The early days of the 20th century brought us the Robber barons, and the rise of corporations. The interconnectedness and remote nature of the relationships challenged the Courts, and led to a school of "better practice" business aspiration. Today, as long as a profit motive exists, there will be arrangements between persons which are created to mask the true nature of financial relationships. South Shore Neurologic Assoc., P.C. v Ruskin Moscou Faltischek, P.C. ; 2011 NY Slip Op 50801(U) ; ; Supreme Court, Suffolk County ; Pines, J. is a prime example. We urge you to read the facts to determine the relationship between the law firm and its numerous corporate clients. Here are the rules, put forth by Justice Pines, to determine whether there has been breach of fiduciary duty.
 

"In order to establish a claim for breach of fiduciary duty, a Plaintiff is required to demonstrate 1) the existence of a fiduciary relationship; 2) misconduct by the Defendant; and 3) damages directly caused by such conduct. Kurtzman v Bergstol, 40 AD3d 588, 835 NYS2d 644 ( 2d Dep’t 2007). Whether a fiduciary relationship exists between parties is necessarily fact specific. AG Capital Funding Partners, LP v State Street Bank and Trust Co, 11 NY3d 146, 866 NYS2d 578, 896 NE2d 91 (2008). An attorney stands in a fiduciary relationship to his or her client, Graubard Mollen Dannett & Horowitz v Moscovitz, 86 NY2d 112, 629 NYS2d 1009, 653 NE2d 1179 (1995), and is thus charged with a high degree of undivided loyalty to his or her client. Kelly v Greason, 23 NY2d 368, 296 NYS2d 937, 244 NE2d 456 [*5](1968). However, a violation of a disciplinary rule, without more, is insufficient to state an action for breach of fiduciary duty. Schwartz v Olshan Grundman Frome & Rozensweig, 302 AD2d 193, 753 NYS2d 482 (1st Dep’t 2003).

The statute of limitations for breach of fiduciary duty is dependent on the substantive remedy sought by the plaintiff. Thus, a six year statute applies, where equitable relief is sought; and a three year statute applies where the "injury to property" is the gravamen of the action. CPLR §§213(1), 214. The claim accrues, for statue of limitations purposes, when the fiduciary has repudiated his or her obligation. Westchester Religious Institute v Kamerman, 262 AD2d 131, 691 NYS2d 502 (1st Dep’t 1999). Westchester Religious Institute v Kamerman, 262 AD2d 131, 691 NYS2d 502 (1st Dep’t 1999). The doctrine of "continuous representation" tolls the running of this statute where the claim is brought against an attorney fiduciary but only so long as the defendant continued to represent the Plaintiff in connection with the transaction that is the subject of the action as opposed to general representation. Transport Workers Union of America Local 100 AFL-CIO v Schwartz, 32 AD3d 710, 821 NYS2d 53 (1st Dep’t 2006).

Under the Code of Professional Responsibility (now the Rules of Professional Conduct, 22 NYCRR 1200 et. seq.) a lawyer may not concurrently represent clients with adverse interests nor take on a new client whose interests are adverse to an existing client. Where an attorney represents multiple clients and a situation arises posing potential conflicts among them, the attorney may not undertake the representation of any of the clients unless continued involvement is with the full consent of all parties upon complete disclosure. Kelly v Greason, supra. Whether an attorney-client relationship exists depends on the actions of the parties, as there are no set of rigid rules as to what is required to form an attorney-client relationship. See, McLenithan v McLenithan, 273 AD2d 757, 710 NYS2d 674 (3d Dep’t 2000).

In an action for fraud, a plaintiff must demonstrate that the defendant misrepresented or omitted a material fact which was false and known to be false and made for the purpose of the other party to rely upon it, justifiable reliance by such party on the misrepresentation or material omission, and injury resulting therefrom. Ross v Louise Wise Services, 8 NY3d 478, 836 NYS2d 509, 868 NE2d 189 (2007); see, Graubard Mollen Dannett & Horowitz v Moscovitz, 86 NY2d 112, 629 NYS2d 1009, 653 NE2d 1179 (1995). In this vein, an attorney may be liable to non-clients for wrongful acts if guilty of fraud or collusion or of a malicious or tortious [*6]act. Koncelik v Abady, 179 AD2d 942, 578 NYS2d 717, Callahan v Callahan, 127 AD2d 298, 514 NYS2d 819 (3d Dep’t 1987). The statute of limitations for fraud is six years from the accrual of the claim or within two years from the actual or imputed discovery of the fraud. CPLR 213 (8), 203 (f); see, Trepuk v Frank, 44 NY2d 723, 405 NYS2d 452, 376 NE2d 924 (1978). As with the claim for breach of fiduciary duty, the continuous representation doctrine tolls the running of the statute of limitations against a professional defendant, but only so long as the defendant continues to represent the plaintiff in connection with the transaction and not merely the continuation of the general professional relationship. Transport Workers Union of America Local 100 AFL-CIO v Schwartz, supra. Punitive damages are not recoverable in the ordinary fraud case, but may be recovered where the fraudulent act is gross, involves high moral culpability and is aimed at the general public. Walker v Sheldon, 10 NY2d 401, 223 NYS2d 488, 179 NE2d 497 (1961).

