Phillips v Murtha 2023 NY Slip Op 01767 Decided on April 04, 2023 Appellate Division, First Department demonstrates that several recurring attorney representation scenarios in wills and estates legal malpractice claims will fail for lack of standing. The consistently failing storyline is that an elderly person is brought to an attorney who drafts a will which names the eventual plaintiff as a beneficiary of the will as well as executor of the will. When competing beneficiaries successful contest the will, the losing beneficiary wants to sue the attorney who drafted the will. Problems are whether the estate suffered damages and whether the beneficiary has standing to sue.

“In the context of estate planning malpractice actions, strict privity applies to preclude a third party, such as beneficiaries or prospective beneficiaries like plaintiffs, from asserting a claim against an attorney for professional negligence in the planning of an estate, absent fraud, collusion, malicious acts or other special circumstances (see Estate of Schneider v Finmann, 15 NY3d 306, 308-309 [2021]; Leff v Fulbright & Jaworski, L.L.P., 78 AD3d 531 [1st Dept 2010], lv denied17 NY3d 705 [2011]). While plaintiffs argue their claim against defendant attorneys is couched as one for simple negligence, as opposed to legal malpractice, plaintiffs have not pleaded facts to show that defendant attorneys owed plaintiffs a duty of care in the drafting of their client’s will and trust agreement. The strict privity requirement here protects estate planning attorneys against uncertainty and limitless liability in their practice (see Schneider, 15 NY3d at 310). Thus, plaintiffs’ negligence claim is unavailing for lack of factual allegations to demonstrate that defendants owed plaintiffs a duty.

Plaintiffs have not pleaded sufficient factual allegations in [*2]their amended complaint to indicate that circumstances of fraud, collusion and/or aiding and abetting exist in this case to override the strict privity rule. Plaintiffs have not alleged fraud with requisite specificity as, inter alia, there are no allegations defendants knowingly made material misrepresentations in the will and trust for the purpose of inducing justifiable reliance by their client (since deceased) upon such misrepresentations, and moreover the allegations made do not support favorable inferences in that regard (see Loreley Fin. [Jersey] No. 3 Ltd. v Citigroup Global Mkts. Inc., 119 AD3d 136, 139 [1st Dept 2014]). Here, defendants’ client signed the will and trust agreement, and notwithstanding the alleged diminished capacity which appellants attributed to her advanced age, the allegations do not show that she justifiably relied upon any misrepresentations in the will and trust. Plaintiffs’ claim for aiding and abetting a fiduciary breach is insufficiently alleged as the facts pleaded do not allege defendants breached a fiduciary duty owed to the plaintiffs (see Yuko Ito v Suzuki, 57 AD3d 205, 207 [1st Dept 2008]), or that they have standing to allege a breach of fiduciary duty on behalf of the estate. The relationship between an estate planning attorney and a prospective beneficiary under a will and/or trust does not in and of itself give rise to a fiduciary duty owed by the attorney to the prospective beneficiary (see Mali v De Forest & Duer, 160 AD2d 297 [1st Dept 1990], lv denied 76 NY2d 710 [1990]).

Plaintiffs’ assertion of a claim under Judiciary Law 487 is unavailing because the amended complaint does not allege defendant attorneys were counsel of record in any proceeding to which plaintiffs were a party (see Platt v Berkowitz, 203 AD3d 447 [1st Dept 2022]).”

It is always ironic when mistakes happen in a legal malpractice case, which itself is about mistakes made in litigation. Mrkulic v Peters 2023 NY Slip Op 31012(U)
March 30, 2023 Supreme Court, Kings County Docket Number: Index No. 505025/2020
Judge: Debra Silber is no exception.

“This is a legal malpractice action which arises from a personal injury action plaintiff
brought in the past, Mrkulic v Platinum Z, Inc. d/b/a Zen Palate, et al, under Index Number 2307/2012. On July 20, 2021, plaintiff’s attorney served notice of entry by e-filing in NYSCEF of the court’s decision on Motion Sequence #1, defendants’ pre-answer motion to dismiss. The court (J. Velasquez) denied defendants’ motion to dismiss, but did not specify a time for defendants to answer the complaint.
On November 9, 2021, plaintiff filed Motion Sequence #2, a motion for a default judgment order against defendants as they had not answered. Defendants then
electronically filed an answer on February 12, 2022, before plaintiff’s motion was scheduled to be heard. On February 15, 2022, plaintiff’s attorney e-filed a letter rejecting the answer as untimely. On February 16, 2022, plaintiff’s motion for a default judgment was called on an in-person motion calendar and submitted to the court (J. Velasquez), without any written opposition, and was then granted on defendant’s default by order dated March 1, 2022.

