Big corporate client goes to Big white shoe law firm and believes that the Big litigator there will take and handle the case.  It does not happen.  A lesser light handles the case, and the Big Corporate client is unhappy.  Now what?

Matter of Matter of G.K. Las Vegas Ltd. Partnership v Boies Schiller & Flexner LLP   2012 NY Slip Op 04831   Decided on June 14, 2012   Appellate Division, First Department.
 

"In this proceeding alleging the law firm’s breach of performance of a retainer agreement, including breach of an alleged oral agreement to have a particular attorney in its firm serve as lead counsel in an underlying matter, the client failed to preserve its arguments that the law firm did not meet its burden of demonstrating that the client fully understood the terms of the parties’ retainer agreement, and that public policy rendered such retainer agreement unenforceable, as these arguments were not sufficiently brought to the attention of the arbitrator. (see Edward M. Stephens, M.D., F.A.A.P. v Prudential Ins. Co. of Am., 278 AD2d 16 [2000]; see also Matter of Joan Hansen & Co., Inc. v Everlast World’s Boxing Headquarters Corp., 13 NY3d 168, 173-174 [2009]). The client did not explicitly argue that the law firm violated public policy by failing to ensure that the client fully understood the terms of the parties’ retainer agreement. It only argued that parol evidence was needed because the retainer agreement, as written, was allegedly incomplete and/or ambiguous.

Were we to reach the merits of the client’s public policy argument, we would find it unavailing. The parties agreed to arbitrate any disputes arising from their retainer agreement, and there is no basis to conclude that the asserted public policy ground (requiring a client’s full knowledge and understanding of an attorney-client retainer agreement) was violated. The arbitrator’s award dismissing the client’s challenge to the legal fees that were due in accordance with the express terms of the parties’ amended written retainer agreement had a rational basis, inasmuch as the Arbitrator found the written retainer arrangement to be unambiguous and to constitute a fully integrated agreement that would satisfy the requirements of 22 NYCRR 1215.1 (see generally Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223-224 [1996]). The arbitrator’s rejection of the sophisticated client’s argument that sought inclusion of claimed oral terms that would modify the clear terms of the amended retainer agreement was rationally based in contract principles, including New York’s parol evidence rule, [*2]and the criteria for allowing modification of written terms without altering them was not established by the client (see Mitchill v Lath, 247 NY 377 [1928]; Chemical Bank v Weiss, 82 AD2d 941 [1981], appeal dismissed 54 NY2d 831 [1981]). Since the terms of the fully integrated retainer agreement were unambiguous, there was no basis to consider parol evidence (see Slotnick, Shapiro & Crocker, LLP v Stiglianese, 92 AD3d 482 [2012]; Moore v Kopel, 237 AD2d 124, 125 [1997]).

Moreover, the client’s argument that the arbitrator, in deciding the dismissal motion, denied it "fundamental fairness" by refusing to accept the truth of its allegations regarding the oral promise, including that the parties intended this oral promise to be a component of the parties’ retainer agreement, thereby precluding it from offering evidence to demonstrate the parties’ understanding in regard to the alleged oral promise, is unavailing. It was within the province of the arbitrator to find, as a matter of law, that the retainer agreement was not ambiguous (see W.W.W Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]), notwithstanding the client’s claims that alleged oral promises were intended to be added as components of the written retainer agreement. Since an arbitrator’s award ordinarily will not be vacated even if founded upon errors of law and/or fact (see Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, 479-480 [2006], cert dismissed 548 US 940 [2006]), there is no basis to vacate this award founded upon applicable contract principles (see Szabados v Pepsi Cola Bottling Co. of N.Y., 191 AD2d 367 [1993]). "

 

When clients depend upon the expertise of an attorney, and then end up with a bad result, they can successfully plead legal malpractice.  Does a client settle the personal injury case or litigate on?  Depending on how the attorney advises the client, there may or may not be legal malpractice.  Here is an example.

Polanco v Greenstein & Milbauer, LLP    2012 NY Slip Op 04385    Decided on June 7, 2012
Appellate Division, First Department   concerns a case in which plaintiff was struck in the neck by a piece of lumber.  She alleged that the defendant was negligent in urging her to settle the case without a MRI and telling her that a MRI would not lead to a more favorable result.  She settled the case for $ 20,000 only to find out later that she was permanently disabled.
 

