We are pleased to present the link to a NYLJ article discussing Judiciary Law 487 in its present and historical context.

Here is the Link

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Carasco v Schlesinger 2023 NY Slip Op 06437 Decided on December 14, 2023
Appellate Division, First Department provides a window into the rise and fall of the large personal injury law firms, including attorneys who leave and take cases with them.

Here, defendant attorney was unable to obtain summary judgment and was unable to show that plaintiff could not prove at least one element of his lost personal injury claim due to failure to provide discovery to the landowner.

“In October 2014, plaintiff fell while crossing Second Avenue near 58th Street in Manhattan. In December 2014, plaintiff retained the law firm of Julian & Schlesinger, P.C. (J&S) to bring a personal injury action on her behalf. At that time, Schlesinger was an associate at J&S who had met with plaintiff and represented her at the 50-h hearing. J&S dissolved in 2015 and Schlesinger moved to the Morelli Law Firm, PLLC., who was never retained by plaintiff. On January 28, 2016, Schlesinger commenced a personal injury action in Supreme Court, New York County on plaintiff’s behalf. The summons and complaint in the underlying action listed counsel for plaintiff as “Michael S. Schlesinger of the Schlesinger Law Firm, P.C.” Between February 2017 and July 2018, Supreme Court, New York County issued orders dismissing the underlying action based, inter alia, on plaintiff’s failure to provide discovery. Plaintiff then commenced this legal malpractice action against J&S, Morelli Law Firm ^[FN1], and Schlesinger.

In order to establish a legal malpractice claim, a plaintiff must establish “three elements: (1) that the attorney was negligent; (2) that such negligence was a proximate cause of plaintiff’s losses; and (3) proof of actual damages” (Brooks v Lewin, 21 AD3d 731, 734 [1st Dept 2005], lv denied 6 NY3d 713 [2006]). When the claim is based on the alleged mishandling of a litigation, then plaintiff must satisfy the “case within a case requirement, demonstrating that but for the attorney’s conduct the plaintiff client would have prevailed in the underlying matter or would not have sustained any ascertainable damages” (Lieblich v Pruzan, 104 AD3d 462, 462-463 [1st Dept 2013] [internal quotation marks omitted]).

The court correctly determined that Schlesinger failed to establish prima facie that plaintiff could not prevail on her “case within a case” showing that she would have won the underlying personal injury action. Plaintiff provided sufficient detail and testimony to provide a jury with a nonspeculative basis for finding that the accident was caused by the condition of the raised roadway (see Taveras v 1149 Webster Realty Corp., 134 AD3d 495, 496-497 [1st Dept 2015], affd, 28 NY3d 958 [2016]). That plaintiff gave some inconsistent testimony was a credibility issue, not subject to determination on summary judgment (see Latif v Eugene Smilovic Hous. Dev. Fund Co., Inc., 147 AD3d 507, 508 [1st Dept 2017]).

Whether the condition was open and obvious is generally an issue of fact (see Tagle v Jakob, 97 NY2d 165, 169 [2001]). Even were the condition to be found open and obvious, defendants in the underlying action would still have an obligation to maintain the [*2]property in a reasonably safe condition (see Westbrook v WR Activities-Cabrera Mkts., 5 AD3d 69, 70 [1st Dept 2004]).”

These are the two lessons found in Marcum LLP v L’Abbate, Balkan, Colavita & Contini, L.L.P. 2023 NY Slip Op 06443 Decided on December 14, 2023 Appellate Division, First Department an ironic case in which a major legal malpractice defense firm was sued for legal malpractice and they were defended by a friendly competitor major legal malpractice defense firm.

“Supreme Court correctly concluded that defendants, L’Abbate, Balkan, Colavita & Contini, L.L.P. (LBCC) and Marianne S. Conklin, who represented plaintiff in an underlying action alleging accounting malpractice, among other things, were entitled to dismissal of the complaint given that plaintiff failed to allege that defendants were negligent or that they proximately caused any damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Fielding v Kupferman, 65 AD3d 437, 442 [1st Dept 2009]). Plaintiff alleged that in the underlying action, defendants’ supplemental discovery production, which included responsive documents that had been inadvertently withheld, such as declarations submitted in connection with a federal investigation into one of plaintiff’s clients, precipitated a coverage dispute with its insurers. That dispute led to plaintiff having to retain other coverage counsel and to ultimately contribute to the settlement in the underlying action.