However, the court did not issue the usual default judgment order, which essentially
finds for the plaintiff on the issue of liability and requires an inquest on damages. Instead, the court issued an order which granted plaintiff permission to enter a money judgment for the amount demanded in the complaint, which is the amount of the money judgment which had been entered after an inquest in the 2012 action against the tortfeasors, but does not state (it is not clear if it could in fact so state) that the sum is owed jointly and severally with the defendants/judgment debtors in the 2012 action.
In addition, this is not really an action for a sum certain, and the amount defendants may owe plaintiff for the alleged legal malpractice is not a liquidated sum. The order directs the clerk to enter judgment against defendants for $255,405.86 plus interest from December 17, 2012, “the amount of the judgment order by the Hon. Peter P. Sweeney, J.S.C. Kings County, Index No. 2307/2012 on May 13, 2013” [Doc 36].”

” Now, defendants move, in Motion Sequence #3, to vacate their default in opposing
the plaintiff’s motion for a default judgment. Defendants are plaintiff’s former lawyer and his law firm. The affirmation in support is defective, because when an attorney represents himself, he must provide an affidavit and not an affirmation (see Slavenberg Corp. v Opus Apparel, Inc, 53 NY2d 799 [1981], citing Schutzer v Suss-Kolyer, 57 AD 2d 613). However the court finds that, in this case, this technicality should be overlooked in the interests of justice. See CPLR §2001. Defendant Peters sets forth a reasonable excuse for his default, and he had filed an answer to the complaint, albeit late, but before the default judgment order was issued. As we were in the midst of the Covid-19 Pandemic during the time period of these prior motions, it has been the general policy of this court to try not to default attorneys who have personal or family medical issues and thus request to appear virtually, and to accommodate their requests for virtual appearances. Further, the amount of plaintiff’s damages are not ascertainable on papers, and defendants are entitled to a trial.”

DeFranco v Napoli Bern Ripka Shkolnik LLP 2023 NY Slip Op 30952(U) March 28, 2023
Supreme Court, New York County Docket Number: Index No. 150188/2018 Judge: James E. d’Auguste describes what happens when cases are shuttled between the initial attorneys and “trial counsel”, which in this particular situation means a law firm that took all of the initial attorneys’ cases and worked them up for trial. The work in this unusual auto accident case was not successful.

“Plaintiffs GinaMarie and Daniel DeFranco are spouses who have resided at all relevant
times on Staten Island (see affidavit of GinaMarie [GinaMarie] DeFranco, sworn to December 11, 2021 [GinaMarie AffJ, i!i!l-2 [NYSCEF Doc No. 152]). Plaintiffs allege that GinaMarie was injured on May 21, 2003, driving through the intersection of Amboy Road and Barclay A venue on Staten Island, when the car she was operating ran over a “live electrical wire/power line” lying on the road surface, which shocked her and caused her, among other harms, serious, traumatic neurological, spinal cord, and
psychological injuries (second amended complaint [SAC] [NYSCEF Doc No. 104], ,r,i47-50).
Plaintiffs assert that GinaMarie’s injuries were proximately caused by the negligence of
Consolidated Edison Company of New York, Inc. (Con Ed) which, as the public utility service company entrusted to provide electricity to the City of New York, is obligated to maintain the safety of the City’s electrical power system (id.).”

“The Underlying Action went to trial in early January 2015. On or about January 13,
2015, the trial concluded with a verdict wholly in favor of Con Ed (SAC, if,I59-60).
Plaintiffs allege that they did not prevail in the underlying personal injury action because their case had not been properly prepared for, or presented at, trial. They fault their attorneys for failing to present certain available expert and non-expert evidence at trial to demonstrate Con Ed’s liability. Plaintiffs contend that if such evidence had been properly presented at trial, a verdict in their favor would have resulted (id. 1169-70).

For example, plaintiffs allege that there were certain marks left on GinaMarie’s shoes and the tire of GinaMarie’s car, both of which were caused by the electrical strike incident, but their trial attorneys failed to call a forensic expert to establish that these marks were “indicative of contact with high voltage/high amperage electricity” (id. 172). Plaintiffs also allege that trial counsel failed to call a physician to establish that GinaMarie’s injuries were consistent with an electrical shock, and an expert on electricity to establish Con Ed’s causation and fault in GinaMarie’s injury (id. 1~!73-74). Plaintiffs also fault trial counsel for failing to call non-expert witnesses, such as Daniel DeFranco (Daniel) to testify about, among other things, the particulars of GinaMarie’s accident and her resulting injuries, and for failing to call witnesses present at the
scene of the accident, including “emergency first responders” (id. i!178-80).”

“Napoli Defendants argue that dismissal of the SAC is warranted because plaintiffs’
allegations of malpractice are no more than unfair “second-guessing” of their trial strategy. Napoli Defendants also argue that plaintiffs have failed to properly plead that their alleged negligence was the “but for” causation of their alleged damages. Finally, Napoli Defendants argue that claims asserted individually against NBRS partners Paul Napoli and Marc Bern are barred by Section 26(b) of New York’s Partnership Law.