"after settling the case for $20,000, she obtained an MRI showing a disc herniation that required surgical intervention; that she remains permanently disabled; that defendant’s negligence proximately caused her to sustain damages by not gaining the fair value for her case; and that she would have been successful in the underlying action had defendants exercised due care. These allegations are sufficient to state a claim for legal malpractice (see Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435, 435 [2011]; see generally Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083 [2005], lv denied 6 NY3d 701 [2005]). Plaintiff was not required to [*2]show a likelihood of success in the underlying action, but was "required only to plead facts from which it could reasonably be inferred that defendant’s negligence caused [her] loss" (Garnett, 82 AD3d at 436). Plaintiff plead such facts. "

Gershkovich v Miller, Rosado & Algios, LLP    2012 NY Slip Op 04318    Decided on June 6, 2012  Appellate Division, Second Department  is a legal malpractice case which recently went to a motion for summary judgment.  Each side gave it their best shot, and the result was a stand-off.
 

"Here, the Supreme Court properly determined that the defendant Arthur Welsher failed to establish, prima facie, that the plaintiffs Tibor Gershkovich and Galina Gershkovich (hereinafter together the respondents) were unable to prove the essential elements of their legal malpractice cause of action insofar as asserted against that defendant (see Gelobter v Fox, 90 AD3d [*2]829, 831; Suppiah v Kalish, 76 AD3d 829, 832; Ali v Fink, 67 AD3d 935, 937; Terio v Spodek, 25 AD3d 781, 785; see also M & R Ginsburg, LLC v Segal, Goldman, Mazzotta & Siegel, P.C., 90 AD3d 1208, 1209).

The Supreme Court also properly determined that although the defendant Miller, Rosado & Algios, LLP, established its prima facie entitlement to judgment as a matter of law dismissing the legal malpractice cause of action insofar as asserted by the respondents against it, the respondents raised triable issues of fact in opposition (see Silva v Worby, Groner, Edelman, LLP, 54 AD3d 634; see also Conklin v Owen, 72 AD3d 1006, 1007; Nelson v Roth, 69 AD3d 912, 913; Boglia v Greenberg, 63 AD3d at 975; Mourtil v Korman & Stein, P.C., 33 AD3d 898, 900).

Accordingly, the Supreme Court properly denied those branches of the defendants’ motions which were for summary judgment dismissing the legal malpractice cause of action insofar as asserted by the respondents against each of them. "

 

In Englert v Schaffer   2012 NY Slip Op 04602   Decided on June 8, 2012   Appellate Division, Fourth Department  the claim was that defendants knew of a settlement offer and failed to tell plaintiff.  Is that malpractice? 
 

"We reject defendants’ contention that summary judgment in their favor is required on the ground that plaintiffs could not establish that they would have accepted a settlement offer made in the underlying personal injury case if Schaffer had notified them of that offer. When the alleged negligence of defendant involves a failure to communicate a settlement offer, the plaintiff must "demonstrate that, but for the [defendant’s] alleged negligence, [plaintiff] would have accepted the offer of settlement and would not have sustained any damages" (Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562, lv denied 100 NY2d 511). Even assuming, arguendo, that defendants met their initial burden, we conclude that plaintiffs raised a triable issue of fact whether they would have accepted the settlement offer if Schaffer had promptly communicated it to them (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324).
"

In this Third Department case,Kreamer v Town of Oxford   2012 NY Slip Op 04445   Decided on June 7, 2012   Appellate Division, Third Department    plaintiff’s complaint was dismissed, even after the AD gave it a liberal reading, and attempted to construct a pleading for plaintiff.

