NFGTV, Inc. v Lutz & Carr Certified Pub. Accountants, LLP 2023 NY Slip Op 50849(U) [79 Misc 3d 1241(A)] Decided on August 9, 2023 Supreme Court, New York County
Borrok, J. is the rare summary judgment win by a plaintiff. In this case, defendants’ own application to the IRS doomed the defense.

“NFGTV’s motion (Mtn. Seq. No. 001) for summary judgment is granted because it is undisputed that L&C advised both Two Franks and NFGTV that it was necessary to file an IRS Form 3115 and then filed it for Two Franks but failed to file it for NFGTV. Subsequently, when L&C acknowledged their mistake, they themselves told the IRS that the individual plaintiffs would be entitled to a refund and the amount of such proposed refund (i.e., that there was sufficient basis for such refund). Lastly, to the extent that L&C argues that this should have been picked up by the accountants doing the taxes for tax years following the 2016 tax year, it was L&C who completed the tax returns for the 2017 tax year and they did not in fact pick up the 2016 error that they had made. As such, L&C does not raise an issue of fact warranting denial of the motion or a trial on the issue of their liability (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Damages are referred to a JHO/Special Referee to hear and determine.”

“In their opposition papers, L&C argues that there are material issues of fact as to whether (i) whether their failure to prepare and file the IRS Form 3115 for NFGTV was a departure from the accepted standards of accounting practice such that it can constitute malpractice, (ii) whether Messrs. Barraud and Springman would have been able to deduct flow-through losses from NFGTV to their individual tax returns to offset their taxable income, such that they were damaged, and (iii) whether the accountants that were hired by the plaintiffs after L&C was terminated failed to correct the 2016 tax returns before the statute of limitations closed, such that their actions constitute an intervening cause. The arguments fail.

A court can find malpractice absent expert testimony where the ordinary experience of the fact finder provides a sufficient basis for judging the adequacy of the professional service (Estate of Nevelson v Carro, Spanbock, Kaster & Cuiffo, 259 AD2d 282, 283 [1st Dept 1999]; cf. Gertler v Sol Masch & Co., 40 AD2d 282, 282 [1st Dept 2007]).

As discussed above, it is undisputed that L&C both advised that filing the IRS Form 3115 was required and they did in fact file it for one of the plaintiffs’ companies (Two Franks) but not for the other (NFGTV) for the 2016 tax year. Stated differently, L&C established the standard of [*3]care required and their own breach by advising that the Form 3115 was required and by admitting that they had made a mistake in not filing it (NYSCEF Doc. No. 71, at 2-3). Additionally, L&C themselves submitted papers to the IRS indicating that as a result of their mistake, the plaintiffs were damaged and that the plaintiffs substantially overpaid their taxes and the individual plaintiffs were entitled to take these deductions on their individual tax returns (NYSCEF Doc. Nos. 71-73). This isn’t a question of the plaintiffs’ word against the defendant’s, it is a question of the defendant’s word against the defendant. As such, there are no material issues of fact for trial that the defendant committed professional malpractice.^[FN1] Finally the Court notes that the work done by other accounting firms for subsequent years does not constitute an intervening superseding cause to the work done by L&C for the 2016 tax year because it was L&C that completed the tax returns for the 2017 tax year (Bachmann, Schwartz & Abramson v Advance Intl., 251 AD2d 252, 253 [1st Dept 1998]; cf. Pyne v Block & Assoc., 305 AD2d 213 [1st Dept 2003] and Golden v Cascione, Chechanover & Purcigliotti, 286 AD2d 281 [1st Dept 2001]).”

Silverman v Greenberg 2023 NY Slip Op 32993(U) August 28, 2023
Supreme Court, New York County Docket Number: Index No. 450304/2021
Judge: Louis L. Nock is a case in which Plaintiff strikes out. Three pitches, three strikes.

“In this legal malpractice action, Secured Worldwide, LLC (“Secured”), predecessor in
interest to American Diamond Mint LLC, and its principal, plaintiff Arthur Joseph Lipton, were represented by defendants in a federal action captioned Secured Worldwide, LLC v Kinney (No. 15 Civ. 1761, U.S. Dist. Ct., S.D.N.Y.) (the “Federal Action”). Plaintiffs herein claim that defendants committed the following acts of malpractice: failing to object to the consideration of evidence and testimony that was assertedly precluded under an earlier order of the court in the Federal Action; failing to question a witness regarding potential impeachment information; and failing to take an appeal of the adverse decision rendered in the Federal Action against Secured. Plaintiffs assert that the adverse decision was then used as the basis for a collateral estoppel finding in other action involving plaintiffs, the end-result of which led to Secured and Lipton declaring bankruptcy.”