Although plaintiff contends that the declarations were subject to grand jury secrecy rules, plaintiff did not allege that either of the employees who composed the declarations testified before a federal grand jury, or that the declarations were entered into evidence. Thus, the declarations were not subject to the general rule of grand jury secrecy because they were not “evidence actually presented to [the grand jury]” nor “anything that may tend to reveal what transpired before it” (see United States v Eastern Air Lines, Inc., 923 F2d 241, 244 [2d Cir 1991], citing Fed Rules Crim Pro rule 6[e][2]). Accordingly, plaintiff failed to allege that defendants’ conduct breached its duty of care.

Even if defendants negligently produced the documents, plaintiff did not adequately allege that defendants’ actions were the proximate cause of the claimed damages, including plaintiff’s contribution to the settlement and retention of coverage counsel (see Fielding v Kupferman, 65 AD3d at 442). Plaintiff does not dispute that, even if the declarations were subject to privilege or grand jury secrecy rules, defendants would have had to provide notice those documents were being withheld from production because they were responsive (see CPLR 3122[b]). Moreover, plaintiff acknowledged that the insurers were previously aware of the federal investigations into its client and several of plaintiff’s employees. Plaintiff’s claim rests on the assumption that if defendants had not produced the documents, its adversaries and insurers would not have requested or compelled them, so the insurers would not have initiated [*2]the coverage dispute and would have instead fully funded the settlement. This speculation is insufficient to establish that defendant’s malpractice, if any, was a proximate cause of plaintiff’s losses (see Brooks v Lewin, 21 AD3d 731, 734-735 [1st Dept 2005], lv denied 6 NY3d 713 [2006]).

Supreme Court also correctly dismissed that part of the legal malpractice claim seeking disgorgement of attorneys’ fees paid to LBCC, which is, essentially, a claim for monetary damages in connection with its legal malpractice claim (see Access Point Med., LLC v Mandell, 106 AD3d 40, 44 [1st Dept 2013]). Defendant was not discharged for cause, nor did it charge legal fees for any work associated with the motion practice ensuing from the supplemental disclosures (see Decolator, Cohen & DiPrisco v Lysaght, Lysaght & Kramer, 304 AD2d 86, 91 [1st Dept 2003]). Since the underlying legal malpractice claim is dismissed, the claim for disgorgement must be dismissed as well (see Cambridge Capital Real Estate Invs., LLC v Archstone Enter. LP, 137 AD3d 593, 596 [1st Dept 2016]).”

Holland & Knight LLC v Walsam 316, LLC 2023 NY Slip Op 33748(U)
October 17, 2023 Supreme Court, New York County Docket Number: Index No. 654470/2022 Judge: Dakota D. Ramseur has a third lesson in attorney billing litigation. How does a Judiciary Law 487 defense to the bills fare?

“In November 2022, plaintiff Holland & Knight LLC commenced the instant action
against defendant Walsam 316, LLC to recover outstanding legal fees Walsam accrued as part of plaintiffs legal representation in an underlying case entitled Walsam 316 LLC et al v 316 Bowery Realty Corp. et al. (NYSCEF index no. 153318/2017). In this motion sequence (001), plaintiff moves pursuant to CPLR 3211 (a) (1) and (a) (7) to dismiss Walsam’s counterclaims, wherein Walsam alleges, individually and on behalf of a putative class, that plaintiff invoiced for legal research that the parties’ retainer agreement did not permit. The motion is opposed. As part of this same motion sequence, Walsam cross-moves pursuant to CPLR 602 to consolidate this action with its malpractice action against plaintiff Walsam 316, LLC, et al. v Thompson & Knight, e. al. 1 (NYSCEF index. No. 156653/2022). For the following reasons, plaintiffs motion
to dismiss is granted in its entirety, and the cross-motion is deemed moot.”

