In many ways legal malpractice and medical malpractice are first cousins. In other ways, attorneys get a far more beneficial set of rules in how they are treated by their fellow attorneys in legal malpractice claim settings.

One example is illustrated in Dowlah v Professional Staff Congress 2024 NY Slip Op 02980 Decided on May 30, 2024 Appellate Division, First Department where plaintiff attempts to sue his union provided lawyer for legal malpractice.

“Plaintiff’s legal malpractice claim against his union-appointed attorney who represented him in arbitration is preempted by Federal labor law, as “attorneys who perform services for and on behalf of a union may not be held liable in malpractice to individual grievants where the services performed constitute part of the collective bargaining process” (Mamorella v Derkasch, 276 AD2d 152, 155 [4th Dept 2000]).

Plaintiff’s claims against his union, Professional Staff Congress (PSC-CUNY), and its legal director, arising from their selection of an allegedly biased arbitrator are barred by res judicata and collateral estoppel based on this Court’s resolution of that issue in plaintiff’s prior appeals (see Matter of Dowlah v City Univ. of N.Y., 189 AD3d 533, 534 [1st Dept 2020]; Dowlah v American Arbitration Assn., 221 AD3d 426, 426 [1st Dept 2023]). Plaintiff’s instant claims are based on the same transaction as in both earlier actions, and therefore they are barred even though they are based upon different legal theories (Dowlah, 221 AD3d at 427). “That plaintiff has pleaded different causes of action and included new parties is of no moment” since “plaintiff, the party against whom preclusion is sought, was a party in the earlier action[s]” (id.).

To the extent plaintiff’s claim against PSC-CUNY arises from its appointment of plaintiff’s allegedly negligent attorney and thus raises a distinct issue, his allegations constitute a claim that he was improperly represented by his union, which is untimely under CPLR 217(2)(a)’s four-month limitations period (see Roman v City Empls. Union Local 237, 300 AD2d 142, 142 [1st Dept 2002], lv denied 100 NY2d 501 [2003]).”

Grasso v Guarino 2024 NY Slip Op 02692 Decided on May 15, 2024
Appellate Division, Second Department illustrates the quanta of allegations necessary to state a cause of action in Judiciary Law 487 claims.

“In 2011, the defendant represented the Town of Babylon in an action (hereinafter the 2011 action) commenced in the District Court, Suffolk County, against the plaintiff, alleging violations of the Town Code. In November 2017, the plaintiff commenced this action against the defendant individually and in his capacity as principal owner of Law Offices of Jerry C. Guarino, P.C. The plaintiff asserted causes of action alleging a violation of Judiciary Law § 487, fraud, and intentional infliction of emotional distress. The basis for the plaintiff’s allegations was the defendant’s conduct in the 2011 action, consisting of, inter alia, an alleged deceitful representation by the defendant in response to the plaintiff’s discovery demands, wherein the defendant represented that there were no notes taken by Town employees related to the plaintiff’s alleged violations of the Town Code, and the defendant’s alleged deceitful statement in a letter to the District Court, asserting that the plaintiff’s counsel had been sanctioned when the defendant should have known that those sanctions had been vacated. The defendant moved pursuant to CPLR 3211(a) to dismiss the amended complaint. In an order dated March 7, 2022, the Supreme Court granted the motion. The plaintiff appeals.”

“A cause of action alleging a violation of Judiciary Law § 487 “requires, among other things, an act of deceit by an attorney, with intent to deceive the court or any party” (Shaffer v Gilberg, 125 AD3d 632, 636 [internal quotation marks omitted]; see Cordell Marble Falls, LLC v Kelly, 191 AD3d 760, 762). “‘[V]iolation of Judiciary Law § 487 requires an intent to deceive’ as [*2]opposed to conduct which is negligent” (Cordell Marble Falls, LLC v Kelly, 191 AD3d at 762, quoting Moormann v Perini & Hoerger, 65 AD3d 1106, 1108 [citation omitted]). “Relief pursuant to Judiciary Law § 487 is not lightly given, and requires a showing of egregious conduct or a chronic and extreme pattern of behavior on the part of the defendant attorneys” (Kaufman v Moritt Hock & Hamroff, LLP, 192 AD3d 1092, 1093 [citation and internal quotation marks omitted]). “A cause of action alleging a violation of Judiciary Law § 487 must be pleaded with specificity” (id. [internal quotation marks omitted]). Here, even accepting the allegations in the amended complaint as true and according the plaintiff the benefit of every possible favorable inference, the amended complaint did not allege conduct that is actionable under Judiciary Law § 487 (see Kaufman v Moritt Hock & Hamroff, LLP, 192 AD3d at 1093).”