"Plaintiffs failed to state a cause of action against defendant. The complaint does not list legal malpractice as a separate cause of action (see CLPR 3014), and all of the allegations concerning defendant are contained in the "statement of facts" portion of the complaint rather than under a specified cause of action. Even accepting the allegations as true and liberally construing the complaint to be alleging legal malpractice against defendant, the allegations are insufficient to make out a prima facie case. An action for legal malpractice requires proof that the attorney failed to exercise the reasonable skill and knowledge ordinarily possessed by a member of the legal profession, that this negligence was the proximate cause of the client’s loss or injury, and that the client sustained actual damages (see M & R Ginsburg, LLC v Segal, Goldman, Mazzotta & Siegel, P.C., 90 AD3d 1208, 1208-1209 [2011]). Plaintiffs allege that defendant knew or should have known of the Town’s zoning ordinances that could affect plaintiffs’ rights as landowners, but failed to advise them of those rights. They further allege that defendant’s actions inflicted emotional distress and caused them to expend money to save their house. These allegations do not set out the standard of skill required of an attorney or state that defendant’s actions fell below that skill level (see Leder v Spiegel, 9 NY3d 836, 837 [2007], cert denied 552 US 1257 [2008]; compare Canavan v Steenburg, 170 AD2d 858, 859 [1991]; see also Kolev and Collins, The Importance of Due Diligence: Real Estate Transactions in a Complex Land Use World, 84 NY St BJ 24 [March/April 2012]). Thus, defendant was entitled to have the complaint against him dismissed. "

 

We remember some Shakespeare quote about how Cesare’s wife must be more worthy than any other politician/emperor’s wife.  Similarly, here a legal malpractice case is dismissed for failure to file a complaint after a demand had been made.  In Dayan v Darche   2012 NY Slip Op 04312   Decided on June 6, 2012   Appellate Division, Second Department  the Court writes:
 

"To avoid dismissal of the action for failure to serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012(b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a potentially meritorious cause of action (see Perez-Faringer v Heilman, 79 AD3d 837, 838; Gibbons v Court Officers’ Benevolent Assn. of Nassau County, 78 AD3d 654, 654; Pristavec v Galligan, 32 AD3d 834, 834; Maldonado v Suffolk County, 23 AD3d 353, 353-354). Here, the plaintiff failed to proffer any excuse for her lengthy delay in serving the complaint. Furthermore, she failed to establish that she had a potentially meritorious cause of action (see generally Rosner v Paley, 65 NY2d 736, 738; Allen v Potruch, 282 AD2d 484, 484-485; Iannacone v Weidman, 273 AD2d 275, 276-277; Rubinberg v Walker, 252 AD2d 466, 467). Accordingly, the Supreme Court properly granted the defendant’s motion to dismiss the action.

In addition, the plaintiff’s motion for leave to renew her opposition to the defendant’s motion to dismiss the action was properly denied. In support of her motion, the plaintiff proffered her attorney’s affirmation in an attempt to provide a reasonable excuse for the delay in serving the complaint. However, the attorney’s affirmation, which, inter alia, proffered an unsubstantiated excuse of disabling illnesses, was insufficient to warrant a change of the prior determination (see CPLR 2221[e][2]; Cynan Sheetmetal Prods., Inc. v B.R. Fries & Assoc., Inc., 83 AD3d 645, 646; Mattera v Capric, 54 AD3d 827, 828; Borgia v Interboro Gen. Hosp., 90 AD2d 531, affd 59 NY2d 802; Wolfe v Town of Hempstead, Dept. of Parks & Recreation, 75 AD2d 811, 812). Moreover, the plaintiff failed to offer a reasonable justification for failing to present this affirmation in opposition [*2]to the defendant’s original motion (see CPLR 2221[e][3]; Brown Bark I, L.P. v Imperial Dev. & Constr. Corp., 65 AD3d 510, 512; Zarecki & Assoc., LLC v Ross, 50 AD3d 679, 680; Reshevsky v United Water N.Y., Inc., 46 AD3d 532, 533). "

 

Amalfitano v. Rosenberg  rewrote the law on Deceit and attorneys, and revitalized a statute that was written in 1275.  It is the oldest surviving statute in Anglo-American jurisprudence.  Now, the aftermath for the attorney accused of deceit.

Matter of Rosenberg, M-3654, NYLJ 1202557354417, at *1 (App. Div. 1st, Decided June 5, 2012)

Before: Andrias, J.P., Saxe, Sweeny, Catterson and Acosta, JJ.Decided: June 5, 2012

Jorge Dopico, Chief Counsel, Departmental Disciplinary Committee, New York (Scott D. Smith, of counsel), for petitioner.

