Failure to advise a client of the attorney’s malpractice (or hiding the malpractice) is not enough to give rise to a cause of action, but fraud in advising the client that attorney is licensed in Florida is enough.  In Rupolo v Fish ; 2011 NY Slip Op 06343 ;Decided on August 23, 2011 ;Appellate Division, Second Department  we see that while it may be too late to sue for legal malpractice, it is not too late for a claim in fraud.
 

"In the second cause of action the plaintiffs allege that the defendants committed legal malpractice with respect to the drafting of an easement agreement benefitting certain real property located in Florida and owned by the plaintiffs. The Supreme Court erred in denying that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(5) to dismiss this cause of action as time-barred. The defendants demonstrated that the alleged legal malpractice occurred more than three years before the instant action was commenced on October 31, 2008 (see CPLR 214[6]; Kennedy v H. Bruce Fischer, Esq., P.C., 78 AD3d 1016, 1017). Contrary to the plaintiffs’ contention, they failed to raise a question of fact as to whether the statute of limitations was tolled by the doctrine of continuous representation. Rather, the evidence demonstrated that the relationship necessary to invoke the continuous representation doctrine terminated during the summer of 2005 (cf. Marlett v Hennessy, 32 AD3d 1293, 1294; Piliero v Adler & Stavros, 282 AD2d 511), and the fact that the defendants received a telephone call from the plaintiffs’ new counsel in November 2005, during which the defendants provided requested information to new counsel, did not toll the running of the statute of limitations until that date (see Tal-Spons Corp. v Nurnberg, 213 AD2d 395, 396). Accordingly, that branch of the defendants’ motion which was to dismiss the legal malpractice cause of action should have been granted (see Williams v Lindenberg, 24 AD3d 434, 434-435).

However, the Supreme Court properly denied that branch of the defendants’ motion [*2]pursuant to CPLR 3211(a)(7) which was to dismiss the cause of action alleging fraud as duplicative of the legal malpractice cause of action. As alleged in the complaint, the fraud cause of action was based upon tortious conduct independent of the alleged malpractice, i.e., an alleged misrepresentation as to the eligibility of the defendant Richard E. Fish to practice law in the State of Florida, and the plaintiffs alleged that damages flowed from this distinct conduct (cf. Weiss v Manfredi, 83 NY2d 974, 977 ["attorney’s failure to disclose malpractice does not give rise to a fraud claim separate from the customary malpractice action"]; Iannucci v Kucker & Bruh, LLP, 42 AD3d 436). "

The perennial question of whether a prior proceeding might influence a later proceedings arises again in Feinberg v. Boros, 2010 NY Slip Op 30797, by Justice Emily Jane Goodman, in Supreme Court, New York County.

The legal malpractice claim arose after an arbitration between plaintiff and his former business partner, where defendants acted as Feinberg’s party arbitrator and later as counsel in a law suit against the former accountants to the business. The claim is that defendants failed to advise plaintiff about the collateral estoppel effect of the arbitration award on his subsequent suit against the accountants for malpractice.

Such malpractice – malpractice lawsuits are more common than one might imagine. While the popular conception is that the client is litigious, or lawsuit-crazy, the better and more accurate version is that the client has moved from one situation to the next in search of a proper finding of liability.

"In 1997, plaintiff and his former partner, Norman Katz, submitted to arbitration the issue of the final purchase price of Katz’s share of the jointly owned I. Appel Corporation, thus barring litigation of plaintiff’s claims against the corporation’s accounting firm (I. Appel Corp. v Mahoney Cohen & Co., 294 AD2d 196 [2002]; 6 AD3d 279 [2004], lv denied 4 NY3d 701 [2004]).