Finally, one who owes a duty of fidelity or loyalty to another and is faithless in performance of such duty is generally disentitled to recover compensation for his services. Feiger v Iral Jewlry Ltd, 41 NY2d 928, 394 NYS2d 626, 363 NE2d 350 (1977). "
 

One of the more intriguing aspects of the attorney fee and disputes field is the interplay of a strongly put rule to attorneys, and the consequences of ignoring that rule. The rule: "You must have a retainer agreement." What happens when an attorney sues for fees, yet failed to have a retainer agreement as defined in 22 NYCRR 1215 et seq ? Really nothing. The Second Department in Seth Rubenstein PC v. Ganea, 41 AD3d 54 (2nd Dept, 2007)

"22 NYCRR 1215.1, otherwise known as the "letter of engagement rule," was promulgated by joint order of the appellate divisions, and applies to all civil actions where the amount in controversy is $3,000 or more. The rule requires attorneys to provide all clients with a written letter of engagement explaining the scope of legal services, the fees to be charged, billing practices to be followed, and the right to arbitrate a dispute under Rules of the Chief Administrator of the Courts (22 NYCRR) part 137 (see 22 NYCRR 1215.1 [b]; see generally Grossman v West 26th Corp., 9 Misc 3d 414 [2005]). The rule is also satisfied if the attorney and client execute a formal written retainer agreement reflecting the same information as required for a letter of engagement (see Beech v Gerald B. Lefcourt, P.C., 12 Misc 3d 1167[A] [2006]). The rule became effective on March 4, 2002 (see 22 NYCRR 1215.1 [a]; Brown Rudnick Berlack Israels LLP v Zelmanovitch, 11 Misc 3d 1090[A] [2006]), approximately seven weeks before Ganea retained Rubenstein for the guardianship matter underlying this appeal.

The language of 22 NYCRR 1215.1 contains no express penalty for noncompliance (see 22 NYCRR 1215.1; Beech v Gerald B. Lefcourt, P.C., supra; Matter of Feroleto, 6 Misc 3d 680, 682 [2004]). Indeed, the intent of rule 1215.1 was not to address abuses in the practice of law, but rather, to prevent misunderstandings about fees that were a frequent source of contention between attorneys and clients. This intent was described by Chief Administrative Judge Jonathan Lippman upon the rule’s adoption, that "this [rule] is not about attorney discipline in any way, shape or form, [*5]and we certainly do not expect in any{**41 AD3d at 61} significant degree there to be a large number of disciplinary matters coming out of this rule" (Caher, Rule Requires Clients Receive Written Letters of Engagement, NYLJ, Jan. 22, 2002, at 1, col 1, and quoted in Matter of Feroleto, supra at 683). The purpose of the rule therefore is to aid the administration of justice by prodding attorneys to memorialize the terms of their retainer agreements containing basic information regarding fees, billing, and dispute resolution which, in turn, minimizes potential conflicts and misunderstandings between the bar and clientele. "

In Roth Law Firm, PLLC v Sands we see the tortured path analysis must take. Justice Madden of Supreme Court, New York County must decide what services were being offered by plaintiff law firm, who received the services and in what setting the services were offered, and then, determine the quantum meruit aspects of the whole case.

Mr. San LLC v Zucker & Kwestel LLP   2012 NY Slip Op 32119(U)   August 2, 2012   Sup Ct, Nassau County   Docket Number: 601065/11   Judge: Stephen A. Bucaria is an interesting example of the "whose lawyer is it" question that frequently arises in the formation of new businesses. 