“Under Judiciary Law§ 487, an attorney who “(1) is guilty of any deceit or collusion … or
(2) willfully delays his client’s suit with a view to his own gain; or willfully receives any money or allowance for or on account of any money which he has not laid out” is guilty of a misdemeanor, and liable to the injured client for treble damages. (Judiciary Law § 487.) For a law firm to be liable to their client under § 487, the client must allege a chronic and extreme pattern oflegally delinquent, wrongful, or deceitful behavior. (Freeman v Brecher, 155AD3d 453,454 [1st Dept 2017], citing Kaminsky v Herrick, Feinstein LLP, 59 AD3d 1, 13 [1st Dept 2008]; see also Kaufman v Maritt Hock Hamroff, LLP, 192 AD3d 1092, 1093 [2d Dept 2021] [“Relief pursuant to Judiciary Law S 487 ‘is not given lightly’ and requires a showing of ‘egregious conduct or chronic and extreme pattern of behavior on the part of defendant attorneys’.]) Allegations of excessive billing for services rendered and overinflated fees do not rise to the level of wrongful conduct required for liability to attach on a §487 claim. (See Chowaiki & Co. Fine Art Ltd. v Lacher, 115 AD3d 600, 601 [1st Dept 2014] [allegations that client was excessively billed and then threatened and coerced into paying the excessive and overinflated fees did not establish the “existence of a chronic and/or extreme pattern of legal delinquency”]; Rodriguez v Jacoby & Meyers, LLP, 2014 WL 3421053 at *5 [Sup. Ct. NY County 2014] [ allegations of defendants’ delaying plaintiffs lawsuit for their own gain and false
billing statements did not establish a chronic and extreme pattern of legal delinquency or intentionally egregious misconduct under§ 487], ajf’d 126, AD3d 606, 608 [1st Dept 2015] [“There is no evidence that defendants engaged in misconduct constituting a violation of Judiciary Law§ 487.]) Walsam’s Judiciary Law§ 487 claim is based solely on the nine invoices containing the allegedly false billings for Westlaw and Lexis access. Even if proven, Walsam’s misconduct allegations do not rise to the level required by Judiciary Law § 487.5 Accordingly, this counterclaim is dismissed pursuant to CPLR 3211 (a) (7).”

Holland & Knight v. Walsam,316 LLC, , which we discussed on Monday December 11, 2023 has three lessons about attorney billings. The first is how electronic research monthly fees to the law firm can be attributed to the client. The second, which we highlight today is how the account stated principle works in favor of the law firm.

“In January 2019, Walsam retained Holland & Knight and its partners Michael
Blumenthal and Stuart Glick to represent it in an indemnification action it commenced against non-party 316 Bowery Realty Corp. The parties executed an Engagement Letter that, among other things, defined the scope of plaintiffs representation (i.e., to “represent Walsam in connection with analysis of documents and pleadings to advise Walsam on prospective strategy in the lawsuit … against 316 Bowery Realty Corp.”) and listed the hourly rates of its partners. (NYSCEF doc. no. 2 at 1-2, Engagement Letter.) In pertinent part, the Letter also provides, “In addition to legal fees, the Firm charges for out-of-pocket costs and expenses incurred in representing Walsam. These costs and expenses include, but are not limited to, filing fees, travel expenses … and charges for the Firm’s access to and use of any electronic research services on Walsam ‘s behalf(emphasis added).” (Id. at 3.) The Engagement Letter continues, “By entering
into this representation agreement, Walsam agrees to timely pay the Firm’s invoices for fees and expenses related to the representation.” (Id.)

In March 2019, Walsam executed an addendum to the Letter that expanded plaintiffs
representation to include acting as special counsel defending a tenant rent overcharge proceeding against it in Supreme Court, New York County. (That action, Peter Arnold et al. v 4-6 Bleecker Street LLC et al., has the NYSCEF Index no. 158541/2013.) By Decision and Order dated October 18, 2019, this Court [Chan, J.] granted the tenants in that action summary judgment and entered a $2,081,539.02judgment against the named defendants, including Walsam. In August 2022, Walsam commenced a malpractice action-Walsam 316, LLC, et al. v Thompson & Knight, et al., the same action with which Walsam seeks to consolidate-against plaintiff, Blumenthal, and Glick. By Decision and Order dated August 2, 2023, the Court [Ramseur, J.] granted plaintiffs motion to dismiss the complaint in its entirety. (NYSCEF index no. 156653/2022, doc. no. 42.)”

