It’s not enough to point out the mistake an attorney has made.  It’s not enough to show that your case was resolved for less than it was worth.  Even with the additional proof that the defendant was your attorney it is not enough to win a legal malpractice case.  Plaintiff must always show that "but for" the mistake of the attorney there would have been a better outcome.

In Lue v Finkelstein & Partners, LLP ; 2012 NY Slip Op 03259  Decided on April 26, 2012  Appellate Division, Third Department we see a labor law case which partially settled, and in which one defendant declared bankruptcy.  Take a look at what plaintiff had to prove to remain in the game:
 

"In January 2002, plaintiff, while working for O’Connell Electric, fell from a scissor lift at a construction work site owned by K-Mart Corporation. Defendants failed to preserve plaintiff’s Labor Law § 240 claim during K-Mart’s chapter 11 bankruptcy, resulting in the claim being reduced to zero dollars by the Bankruptcy Court in 2004. Plaintiff, represented by new counsel, subsequently commenced an action against various defendants, but his claim against K-Mart was dismissed by Supreme Court (Cannizzaro, J.) based upon the Bankruptcy Court’s order. No appeal was pursued from such dismissal.

Plaintiff eventually settled his claim against another defendant — United Rentals, Inc., the supplier of the scissor lift — for $235,000. He then brought this legal malpractice action, which was previously before us regarding a discovery dispute (67 AD3d 1187 [2009]), asserting that he would have had a larger recovery if his Labor Law § 240 strict liability claim against K-Mart had been preserved by defendants. Plaintiff moved for partial summary judgment on the [*2]issue of liability, and defendants cross-moved for summary judgment dismissing the complaint upon the ground that plaintiff could not prove that defendants’ alleged malpractice caused him any damages beyond what he had recovered from United Rentals. Supreme Court granted plaintiff’s motion and denied defendants’ cross motion. Defendants appeal, arguing that since plaintiff cannot recover any damages other than those that he has already received, his motion for partial summary judgment should have been denied and their cross motion for summary judgment should have been granted.

We find that factual issues exist in this record precluding summary judgment to either party. In a legal malpractice action, "a plaintiff must demonstrate that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused [the] plaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007], quoting McCoy v Feinman, 99 NY2d 295, 301 [2002]). Defendants argue that, even if they had preserved a claim against K-Mart, funds would not have been available to collect on a favorable Labor Law § 240 cause of action because K-Mart was self-insured and the record does not establish that K-Mart was named as an additional insured on O’Connell Electric’s policy with its insurer, Interstate Insurance Group. Plaintiff counters by contending that O’Connell Electric had agreed in a written contract to indemnify K-Mart as well as name K-Mart as an additional insured, and that an avenue to O’Connell Electric’s insurer was provided by Insurance Law § 3420 and the 1978 Bankruptcy Code (see 11 USC § 524 [a], [e]).

The contract between O’Connell Electric and K-Mart had an indemnification clause [FN1] and also a clause requiring that O’Connell Electric include K-Mart as an additional insured. It is the general rule that there is no right to indemnification if the indemnitee does not sustain an actual loss (see Lang v Hanover Ins. Co., 3 NY3d 350, 354 [2004]; Jackson v Citizens Cas. Co., 277 NY 385, 389 [1938]; Bank of India v Trendi Sportswear, Inc., 2002 US Dist LEXIS 894, *10-14, 2002 WL 84631, *4-5 [SD NY 2002], affd 64 Fed Appx 827 [2d Cir 2003], cert denied 540 US 1074 [2003]). This rule had the effect of protecting an insurer from having to pay an injured party when its insured was insolvent or bankrupt. Thus, the Legislature long ago carved out an exception to the rule and "remedied this inequity by creating a limited statutory cause of action on behalf of injured parties directly against insurers" (Lang v Hanover Ins. Co., 3 NY3d at 354; see Coleman v New Amsterdam Cas. Co., 247 NY 271, 275 [1928]). This exception is authorized by the Bankruptcy Code (see 11 USC § 524 [a], [e]), and a personal injury plaintiff may pursue an action against a bankrupt defendant for the purpose of obtaining a judgment to be enforced against that defendant’s insurer (see Lang v Hanover Ins. Co., 3 NY3d at 354-355; Green v Welsh, 956 F2d 30, 35 [2d Cir 1992]; Collier On Bankruptcy P 524.05 [16th ed]). Since it is well settled that an additional insured has the same protection as a named insured (see Kassis v Ohio Cas. Ins. Co., 12 NY3d 595, 599-600 [2009]; Pecker Iron Works of N.Y. v Traveler’s Ins. Co., 99 NY2d 391, 393 [2003]), it follows that an Insurance Law § 3420 cause of action could be brought against the insurer of an additional insured. [*3]"