Richard M. Maltz, for respondent.

Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Armand J. Rosenberg, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the First Judicial Department on April 2, 1951.

 

 

*2

PER CURIAM

 

Respondent Armand J. Rosenberg was admitted to the practice of law in the State of New York by the First Judicial Department on April 2, 1951. At all time relevant to this proceeding, respondent’s registered office was within the First Department.

By order dated October 13, 2010 this Court granted the Departmental Disciplinary Committee’s petition for an order giving collateral estoppel effect to an April 2006 decision by the U.S. District Court for the Southern District of New York in the case of

Amalfitano v. Rosenberg

(428 F Supp 2d 196 [SDNY 2006], affd 572 F3d 91 [2d Cir 2009]), in which respondent was found to have engaged in fraudulent conduct, in violation of New York Judiciary Law §487, and imposed treble damages in the amount of $268,245.54. Our order further found that respondent’s conduct violated DR 1-102(A)(4) (conduct involving dishonesty, fraud, deceit or misrepresentation), DR 1-102(A)(5) (conduct prejudicial to the administration of justice), DR 1-102(A)(7) (conduct that adversely reflects on respondent’s fitness as a lawyer), DR 7-102(A)(4) (knowingly using perjured testimony), and DR 7-102(A)(5) (knowingly making a false statement of law or fact), and referred the matter to a Hearing Panel for a sanction hearing. The Committee is now seeking an

*3

order confirming the Hearing Panel’s findings of fact, conclusions of law and recommendation of a one-year suspension.

 

This matter stems from respondent’s representation of Peter Costalas, who, along with his two brothers, James and John, were members of a family partnership that owned five buildings and twelve restaurants. Peter diverted millions of dollars in partnership finds and mortgaged buildings by use of forged signatures in order to cover losses incurred in connection with his personal trading in stock options. As a result, James and John commenced an action against Peter and his brokers. In August 1993, respondent negotiated an agreement on Peter’s behalf in which Peter, among other things, assigned and transferred his interest in the partnership to John, and in return, was dismissed as a defendant in the litigation.

Thereafter, Vivia Amalfitano, James’ daughter, purchased the partnership’s remaining building and restaurant from John and James. In May 2001, respondent commenced an action in New York County, Supreme Court, naming Vivia and her husband, Gerard Amalfitano, Esq., as defendants, alleging that they defrauded John and James into conveying the partnership’s remaining property and business, and that Peter was still a partner. The action was eventually dismissed during trial. Respondent then unsuccessfully appealed the trial court’s order denying his motion to vacate (see

Costalas v. Amalfitano,

23 AD3d 303 [2005]).

 

 

*4

In March 2004, the Amalfitanos commenced the above-mentioned federal action against respondent alleging that respondent’s commencement and prosecution of the state court action against them constituted a violation of Judiciary Law §487.

 

We agree with the recommendation of the Panel that respondent should be suspended for one year
 

ENGLAND and MIDWEST GEMS, INC., -against- . FELDMAN and FELDMAN LAW GROUP, Defendants.11 Civ. 1396 (CM) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; 2011 U.S. Dist. LEXIS 36382; March 28, 2011, is as good a primer in the general and substantive laws of legal malpractice as one might read. There, Judge McMahon tells us:

"Plaintiffs’ First Cause of Action alleges a legal malpractice claim against Defendants. Defendants argue that Plaintiffs have not pleaded facts tending to show that Defendants were negligent or that Defendants caused Plaintiffs harm. Yes, they have."

"Thus, a plaintiff "must . . . establish[] that the attorney failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community." Stokes v. Lusker, 2009 U.S. Dist. LEXIS 23471, 2009 WL 612336, at *10 (S.D.N.Y. Mar. 4, 2009) (quoting Hatfield v. Herz, 109 F. Supp. 2d 174, 180 (S.D.N.Y. 2000)).

