As yet another real estate legal malpractice case, the decision in 538 Morgan Realty LLC v Law Off. of Aihong You, PC 2025 NY Slip Op 06639 Decided on December 02, 2025
Appellate Division, First Department distinguishes between two different (and subsequent) firms.

“Plaintiffs alleged facts permitting a reasonable inference that the liquidated damages clause would have been found unenforceable had the You defendants timely challenged it in the underlying action (see generally Bates Adv. USA, Inc. v. 498 Seventh, LLC, 7 NY3d 115, 120 [2006]; Truck Rent-A-Ctr. v Puritan Farms 2nd, 41 NY2d 420, 423-25 [1977]). Plaintiffs adequately pleaded that contract damages could have been readily ascertained by deducting the contract price from the fair market value of the property at the time of the breach (see generally White v Farrell, 20 NY3d 487, 489 [2013]), obviating the need to resort to liquidated damages, and/or that the liquidated damages amount was grossly disproportionate to any potential actual damages. Moreover, the testimony of the contracting parties’ representatives that the liquidated damages clause constituted a “punishment” or “penalty” supports plaintiffs’ claims that the clause was unenforceable, as well as plaintiffs’ allegations that the You defendants advised them that the liquidated damages clause was unenforceable.

The contract’s statements that “Purchaser’s damages in case of Seller’s default might be impossible to ascertain” and that the liquidated damages amount was “a fair and reasonable amount of damages under the circumstances” are not dispositive (see Truck Rent-A-Ctr., 41 NY2d at 425).

Plaintiffs also alleged facts permitting a reasonable inference that had the liquidated damages clause been deemed unenforceable, the damages awarded at trial (which were largely based on the liquidated damages amount) would have been significantly reduced, and given plaintiffs greater leverage in settlement negotiations (cf. Bernstein v Oppenheim & Co., 160 AD2d 428, 430 [1st Dept 1990] [claim for malpractice stated where counsel’s mistakes compelled settlement]).

Plaintiffs did not, however, adequately plead a legal malpractice claim against defendants Joseph & Smargiassi, LLC, John Smargiassi, and Mario Alexis Joseph (the JS defendants) with respect to the alleged negligent failure to challenge the liquidated damages clause. The JS defendants were not retained until four years after the motion to dismiss was decided, an amended complaint filed and answered, and approximately seven months after the note of issue was filed. Plaintiffs argue that defendants should have filed a summary judgment motion seeking dismissal of the claim for liquidated damages; however, by the time the JS defendants were retained, the time to file such a motion had already expired (see CPLR 3212[a]). Although a court may grant leave to file a late summary judgment motion “on good cause shown” (CPLR 3212[a]), the You defendants had already moved to vacate the note of issue and to file a late summary judgment motion, and those motions were denied.

Further, the legal malpractice claim was properly dismissed as against all defendants to the extent that it was premised on their alleged failure to take measures beyond the motion to dismiss to shield the individual plaintiffs from personal liability in the underlying action on the conversion claim. Plaintiffs failed to allege facts permitting a reasonable inference that any motion to establish that they lacked “complete domination and control” over their entity would have been successful (see Matter of Morris v New York State Dept. of Taxation & Fin., 82 NY2d 135, 141-142 [1993]; Tap Holdings, LLC v Orix Fin. Corp., 109 AD3d 167, 174 [1st Dept 2013]). Further, that defendants may have promised to file such a motion is not sufficient. The court in the underlying action found that the allegations in the complaint supported a piercing the corporate veil theory, and the testimony at trial showed that the individual plaintiffs personally received the contract prepayment amount. The trial court’s comments at the posttrial hearing do not give any indication as to how it would have ruled had the issue of personal liability actually been before it.”

Coyle v Catterson 2025 NY Slip Op 34372(U) November 17, 2025 Supreme Court, New York County Docket Number: Index No. 157161/2025 Judge: James d’Auguste is a kind of celebrity legal malpractice case, in as much as the defendant is a former Court of Appeals Judge who transitioned to a big law position. The underlying case involves the celebrity Maidstone Gun Club in East Hampton, long a center for celebrity shooters.

“For the reasons outlined below, petitioners Kevin Coyle and Tracy Carey’s request for pre-action discovery is denied, and respondents Pillsbury Winthrop Shaw Pittman LLP and James Catterson’s (“Pillsbury”) motion to dismiss this proceeding is granted.1 Pillsbury’s motion for a change of the venue of this proceeding from New York County to Suffolk County is denied as moot. Petitioners commenced this litigation, in their individual capacities, seeking litigationrelated documents concerning respondents’ former representation of petitioners as trustees of the Kevin B. Coyle Revocable Trust and Tracy E. Carey Revocable Trust (the “Trusts”) in Pintillie v. Maidstone Gun Club and Town o_f East Hampton, Suffolk County Index Number 206837/2022 (“Maidstone Gun Club Action”). NYSCEF Doc. No. 1.2 The Maidstone Gun Club Action

1 The Court expresses its appreciation to court attorney Brian Krist, Esq. for his assistance in this matter.

2 In the Maidstone Gun Club Action, neither Kevin B. Coyle nor Tracy E. Carey is a plaintiff in their individual capacity. As stated in that action’s complaint: “Plaintiffs Kevin B. Coyle serves as trustee of the Kevin B. Coyle Revocable Trust and Tracy E. Carey as Trustee of the Tracy E. Carey Revocable Trust (hereinafter collectively referred to as the ‘Revocable Trusts’).” Maidstone Gun Club Action, NYSCEF Doc. No. 2 at~ 7.”

