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”

In Mrkulic v Peters 2023 NY Slip Op 33930(U) November 2, 2023
Supreme Court, Kings County Docket Number: Index No. 505025/2020
Judge Debra Silber points out a vast number of errors that took place before she was assigned to the case. She rules that none can be fixed by her.

“In Motion Sequence #6, defendants move to reargue the court’s last decision in
this case, issued on August 8, 2023, for motion sequence #5, which granted plaintiff’s
motion to reargue the court’s decision on motion sequence #3, and, upon reargument,
reinstated the prior order, which found defendants in default. The court denies
defendants leave to reargue.”

“The court notes that there are errors in some of the prior orders issued under the
2012 index number, as well as under this index number, but they are not this court’s
errors, and this court cannot fix them. For example, in the personal injury case brought
in 2012, one defendant (Carlisle) moved to vacate his default and dismiss the case
against him on June 21, 2019, after the plaintiff’s attorney (defendant in this action) had
successfully obtained the attachment of Carlisle’s bank account and the garnishment of
his salary. The court denied his motion, by order dated July 23, 2019, as “moot”, citing
an order dated January 18, 2018, which he states dismissed the entire case, and then
the court lifted the restraints on Carlisle’s bank account and returned his garnished funds. But the order of January 18, 2018 did not dismiss the case, as the case had been
disposed by the entry of judgment in 2013, it restored it.
The file is filled with subsequent activity, all of which is for one reason or another,
improperly carried out. For example, plaintiff’s prior attorney stipulated, after the judgment was entered, to vacate the judgment against the defendant Zen Palate and allow Zen Palate and Theresa Hwa to answer. It also changed the name of Zen Palate Union Square LLC to Platinum Z, Inc. d/b/a Zen Palate, but the caption was never actually amended, as the stipulation was not “so-ordered,” and the judgment was not actually vacated. Nor was the case restored so a preliminary conference could be held. Nonetheless, these defendants filed an answer to the complaint. Then, another
defendant, Mr. Lindo, made a motion to vacate his default, and a stipulation was filed
discontinuing the action against him. Then, defendants here, in 2017, realized that the
stipulation permitting the two defendants to answer had not restored the case to active
status, as it was post-judgment, and defendant Peters made a motion for this relief. It
was granted, and the January 18, 2018 order restored it and set it down for a preliminary conference. Unfortunately, this order also vacated the entire judgment. It did not dismiss the case.

By a subsequent order dated May 17, 2018, however, the judge in the Intake part
did dismiss the case, for plaintiff’s not appearing for a preliminary conference. Instead of just the case against Zen Palate and Ms. Hwa being dismissed, because the entire
judgment had been vacated, that order dismissed the entire case and plaintiff had to move to restore the case. He did so, which was granted by the January 18, 2018 order.

Then, Carlisle made his motion, by order to show cause, to release the funds
frozen by his bank and have his garnished wages returned to him. He averred that he
had not been served with the summons and complaint. The affidavit of service states he was served by “nail and mail” service. As to the merits, he said that the criminal case had been dismissed as he was not the perpetrator of the assault. Plaintiff made a motion shortly after, to release Carlisle’s bank funds to plaintiff. Nobody seemed to be aware that the case had been dismissed on May 17, 2018.

On August 8, 2019, defendant herein, on behalf of plaintiff, made a motion to reinstate the default judgment, averring that it was only supposed to have been vacated as
against Zen Palate.

On October 2, 2019, plaintiff’s motion for the funds was denied as “moot.”
Plaintiff’s motion to reinstate the default judgment was granted, on a default judgment
order form which directed that Mr. Carlisle be removed from the judgment.
To be clear, instead of granting Carlisle’s motion to vacate his default and directing
him to answer the complaint, or scheduling a traverse hearing on the issue of service, as requested in his motion, the court issued an order removing Mr. Carlisle from the
judgment, but made no provision to continue the action against him, or Zen Palate and
Ms. Hwa. The fact that the case had been dismissed as against Zen Palate and Theresa
Hwa is not mentioned. The fact that it had been discontinued as against Edbert Lindo is
not mentioned. The order provides that the judgment was reinstated against all
defendants except Carlisle. The judgment had never been entered against Ms. Hwa, and it was not reinstated against her. On 3/30/23, the judgment was still on the judgment roll in the County Clerk’s office as against all original judgment debtors, with a notation “default judgment does not apply to Benjamin Carlisle.”