“But even were plaintiff not entitled to summary judgment pursuant to CPLR 3211 (a) (1),it is entitled to dismissal of plaintiffs breach of contract counterclaim under the account stated doctrine. “Where an account is rendered showing a balance, the party receiving it must, within a reasonable time, examine it and object, if he disputes its correctness. If he omits to do so, he will be deemed by his silence to have acquiesced, and will be bound by it as an account stated, unless fraud, mistake or other equitable considerations are shown.” (Shaw v Silver, 95 AD3d 416, 416 [1st Dept 2012].) Where a client receives invoices from its law firm seeking payment for professional services rendered, and the client fails to object within a reasonable time, the law firm has an actionable account stated cause of action. (Levisohn, Lerner, Berger & Langsam v
Gottlieb, 309 AD2d 668, 668 [1st Dept 2003].) The same principle applies where the doctrine is invoked by the law firm in defense of a breach of contract claim brought by the client. (Atsco Footwear Holdings, LLC v KBG, LLC, 193 AD3d 493, 494-495 [1st Dept 2021]; An-Jung v Rower, LLC 173 AD3d 488,488 [1st Dept 2019] [holding breach of contract claims should be dismissed in light of defendants’ account stated defense where retainer required objections to be raised within 30 days of receipt of the invoice, plaintiff timely paid the invoices, and did not object to any of them until two months after she received the last one].)

Here, plaintiff sent nine invoices containing charges for electronic research conducted on Walsam’s behalf. (See NYSCEF doc. no. 16, invoices.) Of these nine, four accrued from March through October 2019; one from January 2020; and the final four from April through September 2021 (NYSCEF doc. no. 13 at ,i 4-5, Blumenthal affidavit.) Walsam promptly paid the first five invoices; only the final four remain unpaid. (Id. at ,J5.) The parties do not dispute that the Engagement Letter provides, “If Walsam has questions or concerns about the fees and expenses, please contact us promptly.” Nor does Walsam dispute that it did not object to any of the invoices until March 2023, when it answered and interposed counterclaims, approximately seventeen months after it received the final invoice.4 (See NYSCEF doc. no. 23 at 14; NYSCEF doc. no. 13 at ,J7-8, Blumenthal affidavit.) By submitting copies of its invoices outlining services rendered and billable hours and attesting to Walsam’s failure to object within a reasonable time,
plaintiff has made a prima facie showing of an account stated. (Law Offs of Clifford G.
Kleinbaum v Shurkin, 88 AD3d 659, 660 [2d Dept 2011]”

Holland & Knight LLC v Walsam 316, LLC 2023 NY Slip Op 33748(U) October 17, 2023
Supreme Court, New York County Docket Number: Index No. 654470/2022
Judge: Dakota D. Ramseur cover three important areas in legal malpractice. The first is how law firms may charge clients in a charging lien or a fee claim for fixed monthly electronic research costs, the second is an application of account stated, and the third is an analysis of a Judiciary Law 487 counterclaim. This article will deal with the legal research issue.

“Plaintiff commenced this action to recover $410,539.06 in alleged legal fees Walsam
accrued, of which $26,415.60 is connected to the tenants’ rent overcharge proceeding and $384,123.46 from the indemnification proceeding. (NYSCEF doc. no. 1 at ,i 11, complaint; NYSCEF doc. no. 3, schedule of outstanding invoices.) In March 2023, Walsam answered and interposed counterclaims, both individually and on behalf of a putative class. It alleges that the Engagement Letter between the parties required
Walsam to pay only for “out-of-pocket costs and expenses incurred” on its behalf; instead, plaintiff billed $1,983.46 2 in overhead costs for legal research plaintiff conducted through its subscription to WestLaw and/or Lexis research engines. (NYSCEF doc. no. 7 at ,i 25, 31-36, answer with counterclaims.) As to why the subscription amounts to an overhead cost, Walsam alleges that plaintiff entered a subscription agreement with one or both of these research services, that it paid a flat monthly price for access, and that the price paid for such services did not depend on the amount of legal research performed by the firm for a particular client. (Id. at ,i 32, 34.) In Walsam’ s view, the subscription costs plaintiff invoiced for “was not incurred on behalf of plaintiff or any other firm client.” (Id. at 34.) Plaintiff asserts counterclaim causes of action for
breach of contract, violation of Judiciary Law § 487, fraud, and unjust enrichment. As to
Walsam’ s class claims, it defines the proposed class as: “All clients of Thompson & Knight and Holland & Knight, LLC who, after March 17, 2017, paid charges billed by the firm for online legal research and/or information retrieval services (such as Westlaw or LEXIS) that were within the scope of the firm’s regular subscription with the provider.” (Id. at 39.)”

