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]).”

Salus v Berke 2023 NY Slip Op 06183 Decided on November 30, 2023 Appellate Division, Third Department is a case on the correct application of Judiciary Law 487 claims that an attorney took too much of a fee in a contingent representation.

“Plaintiff Gregory J. Salus is the beneficiary of the residuary clause of the will of his mother (hereinafter decedent), and plaintiff Robert Russo is the executor of the estates of decedent and her husband. Salus hired defendants to represent him in two matters to settle the estates of decedent and her husband. The retainer agreement provided that defendants would receive one third of “any recovery by suit, settlement or otherwise” stemming from their representation of Salus in the matters regarding the estates. Defendants represented Salus in negotiations between Russo and Salus’ stepsisters to settle a disagreement over the allocation of an award received from decedent’s husband’s medical malpractice settlement. The negotiations resulted in Salus directly receiving $370,000 as well as $100,000 as the beneficiary of the residuary of decedent’s estate. As such, defendants included this $100,000 — in addition to the $370,000 — when calculating their legal fee.”

“In support of their motion, defendants submitted plaintiffs’ complaint, attached to which, as relevant here, is decedent’s will, a January 2020 amended decree from the Kings County Surrogate’s Court, the retainer agreement between Salus and defendants and a March 2020 settlement agreement. The January 2020 amended decree, which predates defendants’ representation of Salus, demonstrates that as part of the settlement of a medical malpractice/wrongful death action on behalf of decedent’s husband, decedent’s estate was to be paid $100,000 for decedent’s distributive share. Decedent’s will provides, in relevant part, that the proceeds that resulted from the medical malpractice claim were to be distributed to Salus’ stepsisters and that any residuary property be distributed to Salus. Thus, under the January 2020 amended decree, Salus would not receive anything from decedent’s husband’s medical malpractice/wrongful death action. The retainer agreement, signed in February 2020, specifies that defendants’ representation of Salus was for legal services constituting intervention and representation in “two pending matters in Surrogates Court, Kings County concerning” decedent’s estate and the estate of decedent’s husband. The agreement, which was attached to the complaint, provided that the legal fee would be computed at “33⅓% . . . of any recovery by suit, settlement or otherwise.” Finally, the March 2020 settlement agreement specifies that its purpose was to compromise the cause of action for wrongful death of decedent’s husband and to settle the accounts of decedent’s husband’s estate as well as decedent’s estate. This settlement agreement provided that, in relevant part, Salus’ stepsisters “waive all of their rights to any assets or any portion of the assets of the estate of [decedent].” Because of this waiver, $100,000 of the medical malpractice/wrongful death settlement which would have previously been distributed to Salus’ stepsisters would instead ultimately fall to the residuary of decedent’s estate, of which Salus was the sole beneficiary. Under the settlement agreement, Salus was also to receive $370,000 directly. Defendants calculated their legal fees from the sum total of these amounts, $470,000.

Although Supreme Court was correct that plaintiffs sufficiently pleaded the breach of contract cause of action, it erred by not considering defendants’ proffer, specifically, the retainer agreement, which conclusively establishes a defense as a matter of law. Indeed, the language in the retainer agreement is clear that defendants’ legal fee would be computed at “33⅓% . . . of any recovery by suit, settlement or otherwise.” By their involvement in the March 2020 settlement, Salus was awarded not only $370,000, but also the $100,000 that, prior to defendants’ representation of Salus, would have been distributed to Salus’ [*3]stepsisters. As such, defendants submitted undisputed documentary evidence that conclusively establishes a defense as a matter of law (see Matter of Lewis v Dagostino, 199 AD3d at 1222-1223; Jenkins v Jenkins, 145 AD3d 1231, 1235-1236 [3d Dept 2016]). In light of this determination, plaintiffs’ fifth cause of action alleging a violation under Judiciary Law § 487 must also be dismissed inasmuch as the documentary evidence establishes that defendants were entitled to the full amount received under the retainer agreement. Accordingly, defendants’ proffer conclusively establishes that they did not “intentionally deceive[ ] the court or a party during the pendency of a judicial proceeding” (A.M.P. v Benjamin, 201 AD3d 50, 57 [3d Dept 2021] [internal quotation marks and citations omitted]; see Judiciary Law § 487 [1]).”

Huli Ma v Hui Chen 2023 NY Slip Op 06031 Decided on November 22, 2023
Appellate Division, Second Department is a Connecticut and New York legal malpractice claim that the attorney was also a business partner with Plaintiff.