Here, the contract required O’Connell Electric to name K-Mart as an additional insured. However, as defendants point out, there is no proof in the record that this was actually done. Establishing that a party is an additional insured is not generally difficult (see Kassis v Ohio Cas. Ins. Co., 12 NY3d at 599-600). But, the policy is not in the record and there is not even a sworn statement from a person with actual knowledge indicating such coverage was in place [FN2]. Under such circumstances, plaintiff has failed to establish as a matter of law that a potential claim existed under Insurance Law § 3420 against Interstate Insurance Group.

In a multi-million dollar apartment building sale at 108 W. 76th Street, NYC.  Defendant attorney Marmon drafts and negotiates the contract of sale, which was executed by the sellers.  Contract says that sellers have full power and authority to sell and they expressly represented to buyers that Sharmon Marcus and Stephen Marcus held all of the shares of the corporate owner. But did they?  Apparently Stephen Marcus’ kids say no.

Kids start an action in US District Court saying that they own the building, and what’s going on?  That case is ongoing, and buyers now sue Marmon.  Some documents reveal that Mamon knew of the kids claim yet went ahead.

In Gorton v Marmon  2012 NY Slip Op 31073(U)  April 16, 2012  Supreme Court, New York County
Docket Number: 108094/11  Judge: Joan M. Kenney the question is whether this is a negligence and fraud case, or merely a legal malpractice case in disguise?

Justice Kenny recites the various standards for decisions in this area and eventually holds that this is a negligence and fraud case which can proceed. 

"In reference to plaintiffs’ negligence cause of action, moving defendant fails to refute plaintiffs’ claim on negligence, and instead argues that the negligence claim is really one for legal malpractice. I-Having failed to address the negligence claim at all, defendant is not entitled to its
dismissal. Moreover, plaintiffs deny that they are alleging any legal malpractice claims against
defendant and admit that he was not their attorney at the closing of the sale of this property in
question. Plaintiffs specified the elements of a claim of fraud in the pleadings and therefore the claim cannot be dismissed pursuant to CPLR 3211 (a)(7). Specifically, plaintiffs allege that Mr. Marmon misrepresented the fact that the sellers had the legal right to transfer the property; he knowingly did so, due to his access to all of the Reyrnar records; plaintiffs relied on this representation, made the purchase and are now claiming damages as a result of Mr. Marmon’s purported fraud. The fraud claim is also not barred by the statute of limitations. While the interposition date of July 14, 201 1 is beyond 6 years from the June 30, 2005 sale of the property, plaintiffs assert that they did not discover the fraud until September 2009 when they were served with the pleadings in the Federal  Court action and therefore the 2-years-from-discovery rule is applicable, arid the claim of fraud, timely.

Plaintiffs’ contribution claim is not premature. Plaintiffs have a possibility of losing the
property in the Federal Court Action, having the sale of the property rescinded and losing the $4.8
million apartment. As per* the “critical requirement” of CPLR Article 14, such a claim may be
made before the potential judgment in the Federal Court Action. Moreover, plaintiff‘s have stated a
cause or action for indemnification and at this juncture it is premature to dismiss this cause of
action altogether.