"To [*10] establish the elements of proximate cause and actual damages for a claim of legal malpractice, the plaintiff must show that ‘but for the attorney’s negligence, what would have been a favorable outcome was an unfavorable outcome.’" Stonewell Corp., 678 F. Supp. 2d at 209 (quoting Zarin v. Reid & Priest, 184 A.D.2d 385, 585 N.Y.S.2d 379, 381 (N.Y. App. Div. 1992)). "The failure to establish proximate cause requires dismissal of the legal malpractice action, regardless of whether it is demonstrated that the attorney was negligent." Schwartz v. Olshan Grundman Frome & Rosenzweig, 302 A.D.2d 193, 753 N.Y.S.2d 482, 486 (N.Y. App. Div. 2003).
 

Plaintiffs allege facts tending to show that Feldman’s conduct in the Underlying Lawsuit fell below the standard of care and diligence commonly possessed by other members of the bar. Moreover, Plaintiff’s allege that Feldman’s negligence was the proximate cause of Plaintiffs’ damages—specifically, the loss of certain trademark rights in the "Iceman" mark (Compl. ¶ 47), the inability to assert valid cross-claims and third-party claims against other parties (id. ¶ 40), and the payment of unnecessary legal fees (id. ¶ 47). Plaintiffs’ allegations are sufficient to plead a claim for legal malpractice in New York as they allege facts tending to show attorney negligence by Defendants and that Defendants’ negligence is the proximate cause of the damage Plaintiffs’ suffered.

 

Under New York law, where a claim for negligence, breach of fiduciary duty, breach of contract, or failure to disclose a conflict of interest are premised on the same facts and seek the identical relief as a claim for legal malpractice, these claims are "redundant and should be dismissed." Nordwind, 584 F.3d at 432-33 (quotation marks omitted); accord Amadasu v. Ngati, 2006 U.S. Dist. LEXIS 19654, 2006 WL 842456, at *9 (E.D.N.Y. Mar. 27, 2006) (dismissing plaintiff’s claims for breach of contract, breach of fiduciary duty, negligent misrepresentation, negligent performance, and gross negligence as duplicative). Plaintiffs’ claims for breach of contract and breach of the implied covenant of good faith and fair dealing arise from the same facts as the legal malpractice claim in and do not allege any distinct damages other than the damages suffered as a result of the legal malpractice. See Financial Services Vehicle Trust v. Saad, 72 A.D.3d 1019, 900 N.Y.S.2d 353, 354 (N.Y. App. Div. 2010); [*14] see also Joyce v. Thompson Wigdor & Gilly LLP, 2008 U.S. Dist. LEXIS 43210, 2008 WL 2329227, at *14 (S.D.N.Y. June 3, 2008) (citing Norwind v. Rowland, 2007 U.S. Dist. LEXIS 75764, 2007 WL 2962350, at *4 (S.D.N.Y. Oct. 10, 2007)) (breach of fiduciary duty and breach of contract).

Accordingly, Counts Two and Three are dismissed as duplicative of the legal malpractice claim."
 

Parties may chart their own litigation course, and often the Court accedes.  Here, however, in West Village Assoc. L.P. v Balber Pickard Battistoni    Maldonado & VanDerTuin, PC    2012 NY Slip Op 31444(U)   May 25, 2012   Sup Ct, New York County   Docket Number: 108423/05  Judge: Saliann Scarpulla, problems arose for the motion maker.  Over the past several years, Courts have tightened the rules/dates for summary judgment motions.  This is an example.

