summary judgment?

inDuque v Perez 2012 NY Slip Op 03593, Appellate Division, Second Department plaintiff wins, so far. "The plaintiff Jairo Duque (hereinafter Duque) allegedly slipped and fell in a hole in a parking lot at a medical facility in Middletown. He and his wife allegedly retained the defendant attorneys to commence a personal injury action on his behalf (hereinafter the underlying action). After the statute of limitations had expired, the medical facility filed an answer containing an affirmative defense that it did not own the property. The defendant Allan Kuslansky presented the plaintiffs with a general release, which they executed, and informed them that Duque had "a better medical malpractice case" against the doctor who, after the accident, performed surgery on Duque’s knee. The underlying action was discontinued. "

"Here, Perez and Lewis failed to meet their prima facie burden of establishing their entitlement to judgment as a matter of law, as the evidence they submitted failed to eliminate a triable issue of fact as to whether there was an attorney-client relationship between them and the plaintiffs (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Nelson v Roth 69 AD3d 912, 913). Moreover, contrary to their contention, Perez and Lewis failed to establish, prima facie, that the legal malpractice cause of action was time-barred (see 730 J & J, LLC v Polizzotto & Polizzotto, Esqs., 69 AD3d 704, 705). Further, all of the defendants failed to meet their prima facie burden of establishing their entitlement to judgment as a matter of law, since they failed to submit evidence supporting their contention that their alleged malpractice did not cause the plaintiffs to sustain any losses because the plaintiffs would not have been able to establish that the premises owner had actual or constructive notice of the alleged defective condition.

Accordingly, since the defendants failed to meet their prima facie burden on their motions for summary judgment, those branches of the defendants’ respective motions which were for summary judgment dismissing the cause of action alleging legal malpractice insofar as asserted against each of them were properly denied, regardless of the sufficiency of the plaintiffs’ opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853). "