“Plaintiffs’ argument that defendants failed to adequately object to the consideration of certain evidence and testimony regarding Secured’s relationship with nonparty GemShares is undermined by the federal District Court’s supplemental order
(NYSCEF Doc. No. 15) clarifying a prior in limine order (NYSCEF Doc. No. 4), which clarified that: “the in limine ruling does not bar either party from introducing evidence about (1) the relationship between GemShares and Secured Worldwide; (2) how Kinney became involved with Secured Worldwide . . . . Kinney’s time at GemShares provides necessary background for the claims in suit.” (NYSCEF Doc. No. 15 at 1 [emphasis added].) Thus, the court in the Federal Action had expressly held that the evidence and testimony to which plaintiffs assert defendants should have objected, was admissible”

“Additionally, and as a general matter, disagreement with an attorney’s reasonable
strategic and tactical choices is not grounds for malpractice (Iocovello v Weingrad & Weingrad, LLP, 4 AD3d 208 [1st Dept 2004]), and “hindsight . . . is an unreliable test for determining the past existence of legal malpractice” (Sklover & Donath, LLC v Eber-Schmid, 71 AD3d 497, 498 [1st Dept 2010] [internal quotation marks and citations omitted]). Further, and specifically with regard to defendants’ asserted failure to elicit impeachment evidence from a witness, the trial testimony shows that the witness had no recollection of a conversation with Kinney regarding the patent involved in the underlying dispute in the Federal Action (see, NYSCEF Doc. No. 19 at 4-5). It is unreasonable to expect that defendants should have then attempted to get the witness to impeach his own testimony after claiming that he had no recollection.

Finally, plaintiffs do not dispute that Lipton instructed defendants not to appeal the
verdict against Secured (email exchange, NYSCEF Doc. No. 20). Whether to take an appeal after an adverse judgment, is committed to the client rather than the attorney (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.2[a] [“a lawyer shall abide by a client’s decisions concerning the objectives of representation”]). Moreover, on appeal of the verdict of the court after a bench trial, the court’s findings of fact are subject to a “clear error” standard of review (Atlantic Specialty Ins. Co. v Coastal Envtl. Group Inc., 945 F3d 53, 63 [2d Cir 2019]). Plaintiffs fail to allege that an appeal would have been successful, as they do not allege facts showing that they could have reached the “clear error” standard. Accordingly, they have also failed to demonstrate that the failure to appeal was a proximate cause of any of their damages.”

Kadah v Kadah 2023 NY Slip Op 32889(U) August 18, 2023 Supreme Court, New York County Docket Number: Index No. 152026/2022 Judge: Richard Latin concerns a legal malpractice claim brought in New York concerning legal work performed in a Florida estate. Where should the claim be brought and if brought in NY is it materially inconvenient?

“This action stems from alleged malpractice in the handling of a legal matter relating to
plaintiff’s ownership of International Controls and Measurements Corp. (“ICM”), specifically the alleged failure to file a claim that plaintiff owned 3,160 shares of ICM stock prior to the November 1, 2016 deadline to make such a claim. It is uncontested that no timely claim was filed. However, H&K argue that they were not retained to represent Kadah individually, but rather in his role as Administrator ad litem over the company. Defendant H&K further asserts that ownership of shares in ICM could not be established despite best efforts, due to significant issues with corporate records.”

“Defendant H&K alternatively moves to dismiss plaintiff’s amended complaint pursuant to CPLR 327 by arguing that Florida is the appropriate venue for this action. It is uncontested that the probate proceeding was administered in Florida pursuant to Florida law and that H&K utilized Florida attorneys and maintained their files relating to the case in Florida.”

“Plaintiff argues that Defendant H&K is a multinational law firm with numerous offices,
including the New York office that plaintiff interacted with when he first retained the firm and that the inconvenience of Florida for plaintiff, a New York resident, would render Florida the forum non conveniens. Plaintiff acknowledges that the probate court proceeding was in Florida and under Florida law but argues that the legal work performed during the period in which the malpractice was alleged to have occurred – between July 2016 and November 2016 – took place mostly in New York and submits billing documentation in support. Lastly, plaintiff argues that numerous ICM attorneys, accountant and board members who would be potential witnesses are based in New
York.