As to the first point, the affidavits that plaintiffs submitted in opposition are sufficient to
remedy the problems with their allegations in the SAC with respect to Napoli Defendants. In her affidavit, GinaMarie identifies several e-mail exchanges she had with attorneys Paul Napoli and Vincent Gonzalez of NBRS. In the earliest chain, dated June 4, 2012, Mr. Napoli told GinaMarie that he had discussed her case with Mr. Gonzalez “a number” of times, that they were putting the case together for trial, and that they had “engaged several experts to assist” them (GinaMarie aff [NYSCEF Doc No. 145], ~10 and ex A thereto).

In the second chain, begun on the morning of November 24, 2014, GinaMarie e-mailed
Mr. Gonzalez, a senior associate attorney ofNBRS, seeking information about the status of her case. Mr. Gonzalez responded the next day, apologized for the delay, and explained that he had “a medmal trial [ dropped] in [his] lap with no advance notice. Everything came to a halt” (id 11) and ex B thereto). Mr. Gonzalez also complained about the “shenanigans” going on at his law firm, which made conditions so difficult that “[i]t takes weeks to get a simple $45 check” (id ,i12). GinaMarie explained that she believed Mr. Gonzalez was referring to how the dissolution ofNBRS was adversely “affecting the day-to-day operation of the law firm” (id ,i,i12-13). GinaMarie stated that she suspects that these difficulties were the reason no experts were called to testify at her trial, even though Mr. Napoli had told her back in 2014 that experts had already been engaged (id. ill3).

In the third chain, beginning on Tuesday, January 6, 2015, Mr. Gonzalez e-mailed
plaintiffs to inform them that he had begun to pick a jury, and that he expected the trial to begin on that Thursday, January 8, and so wanted to meet with GinaMarie on Wednesday morning, to prepare her as the first witness (id. ,14 and ex C thereto). GinaMarie recalled that she had not met Mr. Gonzalez before this meeting, held the day before trial, and that the meeting lasted about an hour (id 115). GinaMarie responded, confirmed their Wednesday meeting, and asked whether she should bring anything, such as the shoes she wore the day of the accident (which bore a “swirl mark” from the shock she received), the tire from her car, which was also marked by the shock, or empty pill bottles for the medication she was taking. Mr. Gonzalez replied:
“As I explained to you before, we need to establish LIABILITY. Without liability
there is no case. Therefore, all the pills in your medicine cabinet won’t help. As you
already know, we don’t have an expert on the issue of defective or inadequate
transformer or improper maintenance and repair. That leaves us with Res Ipsa
Loquitur and the possibility that overgrown tree branches caused the wires to be
pulled from the transformer. We will discuss our options on Wednesday. The
eyewitnesses have been subpoenaed ….
We will need the doctors for Wednesday and Thursday of next week. No excuses.
Dr. Sharon and Shiau both have to testify if we get to that point. We can call
additional doctors but Sharon and Shiau are absolutely necessary.

I will have Kenia contact them tomorrow. However, I recommend that you speak
with them and make sure they know they have to appear. We are not going to get
another chance. This trial will be concluded by the end of the month”
(id. ,i,i 16-19 and ex C thereto [emphasis in original]).

In the last e-mail in this chain, Mr. Gonzalez instructed GinaMarie on what she should
bring with her to Court. He also stated that her “biggest obstacles are to explain how you drove to your house from the scene and you can’t remember; why you left the scene; why you didn’t go to the hospital on the day of the incident; how you got shocked” (id. ex C). Among other things, GinaMarie stated that although Mr. Gonzalez noted that Drs. Sharon and Shiau would “absolutely have to testify,” they were never called at trial (id. ,it 7), and that she believes that had the doctors testified about how electric shock caused her injuries, they would have succeeded in establishing liability at trial (id.). She also asserted that plaintiffs would have likely prevailed if the experts Mr. Napoli claimed to have engaged had been used at trial (id. ,II 0), or if she had been afforded more time to prepare her testimony (id. ,r15).”

Mazzone v Alonso, Andalkar & Facher, P.C. 2023 NY Slip Op 01746 Decided on March 30, 2023 Appellate Division, First Department shows us that summary judgment in favor of plaintiff is a fragile creature, and here was subject to abrupt and complete reversal. The AD not only took away summary judgment from plaintiff, it went and ordered dismissal for one of the defendants.