“involves allegations that bullets from firearm activity at a gun range are striking nearby homes. Pillsbury was remarkably successful in prosecuting the Maidstone Gun Club Action on behalf of the plaintiffs in the underlying action. Nonetheless, Pillsbury eventually withdrew as counsel to the Trusts but continued to represent other plaintiffs in the Maidstone Gun Club Action. Thereafter, the Trusts terminated being represented by Greenberg Traurig (“Greenberg”), their co-counsel in this underlying litigation. Maidstone Gun Club Action, NYSCEF Doc. No. 348. At that juncture, Greenberg provided the Trusts with almost the entirety of the firm’s litigation file. Unsurprisingly, given this co-counsel status, Greenberg’s litigation file is apparently identical to Pillsbury’s litigation file. The only document not produced to the Trusts was an “attorneys’ eyes only” confidential term sheet. Although all plaintiffs were provided with information regarding the proposed resolution, the Trusts have doggedly sought to compel the production of the actual underlying document. The Court (Modelewski, J.) denied the Trusts’ application. As the Trusts, in submissions, have asserted judicial bias directed toward Justice Modelewski, the undersigned took additional time in reviewing transcripts and filings surrounding this issue. There does not appear to be any legitimate basis for petitioners’ accusation of bias, and the transcript references cited in support of this contention are woefully inadequate to support such an inference. For instance, during a court conferenc.e conducted on March 26, 2025, Justice Modelewski ,stated to the Trusts’ new counsel, Jonathan Wallace:

Mr. Wallace, I did read your letter. So I understand that you have a number of concerns. If, in fact, the matter is settled, that doesn’t foreclose your clients from continuing the litigation.

However, I would offer you this caution. You had mentioned in the body of your letter that you were contemplating an Order to Show Cause with a request for a temporary restraining order as respects the Town and the anticipated execution by the supervisor of a lease agreement.

You should know that it has been the law in this state for many, many years~- and will harken back to a. case that I like to cite simply because I kind of like Judge Sol Wachtler when he was trial term in Nassau County in 1970, he presided over a matter. I don’t have the case citation, but it was captioned Goldin, with an I, versus Hempstead.

In the body of that decision, the Judge, who you all know went on to become the Chief Judge of the Court of Appeals in this state, he articulated accurately that you cannot enjoin a municipal official from the commission of an official act.

I’m just cautioning you that you ought not make that application in this part. Whatever it is that is additional to that that you believe is lawful and ethical and necessary in order to prosecute whatever rights you wish to prosecute on behalf of your clients, you can and should do. But I’m telling you right now, don’t do that. Maidstone Gun Club Action, NYSCEF Doc. No. 371 at Tr. 5:17-7:2.”

“As noted above, the Trusts made an application seeking the production of this document, which is likely inadmissible pursuant to CPLR 454 7 and therefore itself is of little substantive relevance, that was presented to Justice Modelewski. He declined to order its production. Any challenge to this determination should have been made to the Second Department, not by the instant (seemingly judge-shopping) application to a judge of coordinate jurisdiction sitting in another county and department. Accordingly, the petition seeking pre-action discovery is denied, and the motion seeking the petition’s dismissal is granted. This constitutes the decision and order of the Court.”

Matrimonial cases are unlike almost every other kind of case except a criminal plea. Get involved in a car accident and you will likely settle through your attorney with a release and a stipulation of discontinuance. Resolution of a breach of contract will follow the same paradigm, as will a battle over patents. However, settle a matrimonial action and you will be “allocuted” by the judge, and one of the questions will be whether you are satisfied with your attorney’s work. The answer to this question has manyfold consequences, as we see in Valentina v Beckerman 2025 NY Slip Op 04682 [241 AD3d 751] August 13, 2025 Appellate Division, Second Department.

“In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from a judgment of the Supreme Court, Queens County (Donna-Marie E. Golia, J.), entered January 6, 2021. The judgment, upon an order of the same court entered December 21, 2020, granting the defendants’ motion pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint, and upon an order of the same court also entered December 21, 2020, denying, as academic, the plaintiff’s motion for leave to amend the complaint, is in favor of the defendants and against the plaintiff dismissing the complaint. The notice of appeal from the orders is deemed to be a notice of appeal from the judgment (see id. § 5512 [a]), and the appeal from the judgment will be prosecuted under Appellate Division Docket No. 2021-00617 and not under Appellate Division Docket No. 2021-00618.

Ordered that the judgment is affirmed, with costs.”