In this action, the defendants’ default which resulted in the March 1, 2022 order
was not placed on a default judgment order form sending the matter for an inquest on
damages, but instead an order was erroneously issued that directed judgment be entered against this defendant, an attorney, for the full amount of the personal injury case judgment entered in the 2012 case, with interest from the date of the tort. The County Clerk has entered this judgment. The order should have referred the plaintiff to an inquest to determine the plaintiff’s damages against the defendant attorney. The complaint in this action, verified by counsel on February 2, 2020, misrepresents that the judgment in the 2012 personal injury case had been vacated, which was somehow defendant’s fault, and thus plaintiff was entitled to have the full amount of his judgment against the tortfeasors entered against his attorney. However, the court did not vacate the judgment, but it did seemingly vacate it against Mr. Carlisle on October 2, 2019. Further, the complaint clearly states that defendant was hired in 2017 to enforce the judgment. He could not be responsible for interest from 2012. Counsel for plaintiff (the defendant herein) should have moved to reargue the October 2, 2019 order, so the case against Mr. Carlisle could be reinstated and he could be given time to answer the complaint. Now, plaintiff has a judgment against all of the defendants in the other action, which includes the mis-named restaurant, but not Ms. Hwa or Mr. Carlisle, who may or may not have been the tortfeasor, and a judgment against defendants herein, for the same sum, which is a duplicate recovery if the judgments are both successfully enforced.

As none of the errors were made by the undersigned, this court is powerless to
correct them. Leave to reargue is denied.”

A commonly recurring theme in legal malpractice is the application of the privity requirement. That requirement basically (always with some exceptions) prohibits legal malpractice claims against an attorney with whom the Plaintiff does not have privity of contract. One common subset arises when the attorney represents an entity, and where the individual members or shareholders have a dispute and thought the attorney represented them as well.

Blank v Petrosyants 2023 NY Slip Op 33932(U) November 1, 2023 Supreme Court, Kings County Docket Number: Index No. 517568/19 Judge: Leon Ruchelsman is an example.

“In 2013 the plaintiffs invested sums of money with the defendants· to open a restaurant and catering hall in Queens County. The plaintiffs allege they paid money and entered into a shareholder agreement. Pursuant to the agreement the defendant
Zhan Petrosyants was a sixty percent owner. and the plaintiffs :Shubaderov and Egorov were each twenty percent owners. The lawsuit alleges the defendants diverted the funds to other sources depriving them of any return upon their investments.”

” On January 30:, 2014 the defendant Zhan Petrosyants entered into a retainer agreement with Akiva Ofshtein. There is no basis to question the authenticity of the agreement and thus serves as prima facie evidence that only Petrosyants hired Ofshtein. Further, the terms bf the agreement, and plaintiff’s questions regarding some of its curious provisions, 90 not raise any questions whether the plaintiffs were also included as parties to the agreement. Thus, there is no agreement wherein Ofshtein.
agreed to represent the plaintiffs.”

” The only evidence supporting the existence of any attorney client relationship is
the subjective beliefs of the plaintiffs. Those beliefs fail to raise any questions about the existence of such relationship. Therefore, the motion seeking summary judgement dismissing all claims against Ofshtein is granted.”

In Guliyev v Banilov & Assoc., P.C. 2023 NY Slip Op 05493 Decided on November 1, 2023 Appellate Division, Second Department the clients sue in legal malpractice and say that the underlying MVA case was settled without their consent. They lose the legal malpractice on collateral estoppel grounds as well as for failure to show that they could have won the underlying case anyway.

“The plaintiff retained the defendants Banilov & Associates, P.C., and Nick Banilov (hereinafter together the Banilov defendants) to represent him in connection with an action to recover damages for personal injuries allegedly sustained as a result of a motor vehicle accident (hereinafter the underlying action). The defendant Harlan Wittenstein was of counsel to the Banilov defendants, assisting with the underlying action. Wittenstein negotiated a settlement with the defendants in the underlying action and conveyed to them that the plaintiff had accepted that settlement. The plaintiff thereafter terminated the Banilov defendants’ services and retained another law firm. The defendants in the underlying action moved to compel enforcement of the settlement. The plaintiff opposed, asserting that he did not authorize Wittenstein or the Banilov defendants to accept the settlement. Following a framed-issued hearing, the Supreme Court granted the motion to compel enforcement, concluding that Wittenstein and the Banilov defendants had the authority to settle the underlying action.

The plaintiff subsequently commenced this action against Wittenstein and the Banilov defendants to recover damages for legal malpractice, breach of fiduciary duty, and violation of Judiciary Law § 487. Wittenstein and the Banilov defendants separately moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them. In an order dated May 17, 2021, the Supreme Court granted the separate motions. The plaintiff appeals.”