“Judgment, Supreme Court, New York County (Andrew Borrok, J.), entered July 27, 2022, awarding plaintiff the total amount of $731,156.19 against defendants Alonso, Andalkar & Facher, P.C., Mark J. Alonso, Esq., and Catania T. Facher, Esq. (collectively, the AAF defendants), and bringing up for review an order, same court and Justice, entered on or about March 9, 2022, which to the extent appealed from as limited by the briefs, denied defendant Donna M. Russo’s motion for summary judgment dismissing the complaint and AAF defendants’ cross claim against her, denied AAF defendant’s motion for summary judgment dismissing the complaint as against them, and granted plaintiff’s motion for summary judgment as against AAF defendants, unanimously modified, on the law, the judgment vacated, Russo’s motion granted and plaintiff’s motion for summary judgment against the AAF defendants denied, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing the complaint and AAF defendants’ cross claim as against Russo. Appeals from the order unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff’s motion for summary judgment on her legal malpractice cause of action against the AAF defendants should have been denied. Issues of fact exist as to whether, inter alia, AAF’s advice regarding solicitation was reasonable under the circumstances and in harmony with Bessemer Trust Co., N.A. v Branin (16 NY3d 549 [2011]); whether plaintiff has shown the requisite injury, given that she faced greater losses had she been fired by RBC, which would have triggered her obligation to repay a $741,827 loan; whether AAF’s advice was in any event a proximate cause of plaintiff’s injury, given that she is alleged to have disregarded it; and whether Schusterman materially breached their arrangement thereby excusing plaintiff’s continued performance thereunder.

Russo was entitled to summary judgment dismissing the complaint and the cross claim of the AAF defendants against her (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). Plaintiff did not oppose Russo’s motion and in opposing the motion, the AAF defendants did not directly dispute that Russo’s expert had shown, prima facie, that her advice comported with the standard of care, nor did they submit any expert evidence analyzing Russo’s actions or argue that expert evidence was not required to rebut Russo’s showing on departure from the standard of care (see Cosmetics Plus Group, Ltd. v Traub, 105 AD3d 134, 141 [1st Dept 2013], lv denied 22 NY3d 855 [2013]).”

Appel v New York City Police Dept. 2023 NY Slip Op 30786(U) March 16, 2023
Supreme Court, New York County Docket Number: Index No. 155293/2022
Judge: Judy H. Kim asks the question of whether it was the Mossad who came for Plaintiff or merely life support medical personnel. The Court basically finds that it was the later.

“On or about August 10, 2020, plaintiff commenced an action in the United States District Court for the Southern District of New York, under index number l:20-cv-06265-VSB (the “Federal Action”), against the Hon. Esther Hayut (the Chief Justice of the Supreme Court of the State oflsrael), YosefMeir Cohen (the former head of the Mossad), Dr. Kenneth Davis (President and CEO of defendant Mount Sinai Health System, Inc.), and Dr. David Reich (President and Chief Operating Officer of Mount Sinai Hospital), alleging that these individuals were co- conspirators in a plot to torture and murder her. As pertinent here, plaintiffs complaint in the Federal Action alleged that on June 11, 2020, she published posts on Facebook and Linkedin exposing corruption in Israel’s Supreme Court (NYSCEF Doc. No. 107 [Compl. at iJ18]). As a result of these posts, plaintiff received a “threatening visit from what appear[ed] to have been Mossad assassins” on June 30, 2020, “[arriving] in a run-down van with the Mount Sinai Hospital
logo, which, upon information and belief, was not a real Mount Sinai Hospital van” (Id. at iJiJ23,25-26]). Plaintiff subsequently contacted Dr. Kenneth Davis and Dr. David Reich to confirm whether Mount Sinai Hospital sent these individuals and, if so, for what purpose (Id.). These doctors confirmed that Mount Sinai did send two clinicians to plaintiffs home, based on a referral from NYC Well (Id. at iJ26). Plaintiff alleged that these doctors were bribed to lie to her (Id. at iJ25).

During the Federal Action, plaintiff raised concerns regarding Liu’s conduct, submitting a letter application to United States District Judge John P. Cronan seeking leave to file a motion for the commencement of a criminal contempt proceeding against Liu
for her misbehavior in this action, including her filing knowingly false statements
with the Court in an attempt to cover-up blatant perjury [by Sara Kluge] and what
the facts clearly indicate was an attempted assassination attack on me on June 30, 2020.

As the facts in the Complaint show, the Sinai Defendants facilitated the provision of false information to me by the Mount Sinai Health System regarding what was, as the facts clearly indicate, an attempted assassination attack on me by Mossad operatives who arrived for me in a run-down, fake-looking van with the Mount Sinai Hospital logo on June 30, 2020 (See Doc. No. 112 [Pre-Motion Conference Request]).”