“Here, in support of their motion, the defendants submitted, inter alia, a transcript of the court proceeding in the underlying action containing the plaintiff’s allocution conducted by the court regarding the settlement agreement, which conclusively established that the plaintiff was not effectively compelled to settle the underlying action (see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 757-758 [2014]). The plaintiff’s allegations that she was coerced into settling the underlying action were utterly refuted by her admissions during that proceeding that she authorized the defendants to prepare the settlement agreement, was satisfied with the defendants’ representation, was not forced to enter into the settlement agreement, and was not under the influence of stress or duress (see Glenwayne Dev. Corp v James J. Corbett, P.C., 175 AD3d at 474). Although the plaintiff alleged, among other things, that the defendants failed to obtain temporary maintenance during the pendency of the underlying action, improperly advised her that the court was required to impute income to her, and advised her of the possible pitfalls of proceeding to trial rather than settling, those actions did not proximately cause any injuries to the plaintiff since the underlying action was settled and, in light of the plaintiff’s admissions in the underlying action, the “settlement of the [underlying] action was [not] effectively compelled by the mistakes of counsel” (id. [internal quotation marks omitted]). The fact that the plaintiff subsequently was unhappy with the settlement she obtained does not rise to the level of legal malpractice (see Floral Park Ophthalmology, P.C. v Ruskin Moscou Faltischek, LLP, 216 AD3d 1136, 1137 [2023]; Williams v Silverstone, 215 AD3d 787, 789 [2023]). Accordingly, the legal malpractice cause of action was properly dismissed.

The causes of action alleging fraud, breach of contract, breach of fiduciary duty, and intentional and negligent infliction of emotional distress were properly dismissed as duplicative of the legal malpractice cause of action insofar as they arose from the same facts and did not allege distinct damages (see Incorporated Vil. of Freeport v Albrecht, Viggiano, Zurich & Co., P.C., 226 AD3d 658, 660 [2024]; Kahlon v DeSantis, 182 AD3d 588, 590 [2020]). The remaining cause of action alleging sex discrimination was properly dismissed because such a cause of action arises only where an employer discriminates against an employee (see Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d 326, 330 [2003]; Silvers v Jamaica Hosp., 218 AD3d 817, 819 [2023]) and, in any event, the plaintiff’s allegations with respect to that cause of action were conclusory and speculative (see 126 Main St., LLC v Kriegsman, 218 AD3d 524, 525 [2023]; Tong v Target, Inc., 83 AD3d [*2]1046, 1047 [2011]).”

Stinnett v Derek Smith Law Group, PLLC 2025 NY Slip Op 04677 [241 AD3d 737]
August 13, 2025 Appellate Division, Second Department is a decision which obscurely indicates what might be the underlying case, where the underlying case was against Delta Airlines and Quest Diagnostics, and the outcome was that plaintiff was fired. How might Quest and Delta be mentioned in the same breath?

“The plaintiff commenced this action, inter alia, to recover damages for legal malpractice against, among others, the defendants Derek Smith Law Group, PLLC (hereinafter DSLG), and John C. Luke, Jr., who was an attorney at DSLG (hereinafter together the defendants). The plaintiff alleged, among other things, that she retained the defendants to represent her in actions against Delta Air Lines, Inc. (hereinafter Delta), and Quest Diagnostics Clinical Laboratories, Inc. (hereinafter Quest), that were either commenced in federal court or removed from state court to federal court, asserting causes of action alleging, inter alia, employment discrimination, based on gender, sex, and disability, and common-law negligence. The plaintiff also alleged that due to the defendants’ negligent representation, the complaints in the underlying federal actions were dismissed. The defendants moved pursuant to CPLR 3211 (a) (5) and (7) to dismiss the complaint insofar as asserted against them. In an order dated August 16, 2023, the Supreme Court granted the motion. The plaintiff appeals.”

“Here, the cause of action to recover damages for legal malpractice failed to set forth facts sufficient to allege that the defendants’ alleged negligence proximately caused the plaintiff to sustain actual and ascertainable damages (see Buchanan v Law Offs. of Sheldon E. Green, P.C., 215 AD3d 793, 795 [2023]; Joseph v Fensterman, 204 AD3d 766, 769-771 [2022]). The plaintiff’s allegations that but for the defendants’ alleged negligent representation her claims would have been viable and she would have received a more favorable outcome in the underlying federal actions were conclusory and speculative (see Alexim Holdings, LLC v McAuliffe, 221 AD3d 641, 644 [2023]; Mid City Elec. Corp. v Peckar & Abramson, 214 AD3d 646, 649 [2023]). Accordingly, the Supreme Court properly determined that dismissal of the cause of action alleging legal malpractice insofar as asserted against the defendants was warranted pursuant to CPLR 3211 (a) (7).

As a general rule, where a cause of action alleging breach of contract arises from the same facts as a cause of action to recover damages for legal malpractice and does not allege distinct damages, the cause of action alleging breach of contract must be dismissed as duplicative of the cause of action to recover damages for legal malpractice (see Postiglione v Castro, 119 AD3d 920, 922 [2014]; Town of N. Hempstead v Winston & Strawn, LLP, 28 AD3d 746, 749 [2006]). Here, the cause of action alleging breach of contract was duplicative of the cause of action to recover damages for legal malpractice (see Dabiri v Porter, 227 AD3d 860, 861 [2024]; Lam v Weiss, 219 AD3d 713, 718 [2023]). The allegations supporting the cause of action alleging breach of contract were essentially identical to those supporting the cause of action to recover damages for legal malpractice and did not allege a distinct injury or distinct damages. Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss the cause of action alleging breach of contract insofar as asserted against them.”