Plaintiff now seeks damages resulting from the alleged negligence of their former attorneys in failing to move to amend the arbitration award to insert language limiting the collateral estoppel effect of the award. We agree that plaintiff’s pleading of his legal malpractice cause of action was sufficient to survive defendants’ original CPLR 3211 (a) (7) motion. From the alleged facts, accepting them as true, according them the benefit of every possible favorable inference, and evaluating them only as to whether they fit within any cognizable legal theory, one could infer that plaintiff’s former partner would have been amenable to an agreement limiting the estoppel effect of the arbitration award. Defendants have not established, as a matter of law, that even if plaintiff and Katz had entered into an agreement limiting the collateral estoppel effect of the arbitration award, the Mahoney Cohen lawsuit would nonetheless have been dismissed on collateral estoppel grounds (Matter of American Ins. Co. [Messinger—Aetna Cas. & Sur. Co.], 43 NY2d 184 [1977]; accord Kerins v Prudential Prop. & Cas., 185 AD2d 403 [1992]). In circumstances involving arbitration, the parties themselves can formulate their own contractual restrictions on the carry-over estoppel effect (Matter of State Farm Ins. Co. v Smith, 277 AD2d 390 [2000]). Accordingly, plaintiff’s proposed amended complaint sufficiently states a claim for legal [*2]malpractice (Deitz v Kelleher & Flink, 232 AD2d 943 [1996]; see also Tenzer, Greenblatt, Fallon & Kaplan v Ellenberg, 199 AD2d 45 [1993])."

What is a question of judgment, what is neglect of a case and what is ignorance of the rules in legal malpractice? Sometimes this is an easy question, other times, slightly more complex. in MCCORD -v.- O’NEILL,; No. 08-3096-cv ; Summary Order; UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT;2010 U.S. App. LEXIS 5139 we see the 2d Circuit’s general definitions;
 

"Construing all the facts in McCord’s favor, an independent review of the record shows that the district court properly granted O’Neill’s motion for summary judgment. "To state a claim for legal malpractice under New York law, a plaintiff must allege: (1) attorney negligence; (2) which is the proximate cause of a loss; and (3) actual damages." Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006). Under this standard, "[a] complaint that essentially alleges either an ‘error of judgment’ or a ‘selection of one among several reasonable courses of action’ fails to state a claim for malpractice." Id. (quoting Rosner v. Paley, 65 N.Y.2d 736, 481 N.E. 2d 553, 554, 492 N.Y.S.2d 13 (N.Y. 1985)). And, in general, "an attorney may only be held liable for ‘ignorance of the rules of practice, failure to comply with conditions precedent to suit, or for his neglect to prosecute or defend an action.’" Id. (quoting Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 554 N.Y.S.2d 487, 489-90 (N.Y. App. Div. 1st Dep’t 1990)).

Here, McCord’s malpractice claim rested on the allegation that O’Neill’s failure to contact Ron Lawrence, another employee of McCord’s former employer, as a possible witness constituted [*4] negligence, and that, had Lawrence been a witness in his case, the district court would not have granted Airborne’s motion for judgment of a matter of law and dismissed McCord’s discrimination claims. O’Neill met his initial burden of demonstrating that his decision was a reasonable strategic choice by showing that the only information regarding Lawrence in McCord’s possession at the time was Lawrence’s "Summary of Disciplinary/Attendance History." This document showed that Lawrence, a Caucasian, had received much the same disciplinary treatment as McCord, undermining McCord’s contention that calling Lawrence would have enabled him to demonstrate that his employer treated him less favorably than a similarly situated employee outside of his protected group. See Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003). As the district court correctly observed, McCord adduced no evidence in response suggesting that O’Neill’s failure to contact Lawrence was negligent, or that this decision could have proximately resulted in the court’s unfavorable decision in Hill."

Siracusa v Sager   2011 NY Slip Op 32244(U);August 3, 2011;Supreme Court, Suffolk County; Docket Number: 06-35942; gives Judge: Peter Fox Cohalan the opportunity to review a many faceted matrimonial child support legal malpractice case. Aside from the question of why a father would resist paying $ 125 a week in child support, the case seems to hinge on whether and who made tactical decisions, and to what extent the plaintiff participated.

"The plaintiff commenced this action against the defendants Jeffrey Horn, Esq., Horn & Horn, Esq., and Horn, Horn & Ramme, Esq. (hereinafter collectively referred to as the Horn defendants), and Audrey Sager, Esq., Steven Gellerman, Esq., and Sager & Gellerman, Esq. (hereinafter collectively referred to as the Sager defendants) to recover damages he allegedly sustained as a result of their legal malpractice. The gravamen of the plaintiffs complaint is that Jeffrey Horn, Esq. and Audrey Sager, Esq. failed to confer with or prepare the plaintiffs certified public accountant, William Carney (hereinafter CPA), to testify on the plaintiffs behalf or to introduce documents from the CPA into evidence; that they advised the plaintiff to enter into a stipulation to modify his custodial arrangement from sole custody to joint custody; arid that they failed to make an application to disqualify the plaintiffs former wife’s attorney during their matrimonial action."