Real estate and legal malpractice go hand-in-hand so often in New York that there is practically a sub-genre of Manhattan apartment legal malpractice cases. They involve construction litigation, water intrusion litigation and of course, mortgage law litigation.

RSD857 LLC v Wright 2024 NY Slip Op 31674(U) May 13, 2024 Supreme Court, New York County Docket Number: Index No. 158125/2022 Judge: Paul A. Goetz is one such case.

“Wright alleges that he is the victim of a predatory mortgage foreclosure rescue scam
perpetrated by Petrokansky, in concert with RSD857 and the other counterclaim defendants, to fraudulently induce him and his wife, Doreen Green (Green),
to convey title to the Property, then the subject of a residential mortgage foreclosure action, to RSD857 in a short sale transaction (id., ¶ 80). Wright and Green purchased the one- to two-family residential dwelling in 1998 for $95,000 and obtained a mortgage, and refinanced multiple times to finance repairs (id., ¶¶ 91 and 97, NYSCEF Doc No. 43, Wright amended answer, exhibit 5). In October 2006, Wright and Green obtained a loan in the principal sum of $1.151 million secured by a mortgage on the Property in favor of Mortgage Electronic Registration System, Inc., as nominee for Countrywide Bank, N.A. (the Wright Loan and Mortgage) (NYSCEF Doc No. 38, ¶ 98). Bank of America, N.A. subsequently acquired Countrywide Bank, N.A. (id., ¶ 99), and Nationstar, later known as Mr. Cooper, began servicing the Wright Loan and Mortgage (id., ¶ 102). The Wright Loan and Mortgage has been in default since April 2011 (id., ¶ 148), and the mortgagee
commenced a mortgage foreclosure action against Wright, Green and others captioned Deustche Bank National Trust Company v Green, et al., Sup Ct, NY County, index No. 850088/2017 (the Foreclosure Action) (id., ¶ 107; NYSCEF Doc No. 94, Bruno affirmation, exhibit C). Wright retained the Law Office of Yuriy Moshes, P.C. to represent him, though a loan modification agreement was never finalized or executed (NYSCEF Doc No. 38, ¶ 108).

In September 2017, Petrokansksy approached Wright on behalf of YKSNAK, stated that
he knew the Property was in foreclosure and offered to purchase it outright before offering to assist Wright in keeping his home (id., ¶¶ 109-110). Between September 2017 and October 2019, Petrokansky repeatedly represented that he could save the Property from foreclosure while allowing Wright to maintain his equity in the Property and to continue residing there if Wright agreed to pursue a short sale (id., ¶¶ 117 and 119). Petrokansksy purportedly showed Wright photographs of other distressed homeowners he had helped and allowed Wright to speak to one such person by telephone (id., ¶ 120). By early 2018, Petrokansksy had successfully persuaded
Wright to agree to a short sale to evade foreclosure (id., ¶ 121). In February 2018, Wright and Green executed a memorandum of contract in which they agreed to sell the Property to RSD857; the memorandum was recorded in the Office of the City Register nine days later (NYSCEF Doc No. 48, Wright amended answer, exhibit 10). RSD857, though, did not register to conduct business with the New York State Department of State until March 21, 2018 (NYSCEF Doc No. 49, Wright amended answer, exhibit 11). On Petrokansky’s advice, Wright filed for Chapter 13 bankruptcy on March 5, 2018 to stay further proceedings in the Foreclosure Action (id., ¶¶ 124- 125). Wright alleges that after the Law Office of Yuriy Moshes, P.C. withdrew its representation of him in late March, he relied on Petrokansky to represent his interests in the Foreclosure Action (id., ¶¶ 127-128; NYSCEF Doc No. 50, Wright amended answer, exhibit 12).

Thereafter, on April 4, 2018, Wright and Green executed a short sale contract to sell the
property to Joby for $520,000, and on April 9, 2018, Wright and Green executed a memorandum of option contract agreeing to sell the Property to YKSNAK (NYSCEF Doc No. 38, ¶¶ 129-130). In January 2019, Petrokansky allegedly arranged for two appraisals for the Property; Viscusi completed the second appraisal (id., ¶ 131). Wright alleges that Viscusi significantly undervalued the Property at $825,000 by failing to account for its value as a development site (id., ¶ 132). Wright further alleges that Viscusi’s appraisal from January 18, 2019 was a significant factor in convincing him and the mortgagee in the Foreclosure Action to agree to a short sale (id., ¶ 133). Petrokansky or his agents, purporting to represent Wright and Green, appeared at a court conference in the Foreclosure Action and “advocated for the court to issue an order that would pressure the foreclosing lender to review the pending short sale application for the benefit of Mr. Petrokansky” (id., ¶ 134). Wright and Green, at Petrokansky’s direction, also
executed a short sale approval application on October 17, 2019 (id., ¶ 136).”