Hsiung v Zhang Jiang Lin 2025 NY Slip Op 34306(U) November 7, 2025 Supreme Court, New York County Docket Number: Index No. 650855/2025 Judge: Mary V. Rosado is a situation where an interpleaded plaintiff attorney is holding escrowed funds and was potentially subject to a legal malpractice claim. The attorney proposed to deposit the escrowed funds into the Court, and sought immunity from any liability. The Court agreed, but put off the question of attorney fees due for her defense until later.

“Upon the foregoing documents, and after a final submission date of September 10, 2025, Interpleader Plaintiff Ann Hsiung, Esq.’ s (“Plaintiff’) motion to deposit the sum of $90,000 with the Clerk of the Court, discharging Plaintiff from any and all liability with respect to said funds to any and all Interpleader Defendants, dismissing with prejudice Plaintiff from this action following deposit of the $90,000 with the Registry of this Court, and awarding Plaintiff reasonable attorneys’ fees, costs and disbursements incurred in this action to be paid from the $90,000 is granted in part and denied in part.”

“The Court has considered Wu’s argument in opposition to releasing Plaintiff from liability m this action and finds it unavailing. To the extent Wu alleges Plaintiff committed legal malpractice, the statute of limitations on that cause of action has long since expired. Interpleader Plaintiff is incorrect that her dismissal requires immediate disbursement of her attorneys’ fees. CPLR 1006(f) provides that once the interpleader plaintiff is dismissed from the case “[t]he court shall impose such terms relating to payment of expenses, costs and disbursements as may be just and which may be charged against the subject matter of the action.” Thus, CPLR 1006(f) provides the Court with discretion to fashion the terms of the payment of the interpleader plaintiff’s expenses, costs, and disbursements (see also Fischbein, Badillo, Wagner v Tova Realty, Co., 193 AD2d 442, 445 [ 1993] [ finding expenses may be assessed against interpleader defendants in Court’s discretion]). The Court finds Plaintiff’s request to recoup $19,369.35 in attorneys’ fees, costs, and disbursements purportedly incurred since the filing of this action from the $90,000 to be deposited into the Court to be excessive and unjust. First, the sum requested constitutes a significant portion ( over 20%) of the funds to be deposited. These funds may ultimately be used to satisfy multiple judgments already obtained by certain interpleader defendants against Wu, and the Court finds it would be unjust to deprive those judgment creditors of access to those funds because of Plaintiff’s claimed legal bills. Second, depending on the outcome of parallel litigation (see People of the State of New York v. Wu, et al., Index No. 452904/2022) the Court may find it more appropriate to assess attorneys’ fees and costs against one or several of the Interpleader Defendants as opposed to assessing Plaintiff’s costs against the $90,000 to be deposited into the Court. To be clear, the Court is not denying Plaintiff’s right to costs, fees, and disbursements in this action – but it is reserving judgment on the amount of costs, fees, and disbursements to be awarded until the conclusion of this action and/or People of the State of New York v. Wu, et al., Index No. 452904/2022, because depending on certain findings and determinations in this case or the ongoing action between the Attorney General and Wu, the Court may find it more appropriate to award Plaintiff her costs, fees, and expenses against certain Interpleader Defendants as opposed to assessing it against the $90,000 in funds which may be used to satisfy judgments already held by various Interpleader Defendants against Wu. Therefore, Plaintiff’s motion is granted except with respect to her request for costs, fees and expenses to be drawn from the $90,000 in funds which are the subject of this action. That branch of the motion is denied, without prejudice, with leave to renew upon the conclusion of this action and/or People of the State of New York v. Wu, et al., Index No. 452904/2022.”

NYC is strongly real estate centric, and there is a wide swath of legal malpractice law based upon real estate transactions. Tesniere v Cinotti LLP 2025 NY Slip Op 34269(U) November 10, 2025 Supreme Court, New York County Docket Number: Index No. 160760/2024 Judge: Mary V. Rosado is a recent addition.

“On April 28, 2022, Plaintiff retained Defendants to negotiate and to perform due diligence on the purchase of Unit 2B (the “Apartment”) in the condominium at 42 Tiffany Place, Brooklyn, New York. Defendants were allegedly advised of a fa9ade project presentation and were provided various board meeting minutes. On May 3, 2022, Defendants allegedly advised Plaintiff of an additional assessment of $35,000 related to the fa9ade project. Plaintiff alleges based on this information he entered a contract of sale for the Apartment for $1,615,000. However, on October 1, 2022, Plaintiff was informed that the estimated cost to complete the fa9ade project was $894,000 and he would be obliged to contribute $81,622.20 towards that assessment. Plaintiff alleges board meeting minutes which Defendants allegedly had in their possession reflect that the second phase of the facade project would cost $835,000, far greater than the assessment amount Defendants advised Plaintiff of. The assessment for the second phase of the facade project allegedly increased to $1,044,705. Plaintiff now sues Defendants for legal malpractice based on their alleged failure to conduct proper due diligence. Defendants move, preanswer, to dismiss the Complaint pursuant to CPLR 321 l(a)(l) and (a)(7). Accepting the facts as true and giving Plaintiff the benefit of all favorable inferences which may be drawn from the Complaint, the Court is constrained to deny Defendants’ motion. “In order to survive a motion to dismiss, a plaintiff’s complaint in an action for legal malpractice must show that ‘but for counsel’s alleged malpractice, the plaintiff would not have sustained some actual ascertainable damages”‘ (Gopstein v Beilinson Law, LLC, 227 AD3d 465, 466 [1st Dept 2024] quoting Pellegrino v File, 291 AD2d 60, 63 [1st Dept 2002], lv denied 98 NY2d 606 [2002]). For purposes of a pre-answer motion to dismiss, Plaintiff has adequately alleged a legal malpractice claim, and Defendants have failed to come forth with documentary evidence definitively contradicting Plaintiff’s allegations.”