Global Bus. Inst. v Rivkin Radler, LLP ;2012 NY Slip Op 31057(U); April 16, 2012; Supreme Court, New York County ;Docket Number: 104918/06 ;Judge: Doris Ling-Cohan is a textbook decision on when and how summary judgment is applied in Legal Malpractice.  Case is simple.  Plaintiff hired Rivkin Radler to negotiate a real estate lease.  There was a long delay before plaintiff could take possession, and during that time the RE taxes escalated.  Plaintiff argued that the lease should have limited the start of the escalation period to when plaintiff got possession.  It did not.  May RR get summary judgment?

"Rivkin Radler next argues that both Global’s “substantial completion/lost profit/consequential damages claims and tax escalation claims are substantively insufficient as a matter of law,” and should be dismissed on that ground. See Defendant’s Memorandum of Law, at 5-17. Global responds that there are issues of fact as to each element of its claims that preclude summary judgment and dismissal at this juncture. See Plaintiffs Memorandum of Law, at 15-23. After careful consideration, the court finds for Global.

In Leder v Spiegel(31 AD3d 246,267 [ 1” Dept 2006 the Appellate Division, First Department, noted that “[in order to state a cause of action for legal malpractice, the complaint must set forth three elements: the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and actual damages.” Further, with respect to the element of proximate cause, the First Department noted in Fletcher v Boies, Schiller h Flexner, LLP (75 AD3d 469,469 [1st Dept 2010) that a plaintiff must demonstrate that “but for defendants’ malpractice in failing to advise her properly, she ‘would have avoided some actual ascertainable damage,’ including sufficient detail as to the ‘nature of the underlying claim .

Rivkin Radler next argues that the element of attorney negligence was not present with respect to those claims because it did not depart “from generally accepted standards of practice” during the negotiation of the lease. See Defendant’s Memorandum of Law, at 8-9. Rivkin Radler supports this argument with an affidavit from one Lloyd Shor (Shor), who is described as a “commercial leasing expert.” See Shor Reply Affidavit, f 10. Global replies that Rivkin Radler did breach its duties to Global by departing from generally accepted standards of lease negotiating practice, and has presented affidavits from “damages expert” Morton Cohen (Cohen) and attorney Martin Stein (Stein) to support its allegations. See Plaintiff‘s Memorandum of Law, at 16-1 7; Cohen and Stein Affidavits in Opposition. Without delving into the merits at this juncture, the court merely concludes that the competing experts affidavits indicate the existence of an issue of fact as to whether Rivkin Radler was negligent during the lease negotiations, and that that issue precludes any grant of summary judgment. Therefore, for the purposes of this motion, the court rejects Rivkin Radler’s claim of no negligence.

Finally, with respect to Global’s substantial completion/lost profit/consequential damages claims, Rivkin Radler argues that the damages element is insufficient because it is based on speculation. See Defendant’s Memorandum of Law, at 9- 1 1. Global responds that either lost profits or  consequential damages are capable of being measured via formulae discussed by its experts in their affidavits. See Plaintiffs Memorandum of Law, at 2 1-23. “The damages claimed in a legal malpractice action must be ‘actual and ascertainable’ resulting from the proximate cause of the attorney’s negligence [internal citation omitted].” Zarin v Reid & Priest, 184 AD2d 385,387-388 (1“ Dept 1992). The court agrees that lost profits and consequential damages as a result of an almost four-year delay in being able to enter the lease premises are the sorts of damages that are susceptible of calculation. "

In Crawford v Himmelstein ; 2011 NY Slip Op 31669(U);  Supreme Court, New York County; Docket Number: 115432/10; Judge: Donna M. Mills we see a straightforward analysis of a typical legal malpractice case. Client is being pursued by landlord to give up three apartments, on the basis of owner-personal use. (Put aside why a rent stabilized tenant could have three apartments?). Case is litigated, and plaintiff eventually settles for $ 300,000 and one year grace period. At the end of the grace period, tenant does not want to move out, and eventually sues attorney for malpractice. Plaintiff loses.