“Cohen argues that Wright failed to plead fraud with particularity by failing to identify a
material misrepresentation Cohen made. Cohen further argues that Wright cannot demonstrate reasonable reliance on any purported misrepresentations by him given Wright’s prior statements that he was without counsel on the transaction and completely relied on Petrokansksy. Wright contends that he has adequately pleaded a cause of action for fraud based on a material omission. In reviewing the amended answer, Wright did not plead a specific affirmative misrepresentation made by Cohen (see CMB Export Infrastructure Inv. Group 48, LP v. Motcomb Estates, Ltd., 223 AD3d 513, 514 [1st Dept 2024] [complaint must plead specific facts about the time, place and manner of the alleged misrepresentation]), alleging only that he “relied on other’s representations, including those of … Cohen” (NYSCEF Doc No. 38, ¶ 144). However, a claim for fraud can be predicated upon an omission of material fact (Pasternack, 27
NY3d at 827), and here, Wright alleges that Cohen’s “silent acquiescence with Mr.
Petrokansky’s misrepresentations does not excuse him of liability” (NYSCEF Doc No. 115,
Wright mem of law at 2).


“Absent a confidential or fiduciary relationship, there is no duty to disclose, and mere
silence, without identifying some act of deception, does not constitute a concealment actionable as fraud” (NYCTL 1999-1 Trust v 573 Jackson Ave. Realty Corp., 55 AD3d 454, 454 [1st Dept 2008], affd 13 NY3d 573 [2009], cert denied 561 US 1006 [2010]). “A fiduciary relationship ‘exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of the relation’” (EBC I, Inc. v Goldman Sachs & Co., 5 NY3d 11, 19 [2005] [citation omitted]). Whether a fiduciary relationship exists is “necessarily fact specific” (id.). “‘If the parties … do not create their own relationship of higher trust, courts should not ordinarily transport them to the higher realm of relationship and fashion the stricter duty for them’” (id. at 20 [citation omitted]).


It is well settled that “[a]ttorneys have a fiduciary relationship with their clients” (Mutual
Benefits Offshore Fund, Ltd. v Zeltser, 172 AD3d 648, 649 [1st Dept 2019], lv dismissed 35 NY3d 933 [2020]). Wright argues that he and Cohen had a fiduciary relationship because Petrokansky stated that Cohen would act as Wright’s attorney. Wright, though, has averred in affidavits submitted in the Ejectment Action that the lawyers at the closing “were all lawyers for Mr. Petrokanksy” (NYSCEF Doc No. 103, Bruno affirmation, exhibit L, Wright 3/29/2021 aff ¶ 38), that “[a]ny alleged legal counsel all worked for Mr. Petrokansky and so did not have my best interests in mind” (id., ¶ 23), and that “there was no lawyer present there representing me to explain the documents that I was signing” (NYSCEF Doc No. 105, ¶ 24). Wright has also averred that “[t]he papers were put in front of me for the short sale and I had to completely rely on Mr. Petrokansky to advise me what he [sic] was signing” (NYSCEF Doc No. 103, ¶ 23). Although Wright’s affidavits filed in the Ejectment Action are not considered documentary evidence for purposes of CPLR § 3211 (a) (1) (Allen v Thompson, 224 AD3d 565, 568 [1st Dept 2024]), the statements therein constitute informal judicial admissions and, contrary to Wright’s
contention, those prior statements can be considered on a CPLR § 3211 motion testing the sufficiency of a pleading (see Kaisman v Hernandez, 61 AD3d 565, 566 [1st Dept 2009]; Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1st Dept 1999], affd 94 NY2d 659 [2000]). In addition, the statements in Wright’s verified answer denying the existence of an attorneyclient relationship with Cohen constitute formal judicial admissions (see P. Zaccaro, Co., Inc. v DHA Capital, LLC, 157 AD3d 602, 602 [1st Dept 2018], lv denied 31 NY3d 907 [2018]; see also Jerome Prince, Richard on Evidence § 8-215 [Farrell 11th ed 1995]). Specifically, Wright alleges that he “had not previously met Mr. Cohen, had not signed an engagement agreement with Mr. Cohen, and had not otherwise entered into an attorney-client relationship” with Cohen (NYSCEF Doc No. 38, ¶ 140). Wright pleads no other facts from which to infer that he and Cohen enjoyed a relationship of trust and confidence so as to give rise to a duty to speak (see NYCTL 1999-1 Trust, 55 AD3d at 454).