"In 1998, the plaintiff retained the Sager defendants to represent him in an action seeking sole custody of his infant daughter. Following the filing of a petition for sole custody, the plaintiffs wife commenced a separate action f’or a judgment of divorce. On March 12, 1999, they entered into a stipulation resolving the issues of custody and visitation and, on June 16, 1999, a judgment of divorce was granted. Under the March 12, 1999 stipulation, the plaintiff was designated as the non-custodial parent for child support purposes and the plaintiffs former wife was designated as the primary custodian. On December 8, 2000, the parties entered into a stipulation modifying the March 12, 1999 stipulation of custody. Pursuant to the new custody stipulation, the parents were given joint custody of the infant child, with the plaintiff designated as the primary custodial parent and his former wife designated as the secondary custodial parent. However, the issue of child support was left unresolved and a hearing on the issue of child support was scheduled."

"In opposition, the plaintiff has failed to demonstrate that the Horn and Sager defendants committed malpractice by allegedly not calling the plaintiffs CPA as a witness, by advising him
to enter into a modification of his March 12, 1999 child custody stipulation, or by failing to move to disqualify his former wife’s counsel (see generally Waggoner v Caruso, 14 NY3cl 874, 903 NYS2d 333 [2010]; Davis v Klein, 88 NY2d 1008, 648 NYS2d 871 [1996]). In any event, the plaintiff has failed to present any proof that such alleged failures were the proximate cause of any damages sustained by the plaintiff (see Leder v Speigel, 9 NY3d 836, 840 NYS2d 888 [2007]; Manna Fuel Oil Corp v Ades, 14 AD3d 666,789 NYS2d 288 [2d Dept 20051). The trial Court conducted a thorough hearing on the child support issue and noted that the testimony of the plaintiff was “evasive, contrived, inconsistent, and designed to obfuscate the financial issues before the court,” and that the plaintiffs explanations for his failure to produce tax returns, bank statements and checks was best described as “blase, indifferent and unconcerned.” The trial Court also noted in its  determination that the plaintiffs lifestyle and living accommodations bordered on lavish. Moreover, the plaintiffs claim of damages remains speculative and unascertainable (see Parola, Gross & Marino, P.C. v Susskind, 43 AD3d 1020, 843 NYS2d 104 [2d Dept 20071; Dweck Law Firm v Mann, 283 AD2d 292,727 NYS2d 58 [Ist Dept 20011, Oot v Arno, 275 AD2d 1023,713 NYS2d 382 [4th
Dept 20001). Additionally, the CPA’s affidavit is without probative value since he states that he does
not have personal knowledge, and that his knowledge is based upon “what the plaintiff told
him and the documentation that he received from the plaintiff.” Despite its lack of probative
value, even if the Court were to consider this affidavit, the CPA fails to explain how the application of the “Gross Profits Tests” by the plaintiffs former wife’s expert, which found that the plaintiffs company was grossly understating its income, was an incorrect assessment. "

Justice Judith Gische of Supreme Court, New York County presents a primer on attorney fee litigation and the disposition of counterclaims for legal malpractice in Hurley v. Bulah Church of God in Christ Jesus, Inc. In this case the Church had gone through some hard times. A pastor was accused of financial wrongdoing, and the Church was in Bankruptcy Court for taxes and other debts. Attorney was retained, and worked on the case in what turns out to be an admirable fashion. When the Bankruptcy was winding up, leadership of the Church changed, and he was no longer so admired there. Effect? The Bankruptcy court approved fees, and he was paid. Nevertheless, there were post-discharge work and fees, and this dispute in state court followed.

Read for the excellent description of why and how an attorney is due fees. "an attorney who is discharged by a client for cause has no right to compensation or a retaining lien, notwithstanding a specific retainer agreement. Teichner by Teichner v. W & J Holsteins, Inc., 64 NY2d 977 (1985). On this motion plaintiff has successfully established that he: 1) owed unpaid legal fees; 2) was not discharged for cause, but withdraw as counsel with court approval; 3) deposited money into his attorney escrow account to be applied to post closing matters, like distribution of money to creditors, etc; and 4) Deacon Roberts was authorized to attend to the church’s financial matters with respect to the reorganization. Thus, plaintiff has proved he is owed unpaid legal fees and other fees."
 