"To prevail in a legal malpractice action, a plaintiff must show that the attorney “failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community” (Volpe v Canfield, 237 AD2d 282,283 that such negligence was the proximate cause of their damages, and that, but for the attorney’s negligence, the plaintiff would have prevailed oh the underlying claim (see Rau v , Borenkoff, 262 AD2d 388.

Here, the plaintiff claims that Himmelstein failed to file a motion for summary judgment or proceed to trial on the issue of the owner landlord’s immigration status relating to the underlying holdover proceeding. In addition to the immigration issue, plaintiff claims there were a number of real estate irregularities surrounding the way the house was sold which was never explored sufficiently by Himmelstien. However, Himmelstein submitted documentary evidence establishing that between May 2004 and November 2007, the parties engaged in lengthy motion practice which involved significant discovery battles. It is quite apparent that Himmelstien was litigating vigorously on plaintiffs behalf before the parties decided to settle. Plaintiff has failed to demonstrate a meritorious cause of action for legal malpractice (Tortorello v Carlin, 286 AD2d 628 [2001]), there being insufficient evidence that “but for” defendants’ alleged negligence in not filing a motion for summary judgment or going to trial in lieu of settling the underlying action, plaintiff would have achieved a more favorable result (Wexler v Shea & Gould, 1 1 AD2d 450 . The record establishes that the parties with the assistance of the court in the underlying action, voluntarily decided to settle the matter instead of proceeding to trial. Moreover, Himmelstein offers a reasonable strategy as to why they did not make a motion for summary judgment. Attorneys are free to select among reasonable courses of action in prosecuting clients’ cases without thereby exposing themselves to liability for malpractice (Dweck Law Firm v Mann, 283 AD2d 292, 293 [2001])."
 

Of the many aphorisms in law, "not good deed goes unpunished" is a pungent reminder of the Newtonian law that every action creates an equal reaction.  Here, in Campbell v Planet Asef Realty 2012 NY Slip Op 50679(U)   Decided on April 10, 2012   Appellate Term, Second Department  we see a recurring legal malpractice situation in one sector of the housing market.  It is the packaged closing for buyer.  In this situation buyer expects broker to provide inspection, mortgage negotiation, assessment and attorney for closing. 
 

"On September 2, 1998, plaintiff and a friend of hers went to the office of defendant Planet Asef Realty (Planet Asef). A broker who worked for Planet Asef showed them a house in Jamaica, New York. Without consulting an attorney, plaintiff and her friend returned to the Planet Asef office on the following day, where they signed a contract to purchase the house in "as is" condition, for the asking price of $189,000. The contract included warranties that the plumbing, heating and electrical systems were in working order and that the roof was free of leaks. On September 25, 1998, plaintiff and her friend consummated their purchase of the house.

Plaintiff brought this action against the seller of the house, the brokerage agency, and [*2]Robert Carrozzo, Esq., the attorney who had represented her at the closing, among others, to recover for damages she had allegedly incurred as a result of the purchase of the house. At her deposition, plaintiff indicated that she had understood that the broker would perform all necessary pre-closing services, including having the premises appraised, obtaining a mortgage commitment for plaintiff, and finding a lawyer to represent her at the closing.

At his deposition, Carrozzo testified that, on September 25, 1998, he had just completed another closing at the office of Planet Asef, when he was approached by a representative of Planet Asef and asked if he could represent plaintiff at her closing. He stated that, after agreeing to represent plaintiff, he had met with her for several minutes before the closing. Carrozzo said that, upon learning that plaintiff had not previously had the house inspected, he had drafted an additional one-page document, which was signed by the seller, plaintiff and her co-purchaser, and which extended both plaintiff’s right to have the premises inspected and the seller’s guaranty of the plumbing, heating and electrical systems and the roof for a period of eight days following the closing. Thereafter, plaintiff closed on the purchase of the house.