“Plaintiff has also failed to state a claim under Judiciary Law §487 (Id.). That statute
provides that “an attorney or counselor who [i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party … is guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action” (Judiciary Law §487[1]). However, insofar as the Opinion and Order in the Federal Action “undisputedly addressed the instant allegations raised by the plaintiff … and found them to be without merit” plaintiff’s claim cannot survive (God’s Battalion of Prayer Pentecostal Church, Inc. v Hollander, 24 Misc 3d 1250(A) [Sup Ct, Nassau County 2009] [internal citations and quotations omitted], affd, 82 AD3d 1156 [2d Dept
2011] lv to appeal denied 17 NY3d 714; see also Mtge. Elec. Registration Sys., Inc. v McVicar, 203 AD3d 919 [2d Dept 2022]). Even ignoring the foregoing, the complaint’s allegations regarding Liu’s purportedly deceptive acts “are conclusory and factually insufficient” (Shaffer v Gilberg, 125 AD3d 632, 635-36 [2d Dept 2015] [internal citations omitted]). Finally, plaintiff’s Judiciary Law §487 claim “must fail, as plaintiff cannot establish that [she] was deceived by the allegedly false [documents], or that [she] suffered any damages proximately caused by such deceit perpetrated on [her] or on the court” (O’Connor v Dime Sav. Bank of New York, F.S.B., 265 AD2d 313, 313-14 [2d Dept 1999] [internal citations omitted]).”

Sang Seok Na v Malik & Assoc., P.C. 2023 NY Slip Op 30831(U) March 20, 2023 Supreme Court, New York County Docket Number: Index No. 100962/2017 Judge: David B. Cohen is an example of the proverb “too many cooks spoil the broth.” Simply read through the history to see how this happens.

“This malpractice action arises from legal representation plaintiff received in a personal
injury action he commenced in 2003 against Greyhound Lines Inc. (Index no. 13453/03 [Sup Ct, Queens County]) (NYSCEF 137-139), which had the following procedural history, according to a decision on plaintiff’s motion to restore it to active status:

This action was stricken from the trial calendar on May 10, 2006. A motion to restore was filed on April 10, 2007 and subsequently withdrawn on October 16, 2007. In January 2008, plaintiff changed attorneys for the fourth time and retained the firm of Sapone &
Schietroma, P.C. By letter dated January 28, 2008, counsel for the defendant requested
responses to outstanding discovery and the rescheduling of plaintiff’s deposition and
physical examination. In response, plaintiff’s attorney, Paul Schietroma, indicated further discovery would be provided once his file was reconstructed. During the remainder of 2008, plaintiff made inquiries into retaining new counsel to pursue this action and an additional medical malpractice claim. In December 2008, the firm of Sapone & Schietroma, P.C. was dissolved and plaintiff determined that he would continue to be represented by Mr. Schietroma in this matter. It was not until May 2009 that Mr. Schietroma discovered that the case had been stricken from the calendar. An oral request made to defense counsel in June 2009 to consent to restoration of the case was refused.

Thereafter, the motion to restore was filed in March 2010, and was subsequently denied, on the ground that:

While counsel may have experienced uncertainty concerning his continued representation of plaintiff that was further complicated by the dissolution of his firm, it is clear that no diligent efforts were undertaken to determine the status of this case until May 2009. Outstanding discovery was never provided to the defendant. In addition, even after defendant’s refusal to consent to restore this matter, Mr. Schietroma waited until March 2010 to serve this motion. As a result, plaintiff has failed to demonstrate a reasonable excuse for the delay or rebut the presumption of abandonment. Moreover, since nine years have now elapsed since the accident occurred, the defendant would be prejudiced if this action were restored to the trial calendar.
( citations omitted).

In October 2011, the Appellate Division, Second Department upheld the dismissal of the
Greyhound action (88 AD3d 980 [2d Dept 2011]), and between June 2012 and December 2014, plaintiff commenced three legal malpractice actions in various state courts related to the dismissal, which are in issue here and discussed further (infra., II).
In April 2015, plaintiff signed a retainer agreement with the Malik defendants, by which
he retained them in connection with his pending legal malpractice actions (along with a medical malpractice case which is not relevant to this action), and they agreed to file opposition and/or a cross motion to two pending motions in the malpractice actions, as well as to “review entire file and research issues presented” (NYSCEF 85). Defendant Jamil is an attorney who worked for the Malik defendants on plaintiffs cases (NYSCEF 190). In July 2017, plaintiff, self-represented, commenced this action against defendants, asserting, among other things, claims of legal malpractice, fraud, fraudulent concealment, negligent misrepresentation, negligence, breach of fiduciary duty, and breach of contract (Doc No. 191).”