After carefully weighing the relevant factors, the critical difference between this case and Rosenberg is that the plaintiff is not a resident or domiciled in Florida which sufficiently adjusts the calculus so as to necessitate a different result (id.). While the probate proceeding was in Florida, the legal work performed during the relevant period largely occurred in New York. Furthermore, it is uncontested that the relevant Florida filing deadline was missed and instead the dispute relates to the nature of the relationship between the parties created by the contractual relationship formed
in New York and the performance of the obligations stemming therefrom – issues which do not require a New York court to apply or interpret Florida law to such an extent that a Florida court would be significantly better positioned to appropriately handle the matter.

Meanwhile the burden on requiring an individual plaintiff who does not have a residence or domicile in Florida to pursue this action in Florida is prejudicial and creates significant practical difficulties. Defendant H&K argues that plaintiff has already demonstrated that he can pursue litigation in Florida due to his conduct in the probate court proceeding and that plaintiff is currently pursuing litigation relating to the probate court pending in Florida, but plaintiff has no alternative than to pursue those actions in Florida. However, this action – unlike those actions – has a considerable and sufficient nexus to New York to pursue the action here and Plaintiff need not be prejudiced by an inconvenient forum where he did not elect to pursue this action simply because he had no choice but to litigate a separate action in that forum. “[U]nless the balance is strongly in favor of the [moving party], the plaintiff’s choice of forum should rarely be disturbed.” (Swaney, 158 AD3d at 438). Here, the balance is not strongly in defendant H&K’s favor and plaintiff’s choice of forum should not be disturbed – particularly where litigating this action in Florida would present a clear and prejudicial burden on plaintiff.”

Kadah v Kadah 2023 NY Slip Op 32889(U) August 18, 2023 Supreme Court, New York County Docket Number: Index No. 152026/2022 Judge: Richard Latin has an excellent discussion of how privity of contract, a general requirement in legal malpractice claims, can apply both individually and when the law firm is representing a person as an entity, in this case, as administrator of an estate.

“This action stems from alleged malpractice in the handling of a legal matter relating to
plaintiff’s ownership of International Controls and Measurements Corp. (“ICM”), specifically the alleged failure to file a claim that plaintiff owned 3,160 shares of ICM stock prior to the November 1, 2016 deadline to make such a claim. It is uncontested that no timely claim was filed. However, H&K argue that they were not retained to represent Kadah individually, but rather in his role as Administrator ad litem over the company. Defendant H&K further asserts that ownership of shares in ICM could not be established despite best efforts, due to significant issues with corporate records.”

“Defendant H&K first argues that dismissal is appropriate because there was no actual
privity or a relationship that closely resembles privity. Defendant H&K asserts that it was retained for the limited purpose of assisting plaintiff in being appointed as Administrator ad litem over the company and to assist in locating records relating to ICM’s capital structure. Plaintiff disputes this and has presented sufficient documentary support to make dismissal at this stage improper. For example, an engagement letter dated July 12, 2016 from defendant H&K states clearly:

“Thank you for retaining Holland & Knight LLP (“H&K”) to represent you in connection
with the administration of your father’s estate. We will seek to have you appointed as the administrator of your father’s estate and, once you are appointed, advise you in that role. We look forward to serving your needs in this matter and to establishing a mutually satisfactory relationship.”

By clearly stating that H&K is representing “you” – in this case, plaintiff – the document can reasonably create the impression that H&K was first and foremost representing plaintiff’s interests. A subsequent retainer agreement dated July 25, 2016 furthers this impression: “Dear Andrew: Thank you for retaining Holland & Knight LLP to represent you individually as a defendant in connection with the above-referenced action …
As you know, we are also representing you in connection with the disputes involving your late father’s estate. However, we see no conflicts with respect to our representation of you in these 2 capacities.”