‘It is well settled that “statutory time frames [and] court-ordered time- e frames are not options, they are requirements, to be taken seriously by the parties.” Micsli v. State Farm Mut. Auto. Ins. Co., 3 N.Y.3d 725, 726 (2004) (citing Kihl v. Pfefler, 94 N.Y.2d 118 [ 19991). A Court has no “discretion to entertain nonprejudicial, meritorious post-note of issue motions made after a court-imposed deadline but within the statutory maximum 120-day period in CPLR 3212 (a) . . . .” Glasser v Abramovitz, 37 A.D.3d 194, 194 (1” Dept 2007).‘ See also Brill v. City of New York, 2 N.Y.3d 648, 653 (2004). Therefore, the deadline included in the Scheduling Order – 60 days from the completion of
depositions – is to be strictly followed. See also Corchado v City of New York, 64 AD3d 429 ( 1st Dept 2009). The fact that the parties then entered into the July 25 stipulation, has no effect on
this analysis. The July 25 stipulation states in pertinent part that “[although the time in which Defendants can move for summary judgment . . . may expire as early as July 27, 20 1 1, the undersigned hereby stipulate and agree that the motion for summary judgment can be served on July 29,201 1, by hand and also by electronic transmittal (such as e-mail)  Balber’s affidavit of service indicates that the moving papers were served on July 29, 20 1 1 by priority mail and electronic mail, not by hand and electronic mail as specified in the stipulation. Further, the papers served that day were either incomplete or not final, as an “updated set of motion papers” were served via electronic mail on August 2, 20 1 1. Additionally, the July 29, 2011 notice of motion was never filed with the court, but rather an Amended Notice-of Motion, also dated July 29, 20 I 1 and served via e-mail on September 9, 20 1 1, was filed September 9, 2011. Even where parties are allowed to chart their own course,” they are bound to follow that course, and comply with the
stipulation they executed. Mill Rock Plaza Assocs. v. Lively, 224 A.D.2d 301 (1st Dep’t 1996) (“[strict enforcement of the parties’ stipulation . . . is warranted based upon the principle that the parties to a civil dispute are free to chart their own litigation course). See also Powell v. Kasper, 84 A.D.3d 915, 917 (2d Dep’t 201 1) (summary judgment motion filed beyond deadline set forth in parties’ stipulation denied as untimely). "

In March 2006, plaintiff reported to defendant CSI, Inc., its third-party claims administrator, that an employee had filed a discrimination claim against it. CSI allegedly failed to notify plaintiff’s insurer until February 2008, after plaintiff again brought its employee’s claim to CSI’s attention. In April 2008, plaintiff’s insurer denied coverage for the claim on the basis of late notice. Plaintiff eventually commenced this action against CSI for malpractice, alleging that CSI had negligently failed to give timely notice of the employee’s claim to plaintiff’s insurer. CSI then sought coverage for plaintiff’s malpractice action from its own professional liability carrier, defendant Admiral Insurance Company. Admiral’s policy contained a prior knowledge exclusion, however, and Admiral disclaimed coverage on the ground that CSI knew or should have known that plaintiff would have a claim against it prior to September 5, 2008, the effective date of Admiral’s claims made policy. In an amended complaint, plaintiff sought a declaratory judgment holding that Admiral was obligated to defend and indemnify CSI. After joinder of issue, but prior to any discovery, Admiral moved for summary judgment seeking, among other [*2]things, a declaration that it was not obligated to defend and indemnify CSI against the claim asserted by plaintiff. Supreme Court granted Admiral’s motion and plaintiff appeals [FN1].  

Ulster County v CSI, Inc.   2012 NY Slip Op 04262   Decided on May 31, 2012   Appellate Division, Third Department   "Plaintiff contends that reversal is warranted here because Admiral failed to establish CSI’s subjective knowledge of the relevant facts with proof in admissible form. We agree.

Admiral argues that the allegations in plaintiff’s own amended verified complaint are a sufficient basis to warrant summary judgment. Those allegations are not conclusive evidence, however, when read in light of CSI’s verified answer. Although there is no dispute that plaintiff notified CSI of the discrimination claim in March 2006, CSI answered by denying the allegation that it failed to notify plaintiff’s insurer until February 2008. CSI also denied knowledge or information sufficient to form a belief as to whether plaintiff’s insurer then disclaimed coverage in April 2008.

Contrary to Admiral’s contention that Supreme Court could have relied on unsworn statements and letters from CSI employees submitted in support of the motion, we note that Supreme Court did not do so. In any event, those writings are not acknowledged as required by CPLR 4538 and, thus, do not qualify as evidentiary proof in admissible form (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Nor do they qualify as an admission absent evidence that the employees were authorized to speak on CSI’s behalf (see Gstalder v State of New York, 240 AD2d 541, 542 [1997]; Vozdik v Frederick, 146 AD2d 898, 900 [1989]). As the unsworn writings are inadmissible hearsay, they are insufficient to support the motion for summary judgment (see Matter of Patricia YY. v Albany County Dept. of Social Servs., 238 AD2d 672, 674 [1997]; Welch v Prevost Landowners, 202 AD2d 803, 804 [1994]). "