” In June 2012, plaintiff commenced a legal malpractice action against Sivin & Miller, LLP
(Firm No. 1), Sapone & Schietroma, P.C. (Firm No. 2), Schietroma, P.C. (Firm No. 3), and
Schietroma, individually. According to the justice presiding in the matter, plaintiff alleged that Firm No. 1 failed to prevent the Greyhound action from being stricken from the calendar and eventually dismissed, and that Firm Nos. 2 and 3 failed to inform him of the action’s status and to move timely to restore it (index no. 701527/13, NYSCEF 28).
Firm No. 1 moved for summary judgment in the action in October 2013, which plaintiff
did not oppose (id.). The motion was granted on the ground that plaintiffs malpractice claim was barred by the applicable statute of limitations, and plaintiffs claims against Firm No. 1 were thus severed and dismissed (id). It does not appear that plaintiff appealed this decision.

In February 2015, Firm Nos. 2 and 3 and Schietroma (collectively, the Schietroma
defendants) moved for summary dismissal of the complaint against them (id., NYSCEF 41). The motion was returnable in March 2015, and later adjourned to May 2015 (id., NYSCEF 56). In April 2015, plaintiff retained Malik and Malik P.C. as his attorneys (id., NYSCEF 57), and in June 2015, Malik submitted opposition to defendants’ summary judgment motion (id., NYSCEF 60). In September 2015, plaintiff discharged Malik as his attorney and elected to proceed prose (id., NYSCEF 65).

By decision and order dated September 17, 2015, the summary judgment motion was
granted as the Schietroma defendants demonstrated that plaintiff was unable to prove that he would have prevailed in the Greyhound action but for their alleged negligence, and plaintiff failed to raise a triable issue (id., NYSCEF 67). Plaintiff appealed the decision on his own (id., NYSCEF 72).

In July 2018, the Appellate Division, Second Department, affirmed the dismissal, finding
that plaintiff failed to raise a triable issue in his opposition papers as his arguments consisted “entirely of speculation and conclusory assertions.” (163 AD3d 597 [2d Dept 2018]).”

Simmons v Jones Law Group, LLC 2023 NY Slip Op 01316 Decided on March 15, 2023
Appellate Division, Second Department recites some simple and well-settled principles. Nevertheless, interpretation turns on a short and not deeply discussed issue. The client fires you, but the court will not let you go. What to do?

“In February 2014, the plaintiff, Juanita Simmons, retained the defendant Jones Law Group, LLC (hereinafter Jones Law), to defend her and her business in a personal injury action (hereinafter the underlying action). On February 18, 2015, Simmons purportedly discharged Jones Law during a telephone conversation with the defendant Andrew P. Jones. Although a letter dated March 23, 2015, memorializing this discharge was purportedly sent to Simmons for her signature, she never executed it. Jones Law thereafter filed three separate ex parte motions pursuant to CPLR 321 for leave to withdraw as counsel for Simmons and her business. Those motions were all denied.

On September 26, 2016, Simmons failed to appear for trial, either personally or by counsel, and an inquest was held. Subsequently, a judgment was entered against Simmons and her business in the principal sum of $357,460. Although Simmons and her business later moved, inter alia, to vacate the judgment entered upon their default, the Supreme Court denied that branch of the motion in an order dated October 18, 2018, upon determining that Simmons and her business lacked a reasonable excuse for the default.

On July 8, 2019, Simmons commenced the present action against Jones Law and Andrew P. Jones, inter alia, to recover damages for legal malpractice and breach of contract. The defendants moved, among other things, pursuant to CPLR 3211(a)(5) to dismiss those causes of action as barred by the doctrines of res judicata and collateral estoppel or, alternatively, to dismiss the legal malpractice cause of action as time-barred. In an order entered June 29, 2021, the Supreme Court, inter alia, denied those branches of the motion. The defendants appeal.”

“The Supreme Court properly determined that the present action was not barred by the doctrine of res judicata. The causes of action asserted by Simmons in the present action do not arise out of the same transaction or series of transactions as those raised in the underlying action, sounding in premises liability (see Cullen v Moschetta, 207 AD3d 699, 700; Vigliotti v North Shore Univ. Hosp., 24 AD3d 752, 754). Moreover, Simmons’s claims could not have been raised in the underlying action, since the defendants were not parties in that action and were not in privity to any of the parties (see Cullen v Moschetta, 207 AD3d at 700; Mosher v Baines, 254 AD2d 467).”

“Contrary to the defendants’ contention, the issue to be resolved in the present action is not identical to the issue decided in the October 18, 2018 order issued in the underlying action (see Weiss v Manfredi, 83 NY2d at 976; Mosher v Baines, 254 AD2d 467, 467). The issue decided in that order was whether Simmons and her business proffered a reasonable excuse for their default in appearing at trial. In contrast, at issue in the present action is whether the defendants were negligent in their representation of Simmons (see Weiss v Manfredi, 83 NY2d at 976). Since there is no identity of issue, Simmons is not collaterally estopped in this action.