“”The plaintiff is required to plead actual, ascertainable damages that resulted from the attorneys’ negligence” (Bua v Purcell & Ingrao, P.C., 99 AD3d at 847; see Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d at 716). “Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative” (Bua v Purcell & Ingrao, P.C., 99 AD3d at 848 [citations omitted]; see Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d at 716). Here, the complaint failed to plead specific factual allegations demonstrating that, but for the defendants’ alleged negligence, there would have been a more favorable outcome in the underlying action or that the plaintiff would not have incurred any damages (see Williams v Silverstone, 215 AD3d 787, 789; Katsoris v Bodnar & Milone, LLP, 186 AD3d 1504, 1506). In addition, the plaintiff is precluded by the doctrine of collateral estoppel from relitigating the issue of whether the defendants had the authority to settle the underlying action (see CPLR 3211[a][5]; Reid v Reid, 198 AD3d 993, 994; Shifer v Shifer, 165 AD3d 721, 723).”

Bachman-Richards v Pomeroy 2023 NY Slip Op 05431 Decided on October 26, 2023 Appellate Division, Third Department is the kind of case that defendants like to point out when they argue that clients cannot be trusted. The Court found that plaintiff consulted with an attorney in reaching a separation agreement from her husband. Later she alleged that she had been unrepresented while negotiating the agreement. After several further twists a legal malpractice case against her subsequent attorney was dismissed on summary judgment and affirmed in the Appellate Division.

“Plaintiff was formerly married to Benjamin Richards, with whom she had three children. In 2010, plaintiff consulted with attorney Jonathan Orkin about separating from Richards. Plaintiff then entered into negotiations with Richards and his attorney. During these negotiations, plaintiff relayed Richards’ settlement offers to Orkin, who repeatedly and strongly advised her that the offers were unreasonable and that she should not accept them. Nevertheless, plaintiff proceeded to sign Richards’ proposed settlement agreement, telling Orkin that she had her own reasons for doing so, including her wishes to move forward quickly, avoid protracted litigation and purchase her own home. Within several months of signing the agreement, however, plaintiff admitted to Orkin that she had made a “major error” in agreeing to Richards’ terms and apologized to Orkin for not following his advice.

In 2011, Richards commenced a divorce action against plaintiff on the ground of living separate and apart for one year pursuant to the separation agreement. Plaintiff retained defendant William J. Pomeroy to represent her in the divorce action, seeking his assistance in having the separation agreement vacated. On plaintiff’s behalf, Pomeroy filed a verified answer with counterclaims, alleging, among other things, that plaintiff had not been represented by counsel at the time she signed the separation agreement and that the terms in the agreement pertaining to equitable distribution, maintenance and child support were unconscionable. Richards then moved for summary judgment on this counterclaim, asserting that plaintiff had, in fact, consulted with Orkin and had signed the agreement against Orkin’s advice and, further, that the agreement was not unconscionable. Supreme Court (Mulvey, J.) partially granted the motion, and the parties proceeded to engage in further settlement negotiations. Richards made an offer to plaintiff that included increased maintenance and a higher cash payment. After consulting with Pomeroy, plaintiff accepted this offer and signed a modified separation agreement. Shortly thereafter, a judgment of divorce, incorporating the modified agreement, was entered.

In 2015, plaintiff commenced this legal malpractice action against Pomeroy and his law firm, defendant Pomeroy, Armstrong, Casullo & Monty, LLP, alleging negligent representation in the divorce action. More specifically, plaintiff claimed that Pomeroy failed to fully investigate the value of a number of shares of stock owned by Richards, abandoned the agreed-upon course of seeking vacatur of the separation agreement on the ground of unconscionability, and instead rushed her to settle, thereby forfeiting her right to equitable distribution of the shares. Following joinder of issue, defendants moved for [*2]summary judgment, and Supreme Court (McBride, J.) denied the motion, after which defendants moved to reargue. Supreme Court (Burns, J.) then granted reargument and awarded summary judgment to defendants. Plaintiff appeals from both aspects of that decision, and we affirm.”