This is the story of an attorney who put his own freedom at risk in order to stymie a former client, and a successor attorney. Why, and the clumsy method undertaken is the mystery. in In re: RUBY G. EMANUEL, Debtor.;Chapter 7, Case No. 97-44969 (SMB); UNITED STATES BANKRUPTCY COURT FOR THE SOUTHERN DISTRICT OF NEW YORK;2009 Bankr. LEXIS 4024;December 23, 2009

"This matter has its origins in an unfortunate, fatal accident involving the debtor’s husband. On December 17, 1992, Mr. Emanuel’s employer was performing repairs on a barge in dry dock at the Brooklyn Navy Yard. The task called for the placement of a gangway connecting the barge to the dock. Mr. Emanuel was charged with the responsibility of placing the gangway. While standing on the gangway as it was being hoisted into place, Mr. Emanuel fell 45 feet to the bottom of the dry dock, sustaining massive injuries that rendered him a quadriplegic and ultimately led to his death on August 30, 2004. Emanuel v. Sheridan Transp. Corp., 10 A.D.3d 46, 779 N.Y.S.2d 168, 170-71 (N.Y. App. Div. 2004) ("Emanuel I").

The debtor retained Heller, individually and as administratrix of her husband’s estate, to file a wrongful death action. Heller commenced suit against the barge owner, among others, asserting claims under the Jones Act, New York Labor Law and in negligence (the "Action"). Prior to the trial, on July 28, 1997, the debtor filed a voluntary petition [*3] for relief under chapter 7. By Order dated August 10, 1999, the Trustee retained Heller (and Samuel Hirsch) as special personal injury counsel to the Trustee to prosecute the Action." Heller won a multi million dollar verdict

Approximately one month after the Appellate Division reversal, Heller was disbarred. The charges that triggered the disbarment were unrelated to the Emanuel case.. The Appellate Division disagreed. Citing Heller’s pattern of misconduct, "utter contempt for the judicial system" and "his consistent, reprehensible, [*5] unprofessional behavior," the court concluded that he should be disbarred rather than suspended:
In light of the cumulative evidence of respondent’s 24-year history of sanctions, his perverse and persistent refusal to accept adverse rulings, reflective of an utter contempt for the judicial system, and his consistent, reprehensible, unprofessional behavior, which has included screaming at, threatening and disparaging judges, adversaries and experts, intentionally defying court rulings, and disrupting and thwarting proper legal process through both physical and verbal aggression, we are of the opinion that the appropriate sanction here is disbarment.
Heller failed to purge himself of the contempt, and state Supreme Court Justice Silver issued a warrant for Heller’s arrest on February 26, 2007. In re Emanuel, 406 B.R. 634, 635 (Bankr. S.D.N.Y. 2009) ("Emanuel II"). Heller was arrested that same day, and was subsequently sentenced to 30 days in jail and a $ 10,000 fine (the "Sentencing Order").

Deprived of Heller’s files, J&M carried on the best it could relying on the Record on Appeal. 5 Eventually, it procured a $ 3.65 million settlement that the Trustee accepted.

Heller’s post-disbarment conduct caused prejudice to his former clients. Having lost the case he tried, Heller obstructed J&M’s attempts to retry the case he lost. His refusal to turn over the files, in the face of several court orders directing him to do so, was symptomatic of what the Appellate Division described as his "utter contempt for the judicial system, and his consistent, reprehensible, unprofessional behavior, which has included . . . intentionally defying court rulings" in the Heller disbarment order. In re Heller, 780 N.Y.S.2d at 319. Furthermore, although he argued to the Appellate Division, as he does here, that the Record on Appeal included everything that [*25] J&M needed to retry the case, (see J&M Findings, Ex. 25, at 51-53), the Appellate Division concluded that Heller’s contemptuous refusal to turn over the files caused "resulting prejudice to plaintiff’s right to a new trial."
 

we’ve often written about privity and legal malpractice, and ran across this case illustrating the boundaries of privity in medical malpractice.  The facts are ghastly, and the outcome, for plaintiff, is doubly hurtful.

In Fox v Marshall ; 2011 NY Slip Op 06214 ; Decided on August 9, 2011 ; Appellate Division, Second Department ; Sgroi, J., J. the question is whether decedent’s husband may sue a physician alleged to have negligently treated a psychiatric patient.
 