Plaintiff failed to have the house inspected during the eight days following the closing or, indeed, until July 1999, at which time she learned that damage from a former structural fire had apparently been cosmetically masked, and that the house required structural remediation, for an estimated cost of $65,000 to $80,000.

At the time plaintiff met Carrozzo, she had already entered into a contract to purchase the house in "as is" condition, with guarantees only as to the plumbing, heating and electrical systems, as well as the roof, none of which were to survive closing. New York adheres, in general, to the doctrine of caveat emptor in real property sales (e.g. Bernardi v Spyratos, 79 AD3d 684, 687 [2010]; Beach 104 St. Realty, Inc. v Kisslev-Mazel Realty, LLC, 76 AD3d 661, 664 [2010]), and a purchaser who, having failed to perform due diligence as to the condition of property prior to signing a contract that provides for the sale of real property in "as is" condition, [*3]is bound by the contract despite structural deficiencies she may later discover in the property (see Daly v Kochanowicz, 67 AD3d 78 [2009]).

Here, plaintiff’s complaints arise from later-discovered structural deficiencies in the property. As Carrozzo demonstrated that plaintiff had committed to the purchase of the property in "as is" condition before she had met Carrozzo and before he had performed legal services for her, Carrozzo presented evidence that plaintiff was unable to prove at least one essential element of her cause of action against him: to wit, that by a breach of his duty, Carrozzo had caused plaintiff’s alleged damages. It was thus incumbent on plaintiff to come forward with evidence that a triable issue of fact existed as to Carrozzo’s liability (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). As plaintiff failed to meet this burden, we conclude that the Civil Court properly awarded summary judgment dismissing plaintiff’s cause of action against Carrozzo for legal malpractice. "

Legal Malpractice litigation is ubiquitous and arises in many interesting and unique settings.  In Abramowitz v Lefkowicz & Gottfried, LLP  2012 NY Slip Op 31011(U)  April 11, 2012
Sup Ct, Nassau County  Docket Number: 015385-11  Judge: Arthur M. Diamond  we see legal malpractice litigation after the fallout of contract litigation claims between a company which designed collective coins and the Daily News, which had an agreement to market, promote and advertise the coins and to share profits.  It fell apart.

As Chief Financial Officer of23KT Gold Collectibles, Abramowitz retained the law firm to represent it in connection with its dispute with the Daily News on March 31 , 2009. More specifically, the law firm was retained to institute a lawsuit on behalf of 23KT Gold Collectibles against the Daily News and to defend against anticipated counterclaims or retaliatory claims advanced by the Daily News. The Retainer Agreement provided that Lefkowicz & Gottfried cannot, and therefore does not, in any manner by entering (that Agreement or otherwise, make any promises or guarantees with regard to the outcome of the Client’s claims " and that it was not retained to represent 23KT Gold Collectibles with regard to "an appeal of any sort or kind.

In this action seeking to recover for inter alia, legal malpractice, the plaintiffs maintain that  Lefkowicz & Gottfried should have notified the Daily News that it was in breach before commencing
23KT Gold Collectibles’ first action against it; that they negligently drafted the first complaint and
failed to cure the vital errors contained therein; that they negligently defended against the Daily
News summary judgment motion and never sought leave to amend to correct vital errors in the complaint; and, that they negligently responded to the Daily News’ discovery request. They also
allege that the law firm failed to respond to their requests regarding the status of the lawsuit and to
keep them apprised of critical developments and furthermore, concealed negative facts from them.
The plaintiffs also maintain that Lefkowicz & Gottfried never told them that the Daily News had
procured summary judgment dismissing their complaint against it; that they refused to appeal from
that order; and that they never sought additional discovery documents from them even though they
were faced with a conditional order of dismissal.