“In an action, inter alia, to recover damages for breach of fiduciary duty, legal malpractice, fraud, and conversion, the plaintiff appeals, and the defendant Hui Chen cross-appeals, from an order of the Supreme Court, Queens County (Robert J. McDonald, J.), entered April 21, 2021. The order, insofar as appealed from, granted those branches of the motion of the defendant Hui Chen which were pursuant to CPLR 3211(a) to dismiss the first and fifth causes of action insofar as asserted against him and so much of the second, third, fourth, and sixth causes of action insofar as asserted against him as sought to recover damages relating to a real estate transaction involving certain property located in Flushing. The order, insofar as cross-appealed from, denied those branches of that defendant’s motion which were pursuant to CPLR 3211(a) to dismiss so much of the second, third, fourth, and sixth causes of action insofar as asserted against him as sought to recover damages relating to a real estate transaction involving certain properties located in Stamford, Connecticut, and to impose sanctions and for an award of costs and attorneys’ fees pursuant to 22 NYCRR 130-1.1.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendant Hui Chen which was pursuant to CPLR 3211(a) to dismiss the first cause of action insofar as asserted against him, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.”

“With respect to the Stamford transaction, the amended complaint alleged that in or about September 2016, the defendant persuaded the plaintiff to purchase six condominium units in Stamford, Connecticut. The plaintiff alleged that she later learned that the condominium units had been “flipped” by the defendant and his business partner to sell to the plaintiff at a price over and above the market price. The plaintiff alleged that the Stamford transaction netted the defendant and his business partner “approximately $139,000 profit all at [her] expense.”

With respect to the Flushing transaction, the amended complaint alleged that in or about June 2017, the defendant told the plaintiff that he had several investors who were investing in a property in Flushing (hereinafter the Flushing property). The defendant told the plaintiff that he and the investors would each invest $2,000,000 to purchase the Flushing property. The defendant later told the plaintiff that $500,000 of his pledged investment was “tied up in China,” and he needed to borrow $500,000 from the plaintiff to avoid “losing a substantial . . . down payment.” The plaintiff agreed to lend the defendant the $500,000, and the defendant presented the plaintiff with a “Redemption Agreement” reflecting the loan, which increased the loan amount to $666,360. The amended complaint alleged that the defendant failed to repay the $666,360 as required by the redemption agreement.”

“”A release is a contract, and its construction is governed by contract law” (Schiller v Guthrie, 102 AD3d 852, 853 [internal quotation marks omitted]; see Cardinal Holdings, Ltd. v Indotronix Intl. Corp., 73 AD3d 960, 962). “Generally, a valid release constitutes a complete bar to an action on a claim that is the subject of the release” (Nucci v Nucci, 118 AD3d 762, 763; see Burnside 711, LLC v Amerada Hess Corp., 175 AD3d 557, 559). “If the language of a release is clear and unambiguous, the signing of a release is a jural act binding on the parties” (Nucci v Nucci, 118 AD3d at 763; see Booth v 3669 Delaware, 92 NY2d 934, 935; Mangini v McClurg, 24 NY2d 556, 563). “Where the release is unambiguous, a court may not look to extrinsic evidence to [*3]determine the parties’ intent” (Burgos v New York Presbyt. Hosp., 155 AD3d at 600). A defendant bears the initial burden of establishing that he or she has been released from any claims (see Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 NY3d 269, 276).

The Supreme Court erred in granting that branch of the defendant’s motion which was to dismiss the first cause of action, alleging breach of the redemption agreement, insofar as asserted against him. It cannot be determined as a matter of law whether the release was intended to discharge the defendant from a cause of action that both relates to the Flushing property and seeks to enforce the redemption agreement (see Galster Rd. Props., LLC v Penske Truck Leasing Co., L.P., 195 AD3d 1502, 1502-1503; Mazzurco v PII Sam, LLC, 153 AD3d 1341, 1342; Desiderio v Geico Gen. Ins. Co., 107 AD3d 662, 663).”

Santaro v Finocchio 2023 NY Slip Op 05836 Decided on November 17, 2023 Appellate Division, Fourth Department illustrates the inherent bias towards attorneys that courts have always taken. Not forgetting that attorneys write and legislate the rules, which are then applied and considered by attorneys who are judging other attorneys, it is no surprise that the rules favor attorneys. The social policy is to limit legal malpractice cases so that every litigation is not followed by a pair of legal malpractice claims.