"This is an action for aiding and abetting fraud. Plaintiffs invested substantial amounts of money with Gershon Barkany who held himself out as a financial advisor and real estate investor. Plaintiffs allege that Barkany represented that the money was to be used to fund real estate loans and other investments but Barkany was actually running a Ponzi scheme. Plaintiffs further allege that Barkany presented defendants Zucker & K westel LLP and Steven K westel as his attorneys in connection with the sham real estate transactions, and the firm accepted wire transfers of plaintiffs ‘ funds into its escrow account."

"Absent fraud, collusion, malicious acts, or other special circumstances, an attorney is not liable to third parties, for harm caused by professional negligence, unless there is a relationship sufficiently approaching privity between the attorney and the alleged client Schneider v Finman 15 NY3d 306 309 (2010)). This rule protects attorneys from legal malpractice suits by indeterminate classes of plaintiffs whose interests may be at odds with the interests of the acknowledged client (Id). Since an attorney-client relationship does not depend upon a formal retainer agreement or upon payment of a fee, the court must look to the words and actions of the parties (Moran v Hurst 32 AD3d 909, 911 (2d Dept 2006)). The unilateral belief of a plaintiff alone does not confer upon him or her the status of a client (Id). Plaintiffs allege that Barkany presented defendants as his attorneys, rather than the attorneys for the plaintiffs. An attorney for an organization is not the attorney for its members (Professional Conduct Rule 1. 13). However, it appears that no company had been formed at the time that plaintiffs made their investment. At the time that plaintiffs invested
their funds, their interests seemed aligned with Barkany , at least as to the expected profitability of the venture. Moreover, the fact that Kwestel borrowed money from Barkany suggests that there may have been collusion between client and attorney and perhaps even knowledge on Kwestel’ s part as to Barkany s fraud upon the plaintiff. In these circumstances, the court must give plaintiffs the benefit of the possible favorable inference that an attorney-client relationship arose when defendants accepted plaintiffs ‘ money into their escrow account. Defendants’ motion to dismiss plaintiffs ‘ malpractice claim for a defense founded upon documentary evidence and failure to state a cause of action is denied. Fiduciary liability is not dependent solely upon an agreement, but results when one of the parties is under a duty to act for or give advice for the benefit of the other upon matters within the scope of the relationship EBC I, Inc v Goldman Sachs 5 NY3d 11 , 19-
(2005)). An attorney for a limited liability company may have a fiduciary duty towards an individual member, at least with respect the member s share of distributions of the company’s profits Kurtzman v Burgol 40 AD3d 588 (2d Dept 2007)). As noted, it appears that no company had been formed at the time that plaintiffs made their investment. Nevertheless, having accepted plaintiffs ‘ money into escrow , defendants may have had a fiduciary duty to make sure that the funds were applied to the real estate investment. Defendants’ motion to dismiss plaintiffs ‘ breach of fiduciary duty claim for a founded upon documentary evidence and failure to state a cause of action is  denied."

The decision in this case is straightforward, but gives practitioners little practical advice on how to word and present an expert’s affidavit. In Giardina v Lippes, 2010 NY Slip Op 06834;; Appellate Division, Fourth Department we see two things. The first is that the two summary judgment motion rule is not really a rule at all; it is really just guidance to the Court. Two motions for summary judgment might be entertained after all.
 

The second issue we see is that of the quality of expert opinions in summary judgment. Once, the rule was that courts scrutinize whether movant demonstrates prima facie entitlement to summary judgment, and if so, whether opponent demonstrates material questions of fact that continue to require resolution by the trier of fact.

The quality of an expert’s opinion was sacrosanct, since facts may not be debated in a motion for summary judgment. Here, and in many other cases the kicker is when a court feels permitted to rule out the expert’s opinion as "conclusory." In this case, as in many other appellate decisions, no time is taken to explain why the particular affidavit was "conclusory" rather than permissible. What makes the difference?

Here, defendant’s expert presented a "good" affidavit, and plaintiff’s expert presented a "conclusory" affidavit in a lawn care products liability case. How does one tell the difference?
 

This is a convoluted case, which started as a products liability-fall from a ladder- case, morphed into a legal malpractice case, went to trial and was prematurely dismissed during plaintiff’s case, was reversed on appeal and now comes back on a preclusion motion. The problem in Burbige v Siben & Ferber   2012 NY Slip Op 32086(U)   July 30, 2012   Sup Ct, Nassau County   Docket Number: 010334/07   Judge: Randy Sue Marber is that there is no ladder.  In this case, no ladder, no proof that the ladder was defective. Whose fault is it?