The plaintiffs additionally allege that a dispute arose at a meeting on September 13 2011 between Lefkowicz, Abramowitz, Abramowitz s brother Matt and Goldberg, 23KT Gold Collectibles and Merrick Mint Ltd.’s successor attorney. More specifically, they allege that Lefkowicz attempted to leave the meeting but Abramowitz would not allow him to do so whereupon Lefkowicz allegedly pushed him and left. Abramowitz alleges that Lefkowicz then went to the police and filed a complaint swearing that he had threatened him with a gun causing him to fear for his life, which Abramowitz adamantly denies. Abramowitz alleges that he ultimately surrendered to the police where he remained in custody while the charges, Menacing in the First Degree and Harassment in the Second Degree were prepared.

The complaint fails to plead facts which would establish an attorney-client relationship
between Abramowitz and the defendants. While the plaintiffs have alleged that the defendant
represented 23KT Gold Collectibles, Ltd. and Merrick Mint Ltd. , they have not alleged facts
indicative of a relationship with Abramowitz, individually.

Merrick Mint Ltd. was not a party to the agreement with the Daily News. The defendants’ misnomer of it as a plaintiff in 23KT Gold Collectibles’ suit against the Daily News did not cause it any damages. While theoretically it could have been held responsible on the Daily News
counterclaims, the Daily News could not have established its liability. More importantly, judgment
was in fact only procured against 23KT Gold Collectibles. And, the plaintiffs have not established
that the settlement included Merrick Mint Ltd. Accordingly, Merrick Mint Ltd. suffered no damage
as a result of the defendants ‘ alleged negligence. Merrick Mint Ltd. s legal malpractice claim is
dismissed pursuant to CPLR 3211 (a)(1), (7)..

The plaintiffs ‘ have amply alleged facts establishing the defendants ‘ negligent handling of  their case against the Daily News as well as ensuing damages. Furthermore, the documentary evidence relied on by the defendants does not conclusively establish that the plaintiffs could not have prevailed on their claims against the Daily News: Issues of fact exists as to whether the plaintiffs would have prevailed against the Daily News on their claims and in defense of the Daily News counterclaims. Dismissal of the 23KT Gold Collectibles’ legal malpractice claim pursuant to CPLR 9321 1 (a)(1), (7) is denied. See, Sicilano v. Forchelli & Forchelli 17 AD3d 343 (2 Dept 2005), citing Shopsin Siben Siben 268 AD2d 578 (2 Dept 2000); see also, Pechko Gendelman, 20 AD3d 404 (2 Dept 2005).."

Legal malpractice litigagnts, as well as most other plaintiffs, would like to bring a case where they live. It’s convenient, it’s more likely favorable, and it’s easier. However, a case which took place in a neighboring state may not be proper to bring in NY. Here is an example. In Paolucci v Kamas
2011 NY Slip Op 03823 ;  Appellate Division, Second Department, plaintiff finds that the case may not be brought in NY. The AD doesn’t say, but the events leading to legal malpractice litigation took place in Kansas.
 

"Personal jurisdiction can be conferred under CPLR 302(a)(1) "even though the defendant never enters New York, so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted" (Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 71, cert denied 549 US 1095; see Fischbarg v Doucet, 9 NY3d 375, 380). Here, however, the Supreme Court properly determined that the number, nature, and quality of the defendants’ contacts with New York do not evince purposeful activities by which the defendants availed themselves of the benefits and protections of New York law (see Weiss v Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel & Wolff, 85 AD2d 861; see also Kimco Exch. Place Corp. v Thomas Benz, Inc., 34 AD3d 433; O’Brien v Hackensack Univ. Med. Ctr., 305 AD2d 199; cf. Fischbarg v Doucet, 9 NY3d 375; Grimaldi v Guinn, 72 AD3d 37).