“On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired” (Tulino v Hiller, P.C., 202 AD3d 1132, 1134-1135). “‘An action to recover damages arising from legal malpractice must be commenced within three years, computed from the time the cause of action accrued to the time the claim is interposed'” (Joseph v Fensterman, 204 AD3d 766, 769, quoting Schrull v Weis, 166 AD3d 829, 831; see CPLR 214[6]). “Accrual is measured from the commission of the alleged malpractice, when all facts necessary to the cause of action have occurred and the aggrieved party can obtain relief in court” (Farage v Ehrenberg, 124 AD3d 159, 164; see McCoy v Feinman, 99 NY2d 295, 301).

Here, the defendants failed to satisfy their initial burden of demonstrating, prima facie, that the cause of action alleging legal malpractice was untimely. Since the alleged malpractice occurred on September 26, 2016, when the defendants failed to appear for trial on Simmons’s behalf, this action, commenced less than three years later, was timely.”

Ankney v Gjoni Law, P.C. 2023 NY Slip Op 30733(U) March 9, 2023 Supreme Court, New York County Docket Number: Index No. 156246/2022 Judge: Lisa S. Headley and Ankney v Gjoni Law, P.C. 2023 NY Slip Op 30734(U) March 10, 2023 Supreme Court, New York County Docket Number: Index No. 156246/2022 Judge: Lisa S. Headley, (same caption, different defendants) are puzzling, but ultimately turn on procedural defects in this pro-se litigation. Why the failure to present proof of “no texting” did not state a cause of action seems lost in the procedural morrass.

On July 27, 2022, plaintiff filed this action against Gjoni Law, P.C., Gencian Gjoni, Esq.,
Haicken Law, and Matthew Haicken, Esq., (“Defendants”) for alleged legal malpractice arising out of the Defendants’ prosecution of plaintiffs underlying action to recover for personal injuries sustained when plaintiffs bicycle collided with a motor vehicle. Plaintiff hired Defendant Matthew Haicken for plaintiffs personal injury action against the motorist. During discovery in the underlying action, the motorist alleged that plaintiff was inattentive and was texting on his phone prior to the collision, however plaintiff claims he provided his attorney, Defendant Haicken, with time-stamped evidence that he was not texting at that time. As a result, upon a motion for summary judgment on liability, the Court determined that plaintiff established that the motorist had violated
local traffic laws, however, plaintiff failed to establish he was free from comparative negligence in this accident. Therefore, the Court granted plaintiffs summary judgment motion on the issue of liability and ordered a trial on the questions of”[c]omparative fault of the plaintiff, if any.”

Plaintiff alleges that after the issuance of the summary judgment order, Defendant Haicken referred the underlying personal injury case to Defendant Gjoni to handle the trial on the issue of comparative liability. Plaintiff asserts, inter alia, that he informed Defendant Gjoni that he had phone records that would refute the defense claim that plaintiff was using his phone at the time of the collision.

At the personal injury trial, plaintiff alleges that the attorneys for the motorist presented witnesses and evidence to suggest that plaintiff was texting when the accident occurred in order to prove their affirmative defense of comparative liability. Plaintiff claims that his attorney, Gjoni questioned the driver of the motor vehicle, and challenged his credibility, and then Gjoni rested the plaintiffs case without calling plaintiff or the responding police to testify or offer the phone records or photographic evidence. After deliberation, the jury determined unanimously that plaintiff was negligent and 99% responsible for the accident. Plaintiff also alleges that Gjoni
advised plaintiff that he had half an hour to decide whether to accept a $2,500.00 settlement offer, and Gjoni did not advise plaintiff as to alternative options available to him. Subsequently at the trial on damages, plaintiff alleges, again that his attorney, Gjoni called no medical expert, and the jury unanimously awarded no damages.”

This Court finds that plaintiff’s complaint and the amended complaint both fail to assert
facts in support of any element of the negligence and breach of fiduciary claims. Plaintiff did not establish or demonstrate the negligence of counsel, proximate cause of their loss, and proof of actual damages. On the contrary, plaintiff relies on allegations and inferences which do not provide for an enforceable right ofrecovery. Id at 29 N.Y.3d 137, 142. Furthermore, plaintiff has failed to demonstrate that he would have not sustained losses “but for” defendant’s negligence and has not demonstrated to the court that plaintiff would have achieved a better outcome at trial.

On a motion brought under CPLR §3211 (a)(l) dismissal is warranted when documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law.” Allegations that are “bare legal conclusions” or that are “inherently incredible or flatly contradicted by documentary evidence” are not sufficient to withstand a motion to dismiss.” RTW Retailwinds, Inc. v. Colucci & Umans, No. 150794/20, 2023 WL 1974320 (N.Y. App. Div. Feb. 14, 2023). Here, as evidenced by NYSCEF Doc. No. 11, plaintiff entered into a retainer agreement with the Haicken Defendants, which established that the Haicken Defendants had the right to associate and allow as trial counsel, Defendants Gjoni.