"As to the order of preclusion, this Court begins with noting that, here, the Appellate Division has not only directed a new trial but has specifically set forth the evidentiary issue inadequately established at the original trial by the Plaintiff; to wit plaintiff() fail ( ed) 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. Consequently, the issue becomes whether the Plaintiff should be permitted to now present evidence that it could have properly presented at the first trial, the expert affidavit necessary to establish his success in the underlying products liability action. 

Based upon the papers presented for this Court’ s consideration, this Court finds that the Plaintiff s failure to disclose his expert was in fact willful and intentional. Indeed the Appellate Division found that the Plaintiff s offer of proof was inadequate and wholly insufficient due to the absence of an expert affidavit demonstrating the merits of the underlying products liability action. Perhaps more critical is the fact that counsel for the Plaintiff, in support of his cross-motion infra again states that "the case law and the circumstances do not war ant the plaintiff to obtain an expert" (Aff. In Supp. Of Cross- Motion 6). Furthermore, the Plaintiff has failed entirely, even at this juncture in opposition
to the Defendants s instant motion, to proffer a reasonable excuse, under the circumstances
for his delay in furnishing name and affidavit of his expert (CPLR ~ 3101 (d) (I); Wartski v. C.W Post Campus of Long Is. Univ. 63 A.DJd 916 917 (2 Dept. 2009)). Moreover the Defendants wil clearly be prejudiced should this Court determination be to permit the Plaintiff to now submit the name and testimony of their expert. Although a new trial has been granted by the Appellate Division and further that the Appellate Division has specifically set forth the evidentiary issue inadequately
established at the original trial, the fact is that the Plaintiff has, nonetheless, failed to meet his burden, under CPLR ~ 3101 that would sufficiently oppose the Defendants’ entitlement to preclusion. In fact, the Plaintiff has even failed to establish his burden under 22 NYCRR 202.21 (d) that would permit this Court to award post-note of issue discovery (cf Scanga Family Practice Assocs. of Rockland, P. c., 2006 WL 6822760 (Sup. Ct. Rockland 2006); Bierzynskiv. New York Central Railroad Co. 59 Misc. 2d 315 (Sup. Ct. Erie 1969) aff’ d29 2d 804 (1971) rearg. denied 30 N. 2d 790 (1972)).

Counsel for the Plaintiff bases his entire motion on a spoliation of the evidence argument; that is, counsel for the Plaintiff submits that allegedly for more than 16 years counsel for the Defendants, failed to inspect and preserve the defective ladder, failed to  obtain expert reports with respect to the defectively manufactured ladder, and effectively destroyed the key physical evidence of the defective ladder prior to the commencement of the Plaintiff s legal malpractice action. Spoliation of evidence is a factual and legal question in this malpractice case involving an underlying products liability claim. Spoliation of evidence occurs where a litigant intentionally or negligently disposes of crucial items of evidence before his or her adversaries have any opportunity to inspect them (Kirkland v. New York City Housing Authority, 236 A. 2d 170 (1st Dept. 1997)).

The underlying action was one sounding in products liability. The Plaintiff claims herein that the product that was alleged to be defectively designed or manufactured the ladder, was negligently or intentionally lost or destroyed subsequent to his accident and before anyone had an opportunity to inspect it. Although the Plaintiff charges his former attorneys in the underlying action, the Defendants herein, with spoliation of evidence, the Plaintiff makes no attempts to show that the ladder in question was ever in the possession of the Defendants or that it existed or was available when they were retained. "

How far may an attorney go when dealing with a client before the line is crossed and  extreme emotional distress may be charged?  InBlumencranz v Botter  2012 NY Slip Op 32089(U)
July 27, 2012  Sup Ct, Nassau County  Docket Number: 15489/11  Judge: Joel K. Asarch  we see behavior that is "utterly failing in propriety and professionalism, is not so outrageous as to exceed all reasonable bounds of decency as a matter of law. Insofar as plaintiff includes alleged professional failures" damages for the intentional infliction of emotional distress are not recoverable in  a legal malpractice action Epifano v. Schwartz 279 AD2d 501 , 503 (2d
Dept 2001)), 

"Plaintiff, Lisa Blumencranz, retained the services of defendant, Allan S. Botter, to represent her in a divorce proceeding. Blumcrantz alleges that her former husband presented her with the names of two attorneys and advised her to choose one of them "if she wished the matter to proceed smoothly . He allegedly warned that if she retained an attorney of her own choosing, the choice would result in greater difficulty" for her. Blumencranz avers that her former husband had "been
in contact" with the attorney she chose, defendant Alan S. Botter, before she retained him. He had reached "an understanding" with Botter that he would be "paid directly by her then-husband" for
representing her.