The Supreme Court also properly determined that personal jurisdiction over the defendants was not conferred pursuant to CPLR 302(a)(3) based upon tortious activity occurring outside New York, causing injury within New York. The plaintiff failed to demonstrate prima facie that the defendants "[1] regularly do[ ] or solicit[ ] business, or engage[ ] in any other persistent course of conduct, or derive[ ] substantial revenue from goods used or consumed or services rendered, in the state," or "[2] expect[ ] or should reasonably expect the act to have consequences in the state and derive[ ] substantial revenue from interstate or international commerce" (CPLR 302[a][3][i], [ii]; see Ingraham v Carroll, 90 NY2d 592; cf. LaMarca v Pak-Mor Mfg. Co., 95 NY2d 210). [*2]"
 

Justice Ling-Cohan writes a basic textbook of how an account stated case is decided in an attorney fee setting in Mintz & Fraade, P.C. v Docuport, Inc.  2012 NY Slip Op 30974(U)  April 11, 2012  Supreme Court, New York County  Docket Number: 603125/07  Judge: Doris Ling-Cohan.  Here the law firm loses.

"Before this court are three motions: (1) Plaintiffs motion pursuant to CPLR $321 l(5) and CPLR 5214(6), to dismiss defendant’s counterclaim of breach of fiduciary duty, upon the ground that it is time barred by the applicable 3-year statute of limitation; (2) Defendant’s cross-motion to dismiss plaintiff’s first, second, third and fourth causes of action; and (3) Plaintiffs motion pursuant to CPLR 53212 for summary judgment on the complaint and to dismiss defendant’s counterclaim.

In support of its motion to dismiss defendant’s counterclaim of breach of fiduciary duty, plaintiff
maintains that such counterclaim is barred by the three (3) year statute of limitation which applies to such a claim. In opposition, defendant argues that its counterclaim is not barred the statute of
limitations, since such counterclaim and plaintiffs claims arise from the same transactions,  occurrences or series of occurrences, namely plaintiffs provision of legal services, and thus, pursuant to CPLR §203(d), defendant may pursue its counterclaim, in the nature of recoupment or set-off against any amount plaintiff seeks to recover on its claims. This court agrees. 

Defendant’s cross-motion to dismiss is procedurally defective in that a statutory basis or dismissal is not supplied. See Rubin v. Rubin, 72 AD2d 536 (1’‘ Dept 1979); Tortorice v. Tortorice, 55 Misc 2d 649 (Sup Court, Kings County 1968); CPLR §2214(a); CPLR $321 l(e). CPLR §2214(a) specifically provides that the grounds for the relief demanded must be specified in the notice of motion, which defendant failed to do herein. Moreover, the affidavit supplied by defendant in support of its crossmotion to dismiss, asserts numerous times, that,“there exists material issues of fact.. .” regarding plaintiffs claims, conceding that dismissal is not warranted at this juncture. [Thus, defendant’s cross-motion is denied.

At the outset the court notes that, while plaintiffs notice of motion indicates that it is seeking summary judgment with respect to (1) the complaint, and (2) defendant’s counterclaim, plaintiff only argues in support of summary judgment based upon its account stated cause of action and dismissal of defendant’s counterclaim, in the moving papers. Thus, as no legal or factual basis has been supplied with respect to granting summary judgment on plaintiffs causes of action for breach of contract, unjust enrichment and quantum meruit, summary judgment is denied as to such causes of action.

As to plaintiffs cause of action for an account stated, plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law, since the invoices supplied in support of its claim do “not set forth [its] hourly rate, the billable hours expended, or the particular services rendered”, as required, and, thus, summary judgment is denied. Ween v. DOW3,5 AD3d 58 (1st Dept 2006). In Peen, the First Department, searched the record, to specifically find that plaintiff was not entitled to summary judgment for failing to make a prima facie showing, because the invoices submitted in support did not include counsel’s “hourly rate, the billable hours expended, or the particular services rendered”. Id. at 62; see  also Kaye, Scholer, Fierman, Hays & Handler, LLP v. L.B. Russell Chemicals, Inc,, 246 AD2d 479 ( 1st  Dept 1998); Herbert Paul, P. C. v. Coleman, 236 AD2d 268 (1‘ Dept 1997); Diamond & Golomb, P. C., 140 AD2d 183 (1 Sf Dept 1988). "