The clear statement that H&K was representing plaintiff and that no conflict existed with representing plaintiff in related litigation can also be reasonably interpreted as creating an attorney client relationship between H&K and plaintiff individually. In a subsequent filing dated October 28, 2016, H&K filed and signed a document representing “Andrew S. Kadah (“Andy”), individually as heir at law to decedent Hassan Bedri Kadah (“Decedent” or “Hassan”) and as Court appointed Administrator Ad Litem.” Finally, plaintiff points to a January 24, 2018 memo prepared by H&K which addresses “The validity of purported gifts Hassan Kadah made to his children in 1999 and 2001 of shares of International Controls & Measurements Corp.” and ultimately concludes that:
“Therefore, we recommend that our client, Andrew Kadah, and his similarly-situated
siblings, nieces, and nephews, not pursue this position any further, given that the legal
arguments supporting a valid gift of the 1999 and 2001 shares would almost certainly fail, and given that there is no meaningful financial advantage in pursuing this position.”

These documents create a question of fact as to whether H&K was representing plaintiff
individually and defendant’s arguments to the contrary are unpersuasive. Accordingly, defendant H&K’s request to dismiss based upon the absence of an attorney-client privilege with plaintiff individually is denied. Similarly, Defendant H&K’s assertions that the alleged malpractice fell outside of the expected role for defendant H&K has not been conclusively established at this time.”
by the documents or arguments presented.

Kohler v Polsky 2023 NY Slip Op 04373 Decided on August 23, 2023 Appellate Division, Second Department describes a familiar situation in which a construction worker, injured on the job, retains an attorney to file a Worker’s Compensation claim, and assumes that the attorney will also file a personal injury claim. Often, the WC attorney does not, and never had any intention of litigating a PI claim and never led the client to believe that the attorney was starting anything but the WC case.

“In 2009, the plaintiff James Kohler (hereinafter the plaintiff) injured his knee when he slipped and stepped into a hole while working on a tunnel construction project. The same month, upon his physician’s recommendation, the plaintiff met with the defendant Mark S. Polsky, an attorney with the defendant Polsky, Shouldice & Rosen, P.C., for a consultation to discuss his knee injury. At the consultation, the plaintiff signed an engagement letter which stated, inter alia, that he retained the defendants to represent him only in relation to a workers’ compensation claim, and not for any other claims arising from the accident. At his deposition, the plaintiff acknowledged that he understood the engagement letter, but he did not remember whether he read the engagement letter before he signed it or discussed the scope of the representation beyond that the defendants would file a workers’ compensation claim on behalf of the plaintiff and his wife. The defendants filed the workers’ compensation claim, which was ultimately resolved.

In 2014, the plaintiff, and his wife suing derivatively, commenced this action, alleging, inter alia, that the defendants committed legal malpractice by failing to inform the plaintiff that he had potentially meritorious personal injury claims against certain third parties, and that the plaintiff would have prevailed on such claims if the defendants had prosecuted them or advised the plaintiff to seek counsel to prosecute them before the deadline to serve a notice of claim had expired. The defendants moved for summary judgment dismissing the complaint, and the plaintiff and his wife cross-moved for summary judgment. The Supreme Court, inter alia, granted those branches of the motion which were for summary judgment dismissing the causes of action alleging legal malpractice and loss of consortium and denied those branches of the cross-motion which were for summary judgment on those causes of action. The plaintiff and his wife appeal.”

“Rule 1.2(c) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides, in relevant part, that “[a] lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances [and] the client gives informed consent.” “An attorney may not be held liable for failing to act outside the scope of the retainer” (Genesis Merchant Partners, L.P. v Gilbride, Tusa, Last & Spellane, LLC, 157 AD3d 479, 482; see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428).

Here, the defendants demonstrated, prima facie, that the acts that they allegedly failed to perform were beyond the scope of the engagement letter, which was prepared by the defendants and signed by the plaintiff (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d at 435; DeNatale v Santangelo, 65 AD3d 1006, 1007; Turner v Irving Finkelstein & Meirowitz, LLP, 61 AD3d 849, 850). In opposition, the plaintiff and his wife failed to raise a triable issue of fact (cf. Garcia v Polsky, Shouldice & Rosen, P.C., 161 AD3d 828, 830).

Accordingly, the Supreme Court properly granted those branches of the defendants’ motion which were for summary judgment dismissing the causes of action alleging legal malpractice and loss of consortium. The parties’ remaining contentions are academic in light of the foregoing.”

Tueme v Lezama 2023 NY Slip Op 03036 [217 AD3d 715] June 7, 2023
Appellate Division, Second Department touches on false arrest, malicious prosecution, negligent infliction of emotional distress and violation of Judiciary Law 487.