"She alleges that Botter "belittled and demeaned" her, and mocked her when she begged" for changes to the child custody agreement. She alleges that the parties had joint custody but final decisions were with the husband, and that no set holiday schedule was included. The agreement also allowed the children "to decide when and if’ they would speak to her. She alleges that her attorney told her that is how things were and to "deal with it.

Addressing the emotional injure causes of action, the tort of intentional infliction of emotional distress predicates liability upon the basis of "extreme and outrageous conduct which so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society (Freihofer v. Hearst Corp. 65 NY2d 135 (1985)). The requirements are "rigorous, and difficult to satisfy" (Howell New York Post Co. 81 NY2d 115, 122 (1993)), as even conduct which may be characterized as "unacceptable and socially repugnant" does not "rise to the level of atrocity" (Shea v. Cornell University, 192 AD2d 857 (3d Dept 1993)). The wrongful conduct must consist of more than "insults" or "indignities" and must be so "shocking and outrageous" as to "exceed all reasonable bounds of decency (Nestlerode v. Federal Ins. Co., 66 AD2d 504 508 (4 Dept 1979), app denied 48 NY2d 604 (1979)). An example of conduct which survived the difficult threshold for atrocious conduct may be found in Bunker Testa, 234 AD2d 1004 (4 Dept 1996) There the complaint alleged inter alia [* 4]  yelling and gesturing obscenely at plaintiff , following her home, refusing to leave the premises and significantly, "following her children. .. and telling her that he knew where the children went to school and when they got out of school" (Id).  Here, the nature of plaintiff’s alleged complaints in the cause of action for the intentional infliction of  emotional harm amount to insult emotional distress and inadequate legal representation. The alleged conduct, while utterly failing in propriety and professionalism, is not so outrageous as to exceed all reasonable bounds of decency as a matter of law.  Insofar as plaintiff includes alleged professional failures "( d)amages for the intentional infliction of emotional distress
are not recoverable in a legal malpractice action" (Epifano v. Schwartz 279 AD2d 501 , 503 (2d
Dept 2001)),. 

Something went really wrong with the settlement in a case against A& T Healthcare, LLC by the New York Healthcare Facilities Worker’s Compensation Trust.  Settlement (and a release) were followed by several other cases, in which A & T had to pay significant money.  It sued its attorneys in the case of A & T Healthcare, LLC v Markstein    2012 NY Slip Op 51513(U)   Decided on August 7, 2012   Supreme Court, Rockland County   Jamieson, J.    Plaintiff v. Defendant aside, now defendant seeks to bring in an "expert" it relied upon, on a theory of contribution and indemnity.  Or should it be negligence.  The difference is important because it is more than 3 years, but less than 6 years.
 

"Now, third-party defendants seek to dismiss the third-party complaint on statute of limitations grounds. They argue that although framed as claims for contribution and indemnification, which have a six-year statute of limitations, third-party plaintiffs’ claims are really for malpractice (which has a three-year statute of limitations). Third-party plaintiffs, of course, disagree. Third-party plaintiffs argue that "a plain examination of the Third-Party Complaint reveals that the claims sets forth against the Third-Party Defendants are for contribution and [*3]indemnification not for professional malpractice." Plaintiff agrees with this assertion, arguing that "the limitations period for a claim for contribution/indemnification is six years regardless of the nature of the actual allegation of wrongdoing and its contaminant [sic] limitations period."

Having reviewed the law on claims for contribution, it appears that the Court need not reach the issue of the statute of limitations for the cause of action for contribution in this case, which is essentially for breach of contract. Structure Tone, Inc. v. Universal Services Group, Ltd., 87 AD3d 909, 929 N.Y.S.2d 242 (1st Dept. 2011) (subcontractor’s alleged tort claims were really based on contract). Contribution "is unavailable in the context of a contract action. As the Court of Appeals has noted, purely economic loss resulting from a breach of contract does not constitute injury to property’ within the meaning of New York’s contribution statute.’" Pilewski v. Solymosy, 266 AD2d 83, 698 N.Y.S.2d 660 (1st Dept. 1999). The First Department has expanded on this holding, in the case of Children’s Corner Learning Center v. A. Miranda Contracting Corp., 64 AD3d 318, 879 N.Y.S.2d 418 (1st Dept. 2009). In that case, the Court dismissed a third-party claim for common-law contribution because the underlying claim sought purely economic damages.