That being said, in this case there was limited to no damages cognizable. The Appellate Division wrote:

“Memorandum: In this legal malpractice action, plaintiff seeks damages for the alleged negligence of defendants in their representation of him in a proceeding pursuant to Family Court Act article 4. As alleged in the complaint in this action, defendants prepared and timely filed objections to the Support Magistrate’s order in the Family Court proceeding on August 19, 2019. Although defendants possessed an affidavit of mailing sworn to on August 19, 2019, detailing service of the objections that same day, defendants did not file the affidavit of mailing until two days later, on August 21, 2019.

Family Court sua sponte dismissed the objections based upon defendants’ failure to strictly comply with Family Court Act § 439 (e) by failing to file proof of service at the same time as the objections. However, on appeal, this Court reversed, reinstated the objections, and remitted the matter to Family Court for further proceedings on the objections, holding that “[s]trict adherence to this deadline is not required” and that, under the circumstances, dismissal of the objections was not warranted (Matter of Sigourney v Santaro, 192 AD3d 1482, 1483 [4th Dept 2021] [internal quotation marks omitted]). In so holding, this Court noted that there was no dispute that the two-day delay did not result in any prejudice inasmuch as the petitioner in the Family Court proceeding was served with a copy of the objections within the statutory time period (see id.).”

“Although Family Court may properly dismiss objections for failure to comply with Family Court Act § 439 (e) under some circumstances (see generally Matter of Minka v Minka, 219 AD2d 810, 810-811 [4th Dept 1995]), strict compliance with the statute is not always required (see Sigourney, 192 AD3d at 1483). Here, the complaint alleged that defendants timely filed the objections, possessed an affidavit of mailing detailing proper service on the day of filing, and delayed just two days in filing proof of service, and the complaint also alleged that opposing counsel filed a rebuttal. Contrary to plaintiff’s contention, the allegations in the complaint do not support even an inference that any prejudice was caused by the two-day delay, nor do they support any inference that such delay would warrant dismissal of the objections by Family Court. Consequently, we conclude that plaintiff’s allegations, even if accepted as true, fail to allege a prima facie case of legal malpractice (see CPLR 3211 [a] [7]; Leder, 9 NY3d at 837).”

Roedelbronn v Borstein & Sheinbaum LLC 2023 NY Slip Op 05670 Decided on November 09, 2023 Appellate Division, First Department demonstrates the interplay between appeals (and other findings) in the underlying case and success in a subsequent legal malpractice case. Here, the court initially found that the continuing representation doctrine successfully tolled the statute of limitations for legal malpractice. It went on to hold that a subsequent appeal from the matrimonial judgment undercut the legal malpractice claims.

“Plaintiff’s contention that the continuous representation doctrine tolled the statute of limitations has merit given that the attorneys who represented plaintiff in the divorce proceeding when the alleged malpractice occurred, continued to represent plaintiff in the same proceeding, “albeit while at different law firms” (Boesky v Levine, 193 AD3d 403, 405 [1st Dept 2021]). Nevertheless, plaintiff’s argument with respect to her malpractice claim is unavailing.

On appeal, plaintiff limits her claim to the value and percentage award of the Agrifos business assets based upon the alleged malpractice of Borstein & Sheinbaum at the 2015 hearing, i.e., that the Special Referee and Supreme Court ignored the justifications for the 40% award in two other assets by awarding her only 10% of the value of Agrifos, her former husband’s fertilizer business. However, this Court previously affirmed the 10% award of the Agrifos assets, applying the well-settled rule that marital assets do not have to be divided equally (Cotton v Roedelbronn, 170 AD3d, 595, 595-596 [1st Dept 2019], citing Arvantides v Arvantides, 64 NY2d 1033, 1034 [1985]). Plaintiff’s attempt to relitigate this issue is unavailing and the conclusory allegations do not adequately state a claim for malpractice (see Garr Silpe, P.C. v Gorman, 192 AD3d 633 [1st Dept 2021]; Olsen v Smith, 187 AD3d 675, 675 [1st Dept 2020]; Sitomer v Goldweber Epstein, LLP, 139 AD3d 642, 643 [1st Dept 2016], lv denied 28 NY3d 908 [2016]).THIS CONSTITUTES THE DECISION AND ORDER”