Even accepting Wright’s allegation that, “[t]o the extent an attorney-client relationship
existed, … Mr. Cohen failed to discharge his fiduciary duties to Mr. Wright” (NYSCEF Doc No. 37, ¶ 141), Wright still fails to plead a cause of action for fraud. The allegations in Wright’s amended answer sound in legal malpractice. A cause of action for fraud is duplicative of a cause of action for legal malpractice where, as is the case here, the claims arise out of the same nucleus of facts and seek the same damages (see Barrett v Goldstein, 161 AD3d 472, 473 [1st Dept 2018]). In addition, a cause of action for legal malpractice is subject to a three-year statute of limitations (see CPLR § 214), and Wright did not bring a claim against Cohen until after the statutory period expired. Accordingly, Wright’s second counterclaim for fraud as against Cohen will be dismissed.”

Dabiri v Porter 2024 NY Slip Op 02686 Decided on May 15, 2024 Appellate Division, Second Department is a case that neither defendant took particularly seriously, as each appeared pro-se (probably meaning that they choose not to involve their insurers.)

“In 2006, the plaintiff retained the defendant Albert Van-Lare to represent him with respect to his application for a medical license in Florida. In February 2009, the plaintiff was granted a conditional license (hereinafter the February 2009 order), inter alia, requiring the plaintiff to practice for one year under the direct supervision of a licensed physician approved by the Florida Board of Medicine (hereinafter the Board). The plaintiff waived his right to a hearing regarding the Board’s decision to impose conditions on his license. The plaintiff practiced under the direct supervision of an approved physician for approximately eight months.

In June 2011, the plaintiff retained the defendant Bartlett, McDonough, Bastone & Monaghan, LLP (hereinafter Bartlett), to represent him with respect to his application to remove the conditions of the February 2009 order and obtain a permanent license to practice medicine without restriction in Florida. The plaintiff’s application to remove the conditions of the February 2009 order was denied. In February 2012, the Board granted temporary approval of a new physician, David A. Marcentel, to serve as the plaintiff’s supervisor. In April 2012, after a hearing attended by Bartlett, the plaintiff was granted final approval for Marcentel to serve as his supervisor, and a practice plan was developed. However, the Board subsequently discovered that the plaintiff had been working with Marcentel from November 2011 through February 2012, prior to the Board’s grant of temporary approval.

In August 2012, the plaintiff discharged Bartlett and again retained Van-Lare to represent him in connection with an administrative complaint filed against him for his violation of the February 2009 order. The plaintiff ultimately agreed to settle the proceeding against him and accept a reprimand and fine.

In September 2015, the plaintiff commenced this action to recover damages for legal malpractice and breach of contract. Van-Lare and Bartlett (hereinafter together the defendants) thereafter separately moved for summary judgment dismissing the complaint insofar as asserted against each of them. In an order dated October 4, 2019, the Supreme Court granted the defendants’ separate motions. The plaintiff appeals.”

“Here, the Supreme Court properly granted those branches of the defendants’ separate motions which were for summary judgment dismissing the cause of action alleging legal malpractice insofar as asserted against each of them. Each defendant made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence that they were not the proximate cause of the plaintiff’s alleged damages for loss of income (see id.). In opposition, the plaintiff failed to raise a triable issue of fact (see Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562).”

Gopstein v Bellinson Law, LLC 2024 NY Slip Op 02592 Decided on May 09, 2024
Appellate Division, First Department, which we discussed this week for the legal malpractice portion of the case, also had a Judiciary Law 487 component.

“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.”

“Although the motion court correctly dismissed the Judiciary Law § 487 claim, the proper basis for dismissal is that the claim was insufficiently pleaded given that it is supported by conclusory allegations of intentional deceptive conduct, rather than being duplicative of the legal malpractice (see Sabalza v Salgado, 85 AD3d 436, 438 [1st Dept 2011]).In any event, the court also properly dismissed plaintiff’s Judiciary Law § 487 claim as it is without merit. “Professional shortcomings or disagreements as to litigation strategy that do not involve intentional false statements in the context of litigation may sound in legal malpractice, but [*2]not in attorney deceit” under Judiciary Law § 487 (Urias v Daniel P. Buttafuoco & Assoc., PLLC, — NY3d —, 2024 NY Slip Op 01497, *5 [2024]; see also Bill Birds, Inc. v Stein Law Firm, P.C., 35 NY3d 173, 179 [2020]).”

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]).”

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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.”