One of the claims against the attorneys was that the attorney gave false testimony in a criminal case against him. This was determined to be insufficient to invoke Judiciary Law 487,

“Further, the Supreme Court erred in denying those branches of the attorney defendants’ motion which were pursuant to CPLR 3211 (a) to dismiss the causes of action to recover damages for intentional infliction of emotional distress and violation of Judiciary Law § 487 insofar [*3]as asserted against them. With respect to the intentional infliction of emotional distress cause of action, the improper conduct alleged was not “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community” (Howell v New York Post Co., 81 NY2d 115, 122 [1993] [internal quotation marks omitted]; see Matthaus v Hadjedj, 148 AD3d 425, 425-426 [2017]; Zapata v Tufenkjian, 123 AD3d 814, 816 [2014]). With respect to the Judiciary Law § 487 cause of action, the plaintiff failed to allege with specificity any material misstatements of fact made by the attorney defendants in the divorce action with the intent to deceive that court (see Bill Birds, Inc. v Stein Law Firm, P.C., 35 NY3d 173, 178 [2020]; see also Looff v Lawton, 97 NY 478, 482 [1884]). Moreover, to the extent the plaintiff alleged that Navins gave false testimony as a witness in a criminal case against him, such an allegation cannot properly form the basis of a Judiciary Law § 487 cause of action (see generally Altman v DiPreta, 204 AD3d 965, 969 [2022]).”

Lam v Weiss 2023 NY Slip Op 04308 Decided on August 16, 2023 Appellate Division, Second Department is the story of what happens when an attorney takes on a case and lets it sit for a period of time. Taking place right around Labor Day, with a foreclosure auction scheduled in the next several days, the house was lost.

“On or about August 7, 2017, Hao Lam met with the defendant Ronald D. Weiss, an attorney and the principal of the defendant Ronald D. Weiss, P.C., a law firm, for the purpose of seeking legal advice to avoid losing the home. At the time of the meeting, the plaintiffs were allegedly unaware that a foreclosure auction was scheduled for September 5, 2017. Therefore, Hao Lam did not inform Weiss of the scheduled auction during their meeting, although he purportedly advised Weiss that the home was “under foreclosure.” After obtaining some information about the plaintiffs’ finances, Weiss allegedly recommended that Hao Lam pursue a mortgage modification agreement with the lender. Weiss also purportedly advised Hao Lam that he and his wife were [*2]”excellent candidates for Chapter 13 bankruptcy[,] which would allow [them] to keep their home and retain the equity [therein],” and that his firm could represent them in such a proceeding if efforts to secure a mortgage modification agreement from the lender did not bear fruit. Based on this recommendation, Hao Lam agreed to retain Weiss’s law firm for the purpose of pursuing a mortgage modification agreement, executing a retainer agreement several days later.

On August 31, 2017, Weiss sent the plaintiffs a solicitation letter concerning the upcoming foreclosure auction, the substance of which implied that it was a form document sent to prospective clients, even though the plaintiffs had already retained Weiss’s firm. The letter, inter alia, stated that the plaintiffs had multiple options available to them to avoid losing the home, including filing a bankruptcy petition. Upon receipt of the letter on September 1, 2017, Hao Lam, allegedly believing that Weiss was in the midst of working to save his home from foreclosure, contacted Weiss’s office and left a message. Receiving no response, he called again the next day and left another message. On September 5, 2017, the day of the auction, Hao Lam called a third time and eventually spoke to Weiss’s paralegal, who, among other things, indicated that Weiss was not available to meet for a few days. On September 8, 2017, Hao Lam met with Weiss at his office, allegedly learning for the first time that his home had been sold at the foreclosure auction three days earlier. Weiss purportedly apologized for his “mistake.” The plaintiffs were later forced to vacate their home.”