“Through the submission of this expert affidavit, defendants established prima facie entitlement to judgment as a matter of law (see Kivo v Louis F. Burke, P.C., 187 AD3d 503, 503 [1st Dept 2020]; Nuzum v Field, 106 AD3d 541, 541 [1st Dept 2013]). As such, the burden shifted to plaintiff, who was required to provide her own expert affidavit to counter that of Julian, which she failed to do (see Kivo v Louis F. Burke, P.C., 187 AD3d at 503-504; Murray v Lipman, 162 AD3d 1659, 1659 [4th Dept 2018]; Nuzum v Field, 106 AD3d at 541; Tran Han Ho v Brackley, 69 AD3d 533, 534 [1st Dept 2010], lv denied 15 NY3d 707 [2010]; Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d 925, 926 [3d Dept 2003]). Reargument was therefore properly granted because Supreme Court (McBride, J.) misapplied the controlling law in finding that plaintiff, without an expert affidavit, had sufficiently raised a question of fact (see Davis v Zeh, 200 AD3d 1275, 1280 [3d Dept 2021]; Cascade Bldrs. Corp. v Rugar, 154 AD3d 1152, 1154 [3d Dept 2017]). Further, upon such reargument, summary judgment was appropriately awarded to defendants due to plaintiff’s failure to raise the requisite triable issue of fact (see Kivo v Louis F. Burke, P.C., 187 AD3d at 503-504; Murray v Lipman, 162 AD3d at 1659; Nuzum v Field, 106 AD3d at 541).”

Prospect Capital Corp. v Morgan Lewis & Bockius LLP 2023 NY Slip Op 33797(U)
October 25, 2023 Supreme Court, New York County Docket Number: Index No. 653941/2022 Judge: Margaret A. Chan is a very unusual example of a court hearing a reargument motion and changing its mind. The judge notes in minute detail the court’s misapprehension of the causation issues and reverses the initial dismissal.

“On October 21, 2022, Plaintiff Prospect Capital Corporation (Prospect or
plaintifO commenced this action against Defendants Morgan Lewis & Bockius LLP
(Morgan Lewis) and Matthew Schernecke (together, defendants), alleging a claim
for legal malpractice in connection with legal services rendered by defendants while
negotiating the terms of a debt subordination agreement on plaintiffs behalf
(NYSCEF # 2 – compl). Defendants thereafter moved pursuant to CPLR 321l(a)(l)
and (a)(7) for an order dismissing plaintiffs complaint, and by Decision and Order,
dated May 2, 2023, this court granted defendants’ motion (NYSCEF # 61). Plaintiff
now moves for reargument pursuant to CPLR 2221 or, in the alternative, for leave
to file a First Amended Complaint pursuant to CPLR 3025 (NYSCEF # 63). For the
following reasons, plaintiffs motion for reargument is granted, and upon
reargument, defendants’ motion to dismiss is denied.”

“Despite this conclusion, the court held that Prospect failed to adequately
allege causation and damages (id. at 5·7). To start, the court considered Prospect’s
theory that if defendants had detected the narrowed turnover provision and
informed Prospect of the change, Prospect would have pushed back in negotiations
to ensure that the subordination agreement included the correct turnover right,
which it then could have properly enforced in the SVB Litigation (id. at 6). On this
point, the court determined that, even assuming SVB agreed to Prospect’s
negotiation request, Prospect had not sufficiently alleged that, with the turnover
remedy, it would have necessarily collected $12 million from SVB (id.). The court
reasoned that, in light of the SVB Litigation’s settlement, Prospect failed to explain
how the turnover remedy would have yielded it a more favorable economic result
when the subordination provision seemingly provided a basis for full recovery (id.
citing NYSCEF # 36 at 3). The court further reasoned that settlement severed the
causal chain because Prospect failed to allege that it would not have opted to settle

the SVB Litigation if it had the turnover remedy, or it would have otherwise
achieved a better result in its settlement (id. at 6·7).
The court next turned to Prospect’s alternative theory that, had it been aware
it lacked a turnover remedy, it would have proceeded with other proposed options
with respect to Venio instead of consenting to the sale of Venio’ s assets (id. at 7). On
this issue, the court determined that Prospect’s allegations were premised on
nothing more than mere speculation of unspecified future events (id.).
Based on this analysis, the court granted defendants’ motion to dismiss,
dismissed complaint in its entirety, and directed that costs and disbursements be
taxed by the Clerk of the Court. Prospect now seeks to reargue the Prior Order,
averring that the court overlooked three points. First, Prospect contends that the
court misapprehended the nature of the turnover provision as alleged in the
complaint by (1) assuming, without factual basis, that Prospect could have
recovered full damages from a breach of section 1 of the Subordination Agreement
alone and (2) overlooking that defendants’ negligence resulted in Prospect losing a
cause of action under the subordination agreement that had a separate and distinct
remedy for damages (NYSCEF # 67 -MOL at 5·6). Second, Prospect argues that the
court misapprehended or overlooked the law on settlements by concluding that
Prospect’s settlement with SVB broke the causal chain of damages arising from
defendants’ malpractice (id. at 8·11). Finally, Prospect avers that the court
misapprehended the nature of Prospect’s damages claims related to payment of
legal fees and costs (id. at 11·12).”