“Under established principles of contract interpretation, agreements are construed in
accordance with the parties’ intent, which is best manifested by the language used in their writing. (See Osprey Partners, LLC v Bank of NY Mellon Corp., 115 AD3d 561, 561-562 [1st Dept 2014].) Where contractual terms are clear and unambiguous, “the intent of the parties must be found within the four corners of the document.” (ABS Partnership v AirTran Airways, (AD 3d 24, 29 [1st Dept 2003].) Here, plaintiff contends that the content of the Engagement Letter is unambiguous: it permits plaintiff to invoice for “charges for the Firm’s access to and use of any electronic services on Walsam’ s behalf.” Plaintiff further contends that, per the Letter, charges for use of Westlaw and/or Lexis, are considered “out-of-pocket” expenses-as opposed to
overhead expenses-since (1) the language “these costs and expenses include” (which then references the electronic research-related access) refers back to the preceding sentence’s specific mention of “out-of-pocket costs and expenses” and (2) the common understanding of “out-of pocket” is as “an expense paid from one’s own fund” (see Black’s Law Dictionary [11th ed 2019], expense) and that is how plaintiff paid for its subscriptions.

In its memorandum of law in opposition, Walsam entirely fails to address the
Engagement Letter’s specific clause authorizing plaintiff to charge for access to and use of Westlaw and Lexis; instead, it focuses solely on the other, broader clause in the Letter that requires Walsam to timely pay for all “fees and expenses” related to plaintiffs representation. (NYSCEF doc. no. 23 at 12-13.)3 When looking at the broader clause, Walsam suggests that the Letter is, at best, “conflicting and ambiguous” as to whether the Letter permits charging for research and argues the contract must be construed against the drafter (Id. at 12) But whether the broader clause is unambiguous, as Walsam claims, is ultimately immaterial: the more specific clause appears to directly allow for the charges to which Walsam objects and Walsam has advanced no argument as to why this reading of the clause is erroneous, including why the term “out-of-pocket,” given plaintiffs definition, does not include the complained-of research charges
and why plaintiffs actual research was not conducted “on behalf of’ Walsam. Accordingly, the Court need not take recourse and construe any ambiguities in the agreement against the drafter. Walsam’ s citations on this account are misplaced. Since there is no dispute as to the Engagement Letter’s authenticity, and since the Court finds that its contents are unambiguous and establish, as a matter oflaw, that plaintiff did not breach its terms, dismissal is warranted.”

May Dock Lane, LLC v Harras Bloom & Archer, LLP 2023 NY Slip Op 06244 Decided on December 6, 2023 Appellate Division, Second Department illustrates the depth to which the Courts and the AD will go in considering a CPLR 3211 motion. We submit that this depth is not matched in medical malpractice cases, nor in personal injury or even commercial litigation matters.

“The plaintiff commenced this action, inter alia, to recover damages for legal malpractice against, among others, Harras Bloom & Archer, LLP, and Paul Bloom (hereinafter together the defendants). The plaintiff alleged, among other things, that it retained the defendants to assist with its purchase of certain real property, which the plaintiff intended to subdivide into four lots, and that due to the defendants’ deficient representation, the plaintiff was only able to subdivide the property into three lots. The plaintiff also alleged that due to the defendants’ deficient representation, the owners of adjacent property refused to honor an easement to use a dock and beach area on their property for two of the three subdivided lots on the property acquired by the plaintiff. The defendants moved, inter alia, pursuant to CPLR 3211(a) to dismiss the cause of action alleging legal malpractice insofar as asserted against them. In an order entered September 29, 2021, the Supreme Court, among other things, denied that branch of the defendants’ motion. The defendants appeal.”