Plaintiff has not demonstrated how the Haicken Defendants, by assigning trial counsel,
caused plaintiff’s alleged damages. Pursuant to a motion brought under CPLR §3013 “statements in pleadings shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.” Here, plaintiff has coupled the defendants in his complaint without ascertainable causation. More specifically, the complaint lacks facts to support a showing that a different trial counsel would have achieved a better outcome.”

(from the second decision) “This Court finds that the plaintiff’s complaint and the Amended complaint both fail to assert facts in support of any element of the negligent and breach of fiduciary claims. The defendant has demonstrated by competent evidence, and attached as Exhibits A and C of the motion (seq. no. 001), as proof of plaintiff’s duplicative filings of the complaint, both filed by counsel and by prose plaintiff. (See, NYSCEF Doc. No. 5 and 7). Here, plaintiff has failed to establish the negligence of counsel, proximate cause of his loss, and proof of actual damages. Furthermore, plaintiff has failed to demonstrate that he would have not sustained losses “but for” defendant’s negligence and has not demonstrated to the court any alternative manner by which plaintiff would have been successful in winning his case.
A court has broad discretion in considering whether to dismiss an action, pursuant to CP LR §3211 (a)(4), on the ground that another action is pending between the same parties on the same cause of action. Whitney v. Whitney, 57 N.Y.2d 731, 732 (1982). Plaintiff’s complaints only differ in regard to the signature lines on the submitted complaints. The first complaint was signed by plaintiff’s counsel, and the later dated complaint was signed by pro se plaintiff. As such, both the complaint and the Amended complaint must be dismissed because plaintiff has impermissibly filed two complaints
addressing two very same issues. (See, NYSCEF Doc. No. 5-7).In opposition, the plaintiff does not refute the arguments of duplicate filings, or state the status of those cases.”

The mathematics of calculating the statute of limitations in light of the Covid tolling periods is discussed in Lewner v Dahill 2023 NY Slip Op 30629(U) February 28, 2023
Supreme Court, New York County Docket Number: Index No. 805366/2021 Judge: Leslie A. Stroth. This decision serves as a template in adding days to the underlying statute of limitations for cases subject to Covid tolling between March 20, 2020 and November 2, 2020.

“The instant motion arises out of an action to recover damages for alleged breach of contract, legal malpractice, and breach of fiduciary duty. Plaintiff Charles Lewner (plaintiff), represented . by counsel, alleges that defendants William Dahill and Wollmuth Maher & Deutsch, LLP (together, defendants) failed \o properly represent-him in two separate legal proceedings – an Article 81 guardianship proceeding seeking guardianship of the person and property of his late father and a proceeding concerning the estate of his late mother.”

“Here, all claims are time-barred. With respect to plaintiff’s first cause of action, the Article 81 guardianship proceeding concerning plaintiff’s late father, plaintiff alleges in his amended complaint that defendants committed malpractice in agreeing to the terms of a stipulation involving the management of real property dated January 20, 2017, which was so-ordered by Honorable Tanya R. Kennedy. Defendants assert that the claim accrued on January 20, 2017 and that plaintiff was required to commence the subject action by January 20, 2020. Plaintiff commenced this action on November 18, 2021 – 1 year, 9 months, and 29 days after the statute of limitations expired. Additionally, even if this cause of action accrued following plaintiff’s counsel’s relief from representation on June 6, 2017 and even considering the ensuing 30-day stay, plaintiff’s claim is still untimely.”

“The Court notes that on March 20, 2020, Governor Andrew M. Cuomo issued Executive
Order (EO) No. 202.8, which tolled the statute of limitations on civil cases due to the COVID-19 pandemic. 1 This EO was extended until November 3, 2020.2 Regarding plaintiffs first cause of action, as discussed above, defendants correctly assert (and plaintiff has not objected) that the statute of limitations expired on January 20, 2020. This was before the EO was issued and, therefore, stands as the proper date of expiration of this claim. Even if the Court were to consider the accrual date to be July 6, 2017, after the 30-day stay, the statute of limitations would have expired on July 6, 2020 and plaintiff would have had slightly over three months to commence this action at the time the EO was issued. Therefore, the statute of limitations after the EO tolling period would have expired in February 2021, and given that the complaint was filed on November 18, 2021, it was still untimely.

Regarding plaintiffs second cause of action, again, the date of expiration of the statute of limitations was June 23, 2020. This fell during the EO’s tolling period. When the EO was put in place on March 20, 2020, plaintiff had approximately three months remaining to bring this claim before it would have expired on June 23, 2_020, but the tolling period moved the date of expiration to three months after the EO ended on November 3, 2020, or February 3, 2021. Plaintiff did not commence this action until November 18, 2021. Therefore, this claim is still untimely despite the EO tolling period.”