Turning to the Second Cause of Action, which seeks indemnification from Mr. Gale and National Risk Services, Inc., the complaint states that Mr. Gale "held himself out as an expert. . . [and third-party plaintiff] relied on the expert advice provided by Monte J. Gale in recommending that A & T agree to execute the Settlement Agreement. . . ." Based on this allegedly negligent advice, A & T entered into the ill-fated Settlement. The complaint states that it seeks indemnification from Mr. Gale should third-party plaintiffs be found liable for malpractice. Third-party defendants argue that this cause of action is time-barred, because it really is seeking damages for malpractice.

Having read all of the papers, the Court finds that third-party defendants have not adequately addressed the issue of whether this claim is actually one for malpractice or negligence,[FN2] rather than a claim for indemnification. Moreover, the motion fails to address the issue of whether a timely indemnification claim can lie when it is based on malpractice or negligence claims which would be untimely. See generally Germantown Cent. School Dist. v. Clark, Clark, Millis & Gilson, AIA, 294 AD2d 93, 743 N.Y.S.2d 599 (3d Dept. 2002) ("Permitting plaintiffs to add these tort claims by recasting them in indemnification and restitution language would improperly circumvent the Statute of Limitations’ bar on these claims."). Accordingly, the Court denies third-party defendants’ motion with respect to the Second Cause of Action, without prejudice. "

Attorneys can easily be substituted in and out of cases, and personal injury matters are no exception. When client goes from attorney 1 to attorney 2 to attorney 3 the outlook for the case may sometimes be good, and in this case bad. Client was involved in a car accident, and hired attorney 1 to handle the case. Attorney 1 did so, but apparently never looked to see who owned the car. Owner was a rental car company, with apparent unlimited liability and assets. Attorney 2 takes over the case and finds out at a deposition that defendant did not own the car. Attorney 2 takes their time and does nothing. Attorney 2 is substituted out and Attorney 3 immediately makes a motion to add the owner. Attorney 3 does not succeed. is there a good cause of action against attorney 2? The statute of limitations is long over for attorney 1. Answer ? No. in Snolis v Clare
2011 NY Slip Op 01455 ;  Appellate Division, Second Department
the Court writes:

"The plaintiffs failed to demonstrate their prima facie entitlement to judgment as a matter of law because they failed to establish that any negligence on the part of the defendants in failing to move for leave to amend the complaint in the personal injury action to add the owner as a defendant, immediately upon learning of the owner’s identity, was the proximate cause of their alleged damages (see Greene v Sager, 78 AD3d 777; Erdman v Dell, 50 AD3d 627; see also Buran v Coupal, 87 NY2d 173, 180; Flederbach v Fayman, 57 AD3d 474). Accordingly, the Supreme Court properly denied the plaintiffs’ motion.

The Supreme Court improvidently exercised its discretion in denying, as untimely, that branch of the defendants’ cross motion which was for summary judgment dismissing the complaint insofar as asserted against them. While the defendants’ cross motion was made more than 120 days after the note of issue was filed and, therefore, was untimely (see Brill v City of New York, 2 NY3d 648), an untimely cross motion for summary judgment may be considered by the court where, as here, a timely motion for summary judgment was made on nearly identical grounds (see Grande v Peteroy, 39 AD3d 590, 592; Lennard v Khan, 69 AD3d 812, 814; Bressingham v Jamaica Hosp. Med. Ctr., 17 AD3d 496, 497). In such circumstances, the issues raised by the untimely cross motion are already properly before the court and, thus, the nearly identical nature of the grounds may provide the requisite good cause (see CPLR 3212[a]) to review the merits of the untimely cross motion (see Grande v Peteroy, 39 AD3d at 592). Notably, a court, in deciding the timely motion, may search the record and award summary judgment to a nonmoving party (see CPLR 3212[b]).

The defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the legal malpractice cause of action insofar as asserted against them by demonstrating that any negligence on their part did not proximately cause the plaintiffs’ alleged damages (see Von Duerring v Hession & Bekoff, 71 AD3d 760). It is true that the more than one-year delay in moving for leave to amend the complaint in the personal injury action to add the owner as a defendant, which was attributable to the defendants’ failure to seek that relief, prejudiced the owner and, thus, was a sufficient basis for denying the motion for leave to amend the complaint in the personal injury action (see Snolis v Biondo, 21 AD3d 546). However, the defendants demonstrated that even if they had expeditiously made such a motion in April 2003, immediately upon learning of the owner’s identity, the motion could not have been granted. "