“Although Defendants rely on factual arguments made by Youbi in an affirmation (NYSCEF Doc. 12), this does not qualify as documentary evidence and simply highlights issues of fact which cannot be resolved on a motion to dismiss (Bou v Llamoza, 173 AD3d 575, 575 [1st Dept 2019]). While Defendants claim they did not have the April 13, 2022 board minutes in their possession at the time of advising Plaintiff on the results of their due diligence, this is an issue which must be flushed out in discovery. Moreover, the e-mail correspondence submitted by Defendants shows that Defendants attempted to access the board minutes on May 2, 2022, but there is no evidence of what board minutes were available for review between the May 2, 2022, e-mail to the condominium and the May 3, 2022 e-mail from Defendants to Plaintiff (see NYSCEF Docs. 15-16). There is also a question of fact as to whether it was reasonable for Defendants to rely on the condominium’s answer to the questionnaire given evidence that Defendants should have been in possession of a facade project presentation that indicated facade restoration would take place in several phases over the span of years (see NYSCEF Docs. 17-18). The questionnaire also put Defendants on notice that there was an impending assessment which would be voted on at a May 8, 2022 board meeting, but there is no evidence that was communicated to Plaintiff nor is there any evidence that due diligence into the pending assessment was conducted. Finally, since Defendants knew the facade repair had only completed phase one, it remains an issue of fact as to whether Defendants should have inquired into assessments and costs of the other phases of the facade repair, and the additional costs that Plaintiff would incur if he purchased the Apartment. Although Defendants claim Plaintiff suffered no actual damages, it cannot be determined on a motion to dismiss whether Plaintiff would have entered a contract to purchase the Apartment had he known about the other assessments, or if he would have succeeded in negotiating more favorable terms prior to entering a purchase agreement using the future assessment costs as leverage. The arguments Defendants are making are more suited for a motion for summary judgment, supported by expert opinions and after written and oral discovery is complete, as opposed to a motion to dismiss based on the pleadings. Therefore, Defendants’ motion is denied (see also Kram Knarf, LLC v Djonovic, 74 AD3d 628, 628 [1st Dept 2010]).”

In Campbell v Law Off. of Solomon Rosengarten 2025 NY Slip Op 04700 [241 AD3d 771]
August 20, 2025 Appellate Division, Second Department it starts to run when plaintiff is no longer able to prosecute a dismissed case.

“In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Richard J. Montelione, J.), dated May 25, 2023. The order, insofar as appealed from, granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) to dismiss the cause of action alleging legal malpractice as time-barred.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) to dismiss the cause of action alleging legal malpractice as time-barred is denied.

The defendants, Solomon Rosengarten and his law firm, represented the plaintiff, Patrick A. Campbell, in a personal injury action that was commenced in December 1994 in the Supreme Court, Kings County (hereinafter the personal injury action). In September 1995, the personal injury action was transferred to the Civil Court, Kings County, but there were no further proceedings in that court on the action until after 2017. In December 1995, Rosengarten appeared at two depositions on behalf of Campbell in the personal injury action.

In 2016, Campbell executed a consent to change attorneys form and filed it in the Supreme Court, Kings County. Campbell then moved in the Supreme Court to restore the action to the active calendar, for summary judgment on the issue of liability, and for leave to file a note of issue. In an order dated November 22, 2017, the motion was denied without prejudice to refile in the Civil Court, Kings County. Campbell then moved in the Civil Court to restore the action to the active calendar and for summary judgment on the issue of liability. In an order dated December 10, 2019, the Civil Court denied the motion (hereinafter the Civil Court order).

In January 2020, Campbell commenced this action, inter alia, to recover damages for legal malpractice. The defendants moved, among other things, pursuant to CPLR 3211 (a) to dismiss the cause of action alleging legal malpractice as time-barred. In an order dated May 25, 2023, the Supreme Court, inter alia, granted that branch of the motion. Campbell appeals.”

“To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages” (Katsoris v Bodnar & Milone, [*2]LLP, 186 AD3d 1504, 1505 [2020] [internal quotation marks omitted]). A cause of action to recover damages for legal malpractice must be commenced within three years from the time of accrual (see CPLR 203 [a]; 214 [6]). “A cause of action to recover damages for legal malpractice accrues when the malpractice is committed, not when it is discovered” (Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 735 [2015]; see McCoy v Feinman, 99 NY2d 295, 301 [2002]). “ ’A legal malpractice claim accrues when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court’ ” (Lee v Leeds, Morelli & Brown, P.C., 233 AD3d 1072, 1077 [2024], quoting McCoy v Feinman, 99 NY2d at 301; see Farage v Ehrenberg, 124 AD3d 159, 163 [2014]).

Here, the cause of action alleging legal malpractice was premised on the defendants’ neglect of the personal injury action. As pre-note of issue delay of a pending action is not necessarily injurious (see generally Lopez v Imperial Delivery Serv., 282 AD2d 190, 191 [2001]), the actionable injury in this case did not occur until the issuance of the Civil Court order, which prevented the plaintiff from further prosecuting the personal injury action (see Golden Jubilee Realty, LLC v Castro, 196 AD3d 680, 683 [2021]; Frederick v Meighan, 75 AD3d 528, 532 [2010]; see also Flintlock Constr. Servs., LLC v Rubin, Fiorella & Friedman, LLP, 188 AD3d 530, 531 [2020]). Therefore, the cause of action alleging legal malpractice was timely, since it was asserted within three years of the issuance of the Civil Court order.

Accordingly, the Supreme Court should have denied that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) to dismiss the cause of action alleging legal malpractice as time-barred. Brathwaite Nelson, J.P., Miller, Wooten and Warhit, JJ., concur.”

An analogous question reviewed in Coniglio v Dansker & Aspromonte Assoc. 2025 NY Slip Op 06154 Decided on November 12, 2025 Appellate Division, Second Department is when does the new representation start?

“In 2015, the plaintiff commenced an action to recover damages for podiatric malpractice (hereinafter the underlying action). The underlying action was commenced on the plaintiff’s behalf by the defendants Dansker & Aspromonte Associates, Salvatore Aspromonte, Paul D. Dansker, Douglas Hoffer, and Raymond Maceira (hereinafter collectively the Dansker defendants). In an order dated September 23, 2016, the plaintiff was directed to file a note of issue no later than January 31, 2017. The plaintiff failed to file the note of issue by the January 31, 2017 deadline, and the underlying action was marked disposed. The plaintiff’s motion to restore the underlying action to the active calendar was granted in an order dated April 24, 2017, and the plaintiff was directed to file a note of issue by September 20, 2017. The plaintiff failed to file a note of issue by that deadline and the underlying action was marked disposed as of October 6, 2017.

On June 20, 2018, a consent to change attorney was executed by the plaintiff, the Dansker defendants, and the defendants William Schwitzer & Associates, P.C., and William Schwitzer (hereinafter together the Schwitzer defendants), whereby the Schwitzer defendants were substituted as attorneys of record for the plaintiff in place of the Dansker defendants. In October 2019, the plaintiff moved, inter alia, to have the underlying action restored to the active calendar. This motion was denied, with leave to renew, based on the plaintiff’s failure to include an affidavit of merit. In June 2020, the plaintiff again moved to restore the underlying action to the active calendar. In an order dated October 27, 2021, the Supreme Court denied the plaintiff’s motion and directed dismissal of the underlying action with prejudice. A judgment was subsequently entered on November 17, 2021. On December 9, 2021, the Schwitzer defendants filed a notice of appeal from the order dated October 27, 2021, on the plaintiff’s behalf. Thereafter, the Schwitzer defendants moved, among other things, for leave to withdraw as counsel for the plaintiff in the underlying action.”

“In November 2022, the plaintiff commenced the instant action to recover damages for legal malpractice, fraud, breach of fiduciary duty, and violations of Judiciary Law § 487 against the Dansker defendants, the Schwitzer defendants, and the defendants Demidchik Law Firm, PLLC, and Anna Demidchik (hereinafter together the Demidchik defendants), which the plaintiff alleged had represented him “at a point in time which remains unknown.” The Demidchik defendants moved pursuant to CPLR 2004 to extend their time to appear and answer the complaint and the Demidchik defendants, the Schwitzer defendants, and the Dansker defendants separately moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them. In an order dated October 4, 2023, the Supreme Court granted the separate motions. The plaintiff appeals.”

“Here, the Supreme Court properly directed dismissal of the plaintiff’s legal malpractice cause of action insofar as asserted against the Demidchik defendants (see AG Capital [*2]Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 595; Mid City Elec. Corp. v Peckar & Abramson, 214 AD3d at 648; Siemsen v Mevorach, 160 AD3d at 1005). The plaintiff’s unilateral belief that he was represented by the Demidchik defendants despite his admission that it was impossible to determine whether they had ever represented him was insufficient to establish an attorney-client relationship (see Volpe v Canfield, 237 AD2d at 283; cf. Shan Yun Lin v Lau, 210 AD3d 817, 818; Willoughby Rehabilitation & Health Care Ctr., LLC v Webster, 190 AD3d 887, 889). Further, with respect to the Demidchik defendants, the allegations of the complaint failed to allege actual, ascertainable damages that resulted from the Demidchik defendants’ alleged negligence (see Guliyev v Banilov & Assoc., P.C., 221 AD3d at 590-591; Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d 714, 716).

The Supreme Court also properly directed dismissal of the plaintiff’s legal malpractice cause of action insofar as asserted against the Schwitzer defendants. Viewing the complaint in the light most favorable to the plaintiff (see Leon v Martinez, 84 NY2d at 87-88), it fails to plead specific factual allegations demonstrating that but for the Schwitzer defendants’ alleged negligence, the plaintiff would have prevailed in the underlying action (see Mid City Elec. Corp. v Peckar & Abramson, 214 AD3d at 649; Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1505).

The Supreme Court properly directed dismissal of the plaintiff’s legal malpractice cause of action insofar as asserted against the Dansker defendants pursuant to CPLR 3211(a)(5) (see id. § 214[6]; Farage v Ehrenberg, 124 AD3d 159, 165). The Dansker defendants established that the statute of limitations expired on June 20, 2021, three years after the consent to change attorney was executed, and that they did not act on behalf of the plaintiff in the underlying action after the consent was signed (see CPLR 321[b]; Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d 1085, 1086). The plaintiff failed to raise a question of fact in opposition “as to whether the statute of limitations has been tolled, an exception to the limitations period is applicable, or the plaintiff actually commenced the action within the applicable limitations period” (Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d at 1086 [internal quotation marks omitted]).”

We read the AD decisions in order to educate ourselves, gain insight into how to phrase claims, how to defend claims and how to navigate the unique legal malpractice landscape. Saracino v Rosenberg, Calica & Birney, LLP 2025 NY Slip Op 06205
Decided on November 12, 2025 Appellate Division, Second Department is the reversal of a denial of summary judgment to the attorneys, but why?

“In an action, inter alia, to recover damages for legal malpractice, the defendant appeals from (1) an order of the Supreme Court, Nassau County (R. Bruce Cozzens, J.), entered June 29, 2023, and (2) an order of the same court entered February 7, 2024. The order entered June 29, 2023, denied the defendant’s motion for summary judgment dismissing the complaint and granted the plaintiffs’ cross-motion pursuant to CPLR 3025(b) for leave to amend the complaint. The order entered February 7, 2024, insofar as appealed from, upon reargument, adhered to the prior determinations in the order entered June 29, 2023, denying the defendant’s motion for summary judgment dismissing the complaint and granting the plaintiffs’ cross-motion pursuant to CPLR 3025(b) for leave to amend the complaint.

ORDERED that the order entered June 29, 2023, is reversed, on the law, the defendant’s motion for summary judgment dismissing the complaint is granted, the plaintiffs’ cross-motion pursuant to CPLR 3025(b) for leave to amend the complaint is denied, and so much of the order entered February 7, 2024, as, upon reargument, adhered to the prior determinations in the order entered June 29, 2023, denying the defendant’s motion for summary judgment dismissing the complaint and granting the plaintiffs’ cross-motion pursuant to CPLR 3025(b) for leave to amend the complaint is vacated; “

Here is the complete explanation:

“A plaintiff in an action alleging legal malpractice must prove that the defendant’s failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession proximately caused the plaintiff to suffer damages (see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 49; Casey v Exum, 219 AD3d 456, 456-457). “An attorney’s conduct or inaction is the proximate cause of a plaintiff’s damages if ‘but for’ the attorney’s negligence the plaintiff would have succeeded on the merits of the underlying action, or would not have sustained actual and ascertainable damages” (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d at 50 [citation and internal quotation marks omitted]). “A defendant seeking summary judgment dismissing a legal malpractice cause of action has the burden of establishing prima facie that he or she did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages” (Provenzano v Cellino & Barnes, P.C., 207 AD3d 763, 764 [internal quotation marks omitted]).

Here, the defendant met its burden by establishing, prima facie, that it did not fail to exercise the requisite skill and knowledge in its representation of the plaintiffs in the underlying actions. The defendant also established, prima facie, that, in any event, its alleged negligence in, inter alia, filing mechanic’s liens on behalf of the plaintiffs rather than pursuing arbitration did not proximately cause the plaintiffs’ damages.

In opposition, the plaintiffs failed to raise a triable issue of fact (see Sang Seok Na v Schietroma, 163 AD3d 597, 599; Richmond Holdings, LLC v David S. Frankel, P.C., 150 AD3d 1168, 1168-1169). Moreover, the plaintiffs failed to address those branches of the defendant’s motion which were for summary judgment dismissing the causes of action to recover damages for breach of fiduciary duty, fraud, and violation of Judiciary Law § 487 (see Clarke v New York City Health & Hosps., 210 AD3d 631, 633; Elstein v Hammer, 192 AD3d 1075, 1079-1080).

The plaintiffs’ contention that the defendant’s motion for summary judgment was premature is without merit (see Wei Ping Zheng v Sun & Son, Inc., 233 AD3d 733). Thus, the Supreme Court should have granted the defendant’s motion for summary judgment dismissing the complaint.”

Levy v Brancato 2025 NY Slip Op 34103(U) October 24, 2025 Supreme Court, New York County Docket Number: Index No. 159951/2024 Judge: Mary V. Rosado is the story of a representation, a battle over the retainer agreement, a “walk-off”, a fee arbitration and a de novo litigation.

“On January 6, 2023, Plaintiff retained Defendants to represent her in a guardianship proceeding. Plaintiff alleges she retained Defendants to facilitate settlement. Allegedly, on March 8, 2023, days before a settlement was to be so-ordered, Defendants Laura Brancato, Esq. (“Brancato”) and Lisa Fenech, Esq. (“Fenech”) “walked off [Plaintiffs] case”. Plaintiff provides a litany of alleged misconduct claims and claims she tried several times to terminate the retainer through e-mail and text messages to Brancato. Plaintiff disputed Defendants’ legal fees, and the parties participated in a fee dispute arbitration on September 19, 2024. A decision was issued on September 25, 2024, which Plaintiff disagreed with, so she filed this action seeking a trial de novo. She also alleges breach of contract, seeks declaratory judgment declaring the retainer null and void, and damages for alleged negligent supervision, legal malpractice, and violations of “CPLR 487” which this Court construes to be an alleged violation of Judiciary Law§ 487. Defendants responded with several affirmative defenses and counterclaims. According to Defendants, on January 20, 2023, they sent Plaintiff their standard engagement agreement, and in response Plaintiff asked that the hourly rate be lowered, that Defendants serve as co-counsel to her, and to remove other language. On January 24, 2023, Defendants sent a revised agreement. On February 3, 2023, Plaintiff signed and returned the retainer with an “addendum.” The Amended Answer goes on to detail an allegedly difficult attorney/client relationship. As a result, Defendants claim they sent Plaintiff a consent to change attorney on March 7, 2023 changing Plaintiffs status to prose, which Plaintiff signed. Defendants allege Plaintiff owes $44,308.50 in legal fees, $7,500 of which was covered by the original retainer fee. After fee arbitration, Defendants were awarded $39,877.65 in costs and disbursements, not including the $7,500 retainer fee. Defendants counterclaim for breach of contract, unjust enrichment, quantum meruit, and account stated. Plaintiff moves to dismiss the affirmative defenses and counterclaims and seeks to strike Defendants’ Amended Answers and asks for sanctions. Defendants oppose.”

“Plaintiff’s motion to dismiss is granted in part and denied in part. Plaintiff’s argument that the counterclaims should be dismissed because they were not raised in the fee dispute arbitration is without merit. Plaintiffs argument that the issue of attorneys’ fees for enforcing the retainer and litigating a fee dispute was not raised in the underlying fee dispute arbitration is belied by the terms of the retainer, the notice of client’s right to arbitrate a fee dispute, and Defendants’ filings in the arbitration (see NYSCEF Docs. 60, 67 and 87). These documents state that reasonable attorneys’ fees may be awarded in any dispute over the retainer, and that Defendants would be seeking attorneys’ fees in the arbitration. Plaintiff filed this de nova proceeding which nullified the arbitrator’s award and allows Defendants to again seek attorneys’ fees, just as Plaintiff is entitled to again dispute the amount in legal fees owed to Defendants. Plaintiffs argument that Defendants are not entitled to assert counterclaims because they did not file for a de novo review of the arbitration award is similarly without merit. Plaintiff timely filed for de novo review which nullified the fee dispute arbitration award and raised numerous other causes of action including negligent supervision and legal malpractice. Defendants are entitled to raise counterclaims in defense of Plaintiffs Complaint. Plaintiffs request that Defendants’ Amended Answers be stricken because Defendants reference the arbitrator’s award in the underlying fee dispute is denied. While Plaintiff is correct that 22 NYCRR § 137.8(c) states that at a trial de novo, arbitrators shall not be called as witnesses nor should the arbitration award be admitted in evidence, this matter is not at trial and there is no testimony from any arbitrator, nor has the arbitrator’s award been admitted into evidence. Plaintiffs arguments that the counterclaims for breach of contract, unjust enrichment, quantum meruit and account stated should be dismissed as duplicative of Plaintiffs claim for a de novo review is denied. Defendant’s counterclaims are separate and distinct from Plaintiffs claim for a de novo review – conceptually, a counterclaim cannot be duplicative of a claim asserted by a plaintiff because the claims are asserted by two parties adverse to one another. Plaintiffs argument that the retainer is unenforceable is unavailing at this juncture. Plaintiffs argument that the quantum meruit counterclaim should be dismissed due to Defendants’ professional misconduct is not ripe for review on a CPLR 3211 motion to dismiss, for it requires discovery and factual determinations. Moreover, Plaintiff has failed to meet her heavy burden of establishing the affirmative defenses raised should be dismissed as a matter of law (see, e.g. Granite State Ins. Co. v Transatlantic Reinsurance Co., 132 AD3d 479,481 [1st Dept 2015]). However, the motion is granted to the extent the counterclaim asserted by Fenech and Meltzer Lippe alleging account stated is dismissed. Based on the allegations related to the counterclaim and the parties’ submissions, Plaintiff frequently expressed concerns at what she was being billed for and objected (NYSCEF Doc. 42; see also Brennan Beer Gorman/Architects, LLP v Cappelli Enterprises, Inc., 85 AD3d 482, 483 [1st Dept 2011] [ no account stated claim where client repeatedly objected]). The Court has considered the remainder of Plaintiffs arguments and finds them unavailing.”