"In this case we address the often muddled issue of whether a legally viable medical malpractice cause of action can be asserted against a physician by a third party even though no doctor-patient relationship ever existed between these parties. Under the circumstances of this case, we conclude that the law does not recognize such a cause of action.

This action has its genesis in a particularly brutal and unsettling crime, the murder of Denice Fox by her neighbor, the defendant Evan Marshall, on August 17, 2006. Denice Fox, a retired teacher, lived on Willada Lane in Glen Cove, Nassau County. Prior to 2005, Evan Marshall lived, intermittently, at the home of his mother, the defendant Jacqueline Marshall, which was located two doors away from the Fox home. At the time of the crime, Marshall was 31 years old, had a history of substance abuse and psychiatric problems, and had, between August and November 2005, been treated at 10 different drug abuse and mental health facilities.

Beginning in November 2005, Marshall resided at and was treated at the defendant SLS Residential, Inc. (hereinafter SLS), a substance abuse and mental health facility located in Brewster, New York. According to the agreements governing patients-clients treated at SLS, enrollment in the facility’s various programs was "voluntary." However, the agreements also stated that "a member" must give 30 days prior written notice of intention to "leave the program." There is no language in the agreements specifically governing a procedure whereby a member is permitted to temporarily leave the facility. The plaintiff alleges, however, that on August 16, 2006, the day before the murder, officials at SLS gave Marshall a "pass" to leave the facility for the ostensible reason of visiting his mother in Glen Cove. The plaintiff also alleges that Marshall was given the keys to his car and was permitted to leave the facility with $900 in cash, which he had earned from a part-time job while he was in treatment.
Upon arriving on Long Island, Marshall allegedly bought cocaine and then went to his mother’s house, where he apparently spent the night. On August 17, 2006, at approximately 8:30 A.M., Marshall allegedly drove his car onto a footpath in Glen Cove and intentionally struck a woman who had been jogging thereon. Later that morning, Marshall rang the doorbell at Denice Fox’s home and forced his way into the house. He then proceeded to murder Ms. Fox and dismember her body, which he then transported to his mother’s house. Ultimately, the crime was discovered and Marshall was arrested. He has since pleaded guilty to, inter alia, the crimes of murder in the first degree and burglary in the first degree.

The Supreme Court denied the motion [to dismiss] and cross motions holding, inter alia, that a mental health facility may owe a duty to protect the public from the actions of an outpatient where there is evidence that the facility has the ability to control the patient’s actions and has knowledge that the patient may be a danger to himself and others. The Supreme Court also found that the allegations, if proven, would establish that Jacqueline Marshall owed a duty of care to the decedent. We modify and conclude that the Supreme Court should have granted those branches of the motion and cross motions which were to dismiss the cause of action alleging medical malpractice, and [*3]should have granted Jacqueline Marshall’s separate cross motion to dismiss the complaint insofar as asserted against her. "

"In the case at bar, Marshall was not involuntarily confined to the SLS facility. Nonetheless, the SLS defendants and the SLS employees exercised a certain level of authority and control over Evan Marshall. Although the degree of such control is unclear at this stage of the case, the mere fact that Marshall appeared to need a facility-issued pass in order to visit his mother suggests that he was not completely free to leave the facility (cf. Purdy v Public Adm’r of the County of Westchester, 72 NY2d at 9 – "[the patient] could come and go as she pleased"). The record also discloses that the SLS defendants and the SLS employees were aware of Marshall’s severe psychological problems. Accordingly, accepting the facts as alleged in the complaint as true, and according "every possible favorable inference" to the plaintiff (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Leon v Martinez, 84 NY2d at 87), the complaint herein sufficiently alleges a cause of action in negligence against the SLS defendants and the SLS employees (see Rivera v New York City Health and Hospitals Corporation, 191 F Supp 2d at 421; see also Williams v State of New York, 84 AD3d 412).