“Here, the Supreme Court erred in concluding that the plaintiffs failed to set forth facts demonstrating that the defendants breached any duty owed to them. The plaintiffs’ allegations, inter alia, that Weiss failed to ascertain the status of the foreclosure action before recommending a strategy, and that his proposed strategy of focusing on the pursuit of a mortgage modification was “futile” in light of the then upcoming foreclosure auction, were sufficient, if true, for a factfinder to determine that Weiss offered negligent advice (see Esposito v Noto, 132 AD3d 944, 945-946; Coccia v Liotti, 70 AD3d 747, 753; Terio v Spodek, 25 AD3d 781, 782-785). Moreover, the court improperly determined that the defendants could not be held liable pursuant to the attorney judgment rule, i.e., that Weiss’s mortgage modification focused strategy, as merely the “selection of one among several reasonable courses of action[,] does not constitute malpractice” (Silverman v Eccleston Law, LLC, 208 AD3d 705, 707 [internal quotation marks omitted]). The defendants improperly raised this issue for the first time in their reply affirmation, and there is no indication that the plaintiffs were afforded the opportunity to submit a surreply affirmation (see Ayers v Bloomberg, L.P., 203 AD3d 872, 875). In any event, the defendants failed to “offer a reasonable strategic explanation” for recommending pursuit of a mortgage modification agreement less than one month before the scheduled foreclosure auction as the means of avoiding loss of the plaintiffs’ home, as would have been required to establish a defense based upon the attorney judgment rule (Ackerman v Kesselman, 100 AD3d 577, 579 [internal quotation marks omitted]). Nor did the terms of the retainer agreement utterly refute the factual allegations of the amended complaint and conclusively establish a defense to the allegations of liability as a matter of law to warrant dismissal pursuant to CPLR 3211(a)(1) (see Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d at 715). The fact that the defendants’ scope of representation as defined in the retainer agreement was limited to the pursuit of a mortgage modification agreement did not, inter alia, absolve them from potential liability for allegedly offering negligent advice during the initial meeting with Hao Lam.”

Johnson v Watts 2023 NY Slip Op 32825(U) August 14, 2023 Supreme Court, Kings County Docket Number: Index No. 502133/2018 Judge: Peter P. Sweeney is a textbook example of a legal malpractice claim. Client severs her finger in a door accident and sues the municipal landlord. The attorney fails timely to file the notice of claim and then handles the 50-h hearings. The PI case is dismissed on notice grounds. Client sues the attorney.

“The plaintiff commenced this action against the defendant sounding in legal malpractice alleging that the defendant failed to preserve her claim for personal injuries against the New York City Housing Authority (“NYCHA”) by failing to serve it with a timely notice of claim. The plaintiff resides in an apartment located within a NYCHA facility and claims that when she was leaving her apartment to go to work on the June 14, 2012, the front door to the apartment slammed on her left hand and severed the tip of her middle finger. The plaintiff commenced an action against NYCHA claiming that it was negligent in failing to maintain the door in a reasonably safe condition

After the defendant commenced the action on plaintiff’s behalf, NYCHA moved to
dismiss the action due to plaintiff’s failure to timely file a notice of claim.1 The motion was granted. The defendant now seeks summary judgment dismissing this action claiming that the plaintiff cannot show that NYCHA’s negligence caused the accident.

In support of the motion, the defendant relies primarily on the testimony that the plaintiff gave at a 50H hearing concerning the accident and various NYCHA work records. At the 50H hearing, the plaintiff testified that on October 6, 2008, and on March 29, 2010, she had phoned the NYCHA rent office or management office to complain about her apartment door slamming too hard. The work records of NYCHA that were submitted on the motion, however, do not document these calls or any other calls regarding complaints about the door slamming too hard. The work records also reveal that on July 11, 2011, a NYCHA employee checked plaintiff’s front door and found it to be in satisfactory condition. The plaintiff signed off on the work order without making any written comment in the work order about any problem that she was having
with the door.”

“The only argument advanced by the defendant in support of the motion is that she would not have prevailed in the underlying action. To be awarded summary judgment, it was incumbent upon the defendant to submit admissible evidence demonstrating this fact as a matter of law. Here, plaintiff’s 50H testimony did not demonstrate, as a matter of law, that the door to her apartment was reasonably safe on the day of the accident, or that NYCHA lacked actual or constructive knowledge of the alleged defective condition. Indeed, plaintiff’s testimony documents that she made complaints about the door to NYCHA prior to the occurrence raising triable issues of fact as to whether had actual and/or constructive notice that the door was defective. It will be up to a jury to decide whether her testimony concerning her prior complaints are credible given the fact that they were not documented. Indeed, plaintiff’s 50H testimony did
not even demonstrate as a matter of law that NYCHA did not create the alleged dangerous condition.

Further, since the defendant did not submit an affidavit from a person