“Here, as noted above, the parties’ dispute centers around the issue of
causation. To plead a claim for legal malpractice, a party must sufficiently allege
proximate cause and actual damages (Reibman v Senie, 302 AD2d 290, 290-291 [1st
Dept 2003]). If an attorney’s actions resulted directly in the loss of a cause of action,
the “measure of damages is generally the value of the claim lost” (McKenna v
Forsyth & Forsyth, 280 AD2d 79, 80 [4th Dept 2001], Iv denied96 NY2d 720
[2001]). And when the alleged injury is the value of the claim lost, plaintiff “must
meet the ‘case within a case’ requirement, demonstrating that ‘but for’ the
attorney’s conduct the client would have prevailed in the underlying matter or
would not have sustained any ascertainable damages” ( Weil, Gotshal & Manges,
LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271 ·272 [1st Dept 2004]).
In order to survive a pre-answer motion to dismiss, a pleading “need only state
allegations from which damages attributable to the defendant’s conduct may
reasonably be inferred” (Lappin v Greenberg, 34 AD3d 277, 279 [1st Dept 2006]).

Applying the above principles, the court agrees with Prospect that it
misapprehended the complaint’s allegations concerning Prospect’s turnover remedy
when determining that the complaint failed to plead causation. Thus, reargument
on the issue of causation is warranted.2

When the court addressed the issue of causation under Prospect’s first theory
in the Prior Order, it had determined that Prospect failed to explain how the
addition of the turnover remedy would have yielded it a more favorable outcome
(Prior Order at 6). The court further held that Prospect failed to allege how
defendants’ negligence either caused it to settle rather than obtain a more favorable
result in litigation or prevented it from obtaining a more favorable settlement (id. at
6-7). The basis for the court’s decision was that Prospect’s loss of a turnover remedy
did not implicate its ability to pursue contractual damages under the Subordination
Agreement during the SVB Litigation or otherwise impact the settlement it
eventually obtained (see id.). A careful review of Prospect’s claim, however, reveals
that, as alleged, the true causal link between defendants’ negligence and Prospectharm flows from the loss of a cause of action and not the end result of the SVB
litigation (including its eventual settlement).”

In what appears ended up as a pro-se breach of fiduciary duty law suit, in Pacelli v Peter L. Cedeno & Assoc., PC 2023 NY Slip Op 05448 Decided on October 26, 2023
Appellate Division, First Department Plaintiff loses the claim for failure to connect pecuniary loss with the allegations of a breach.

“Defendants were entitled to summary judgment dismissing the breach of fiduciary duty claim. Plaintiffs do not challenge the court’s determination that damages recoverable on the claim, which was based on defendants’ alleged legal malpractice in connection with their representation of plaintiff Atesa Pacelli in a matrimonial action, was limited to pecuniary damages (see Dombrowski v Bulson, 19 NY3d 347, 352 [2012]). Thus, defendants demonstrated their entitlement to summary judgment by submitting Atesa’s responses to interrogatories establishing that she sustained only emotional and psychological injuries as a result of the alleged breach of fiduciary duty.

In opposition, plaintiffs failed to raise a triable issue of fact, as plaintiffs proffered no evidence showing that Atesa sustained pecuniary damages, and adduced proof identifying only emotional and psychological injuries. Contrary to plaintiffs’ contention, the allegations in the complaint that Atesa incurred financial expenses as a result of having to seek medical treatment and retain new counsel due to defendants’ alleged misconduct are insufficient to defeat summary judgment, absent any supporting evidentiary proof (see CPLR 3212[b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; S.J. Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 343 [1974]). Plaintiffs’ contention that they could present such proof at trial is unavailing (see Di Sabato v Soffes, 9 AD2d 297, 301 [1st Dept 1959], app dismissed 11 AD2d 660 [1st Dept 1960]). Because plaintiffs failed to raise a triable issue of fact as to whether recoverable damages were incurred, summary judgment dismissing the claim should have been granted (see Sheth v New York Life Ins. Co., 308 AD2d 387, 387-388 [1st Dept 2003], lv denied 1 NY3d 505 [2003]).”