However, under the circumstances of this case, the absence of any doctor-patient relationship between the decedent and the SLS defendants or Stumacher precludes a cause of action based on medical malpractice. It has long been recognized that, as a general rule, the sine qua non of a medical malpractice claim is the existence of a doctor-patient relationship. Indeed, it is this relationship which gives rise to the duty imposed upon the doctor to properly treat his or her patient (see Bazakos v Lewis, 12 NY3d 631, 634; Payette v Rockefeller Univ., 220 AD2d 69, 72; Ellis v Peter, 211 AD2d 353; Heller v Peekskill Community Hosp., 198 AD2d 265; LoDico v Caputi, 129 AD2d 361, 363; see also Speigel v Goldfarb, 66 AD3d 873, 874). Therefore, a doctor’s "duty of care is ordinarily only one owed to his or her patient" (Purdy v Public Adm’r of the County of Westchester, 72 NY2d at 9), and correspondingly, the element of duty would normally be missing from a claim made against a doctor by one who is not that doctor’s patient. "

Plaintiff sues attorneys for a divorce situation in which he alleges they represented both him and his wife, and lost about $1 million for him in the proceedings.  His complaint, in Verdelis v Landsman ; 2011 NY Slip Op 32196(U); August 8, 2011; Sup Ct, NY County; Docket Number: 651767/10; Judge: Judith J. Gische survives both a CPLR 3211(a)(1)  and (a)(7) motion, yet is dismissed on the basis that it was brought 3 years + two weeks after the judgment of divorce was entered.  The Court finds that the cause of action accrued on the date of entry of the judgment of divorce.

"Plaintiff claims that Defendants were retained to represent him in an uncontested divorce  proceeding, Daphne Sirneon v. Konstanhos Verdelis, 30981 1/07, (the “Underlying Action”) involving his ex-wife, Daphne Simeon (“Sirneon”). Defendants deny the allegations and bring this pre-answer motion to dismiss the complaint based upon: (I) a defense founded on documentary evidence (CPLR 3 321 1 [a][l]), (2) the expiration of the statute of limitations (CPLR § 321 1 [a][5]),
and (3) failure to state a cause of action (CPLR 5 3211 [a][7]). Plaintiff opposes the
motion."

"Plaintiff alleges that in 2007, the defendants failed to inform him that they were not representing him. Specifically, Plaintiff claims that the Defendants improperly rendered legal advice to him and they did not advise him that there were adverse interests between him and his wife. Plaintiff claims that Simeon told him that the defendant’s fees were $5,476 and that he was to pay 1/2 of the fees by paying Simeon $2,738. Plaintiff further alleges that the Defendants protected Simeon to his disadvantage, and that they failed to advise him that he was entitled to equitable distribution of the marital assets that totaled approximately $2,000,000. Plaintiff also claims that they did not advise
him to seek outside counsel before he waived his right to approximately $1,000,000 in
distributable assets"

"Although the attorney-client relationship is contractual in nature, formality is not an essential element to its formation. Talanskv v. Schulman, 2 A.D.3d 355, 358 (1st Dept. 2003). An attorney-client relationship may exist where an attorney was involved in the drafting, preparation and execution of a separation agreement, even though the attorney did not negotiate its terms or provide advice to the plaintiff. Shanlev v Welch, 31 A.D.3d 1127 (2006); see also Leon v Martinez, 84 NY2d 83 (1 994) (plaintiffs pleaded enough to infer existence of attorney-client relationship where defendant attorneys had drafted agreement between their client and plaintiffs in which client agreed to pay portion of lawsuit proceeds to plaintiffs ). Allowing the complaint a liberal construction and taking into account the Plaintiffs submissions, Plaintiff has sufficiently pleaded a cause of action for legal malpractice."

"Defendant’s documentary evidence relied upon by defendants does not  conclusively, taken in a light most favorable to the Plaintiff, eliminate the possibility that an attorney-client relationship existed between Plaintiff and Defendants. Therefore, the Motion to Dismiss pursuant to CPLR 5 321 l(a)(i) is denied."

"A cause of action for legal malpractice based upon a divorce proceeding accrues on the date the
Judgment of Divorce was actually entered. Zorn v. Gilbert, 8 N.Y.3d 933 (2007). See, McCoy, supra, at 205 (Holding that the plaintiff had a cause of action on the day the divorce judgment was filed with the County Clerk’s office and as a result, plaintiffs claim was time barred as she brought it more than three years later). Consequently, Plaintiffs argument that his claim accrued when he was mailed the Judgment of Divorce is rejected. Based on the foregoing, Plaintiff was required to commence his action for legal malpractice against the Defendants by October 5, 201 0. Since the instant action was not commenced until October 18, 201 0, by the filing of a Summons with Notice, it is untimely under the applicable statute of limitations period. Plaintiffs First Cause of Action, for Legal Malpractice must therefore be dismissed as time-barred pursuant to CPLR 3321 I (a)(5).
This cause of action is time barred by statute."