“Here, even accepting the facts as alleged in the amended complaint to be true and according the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d at 87-88), the amended complaint failed to state a cause of action for legal malpractice. To the extent the amended complaint alleged that due to the defendants’ deficient representation, the plaintiff could not make use of an easement on the adjacent property for two of the three subdivided lots, the plaintiff’s allegations were conclusory and speculative (see 126 Main St., LLC v Kriegsman, 218 AD3d 524). Moreover, while the amended complaint alleged that a typo in an assignment of easement prepared by the defendants proximately caused the plaintiff to be subjected to a separate lawsuit regarding the easement, the defendants’ evidentiary submissions demonstrated that the typo was not a basis for the separate action.

Furthermore, the evidentiary submissions demonstrated that the plaintiff chose to submit a new proposal to subdivide its property into three lots following a suggestion made during a Planning Board meeting to consider changing the plan from a four-lot subdivision to a three-lot subdivision. Thus, the defendants demonstrated that material facts alleged in the amended complaint with respect to the allegation that the defendants proximately caused the plaintiff to only be able to subdivide the property into three lots were not facts at all, and that no significant dispute exists regarding them (see 50 Clarkson Partners, LLC v Old Republic Natl. Tit. Ins. Co., 206 AD3d 956, 958). Moreover, the amended complaint failed to set forth facts sufficient to allege that the defendants’ representation proximately caused the plaintiff to incur expenses associated with delays in the approval of the plaintiff’s application for subdivision.”

Suzuki v Greenberg 2023 NY Slip Op 05455 Decided on October 26, 2023
Appellate Division, First Department is the extremely rare successful Judiciary Law 487 claim. The AD noted that in the First Department a single egregious act can be sufficient, and that no “chronic pattern” is required as it is in the Second Department.

“Defendant, an attorney, represented plaintiff’s former husband in the matrimonial action underlying this action. During the course of the matrimonial proceedings, defendant knowingly failed to inform the court that in accordance with neglect and custody proceedings held in Kings County Family Court, plaintiff had been awarded primary physical custody of the child of the marriage. Defendant also prepared an affidavit for his client, falsely stating that the client had never been party to a neglect proceeding and asserting that the client was the child’s custodial parent. In addition, defendant submitted a final judgment of divorce awarding primary physical custody of the child to his client on the basis of stipulated agreements between plaintiff and the client even though those agreements had been signed three years before the Kings County proceedings. Defendant then presented an order to show cause to hold plaintiff in contempt of court for not complying with the custody provisions in the judgment of divorce.

Plaintiff established her entitlement to summary judgment by submitting evidence that defendant had intentionally failed to apprise the court of the Kings County custody order, thus affirmatively misrepresenting the existence of adverse information relevant to the proceedings (see Schindler v Issler & Schrage, P.C., 262 AD2d 226, 227 [1st Dept 1999], lv denied 94 NY2d 859 [1999]). This evidence was sufficient to establish “egregious conduct” under Judiciary Law § 487 (see id.). Despite defendant’s position otherwise, a plaintiff need not demonstrate a chronic pattern of delinquency to recover on a Judiciary Law § 487 action; on the contrary, a single egregious act, such as the one presented here, is sufficient (see e.g. Mazel 315 W. 35th LLC v 315 W. 35th Assoc. LLC, 120 AD3d 1106, 1107 [1st Dept 2014]).

Furthermore, the court properly awarded treble damages despite the fact that plaintiff had already been awarded attorney’s fees in the matrimonial action. The matrimonial court found that plaintiff had been damaged by defendant’s deceitful conduct to the extent she incurred attorney’s fees to address and rectify the fraudulent order procured through that conduct and to defend against the contempt motion, but the matrimonial court could not and did not entertain a claim for treble damages, which Judiciary Law § 487 authorizes by way of a separate legal action (see Melcher v Greenberg Traurig LLP, 135 AD3d 547, 554 [1st Dept 2016]). In any event, the purpose of awarding [*2]treble damages for a violation of Judiciary Law § 487 is to punish a lawyer for his misconduct and to deter him from future misconduct, rather than to compensate a plaintiff for her injury (see Jean v Chinitz, 163 AD3d 497, 499 [1st Dept 2018]).

We reject defendant’s argument that his conduct merely constituted zealous representation of his client’s interests (see Mazel 315 W. 35th, 120 AD3d at 1107). Defendant had an ethical duty as an officer of the court to uphold the integrity of the court and not to subvert its truth-seeking process for the improper benefit of his client (see Amalfitano v Rosenberg, 12 NY3d 8, 14 [2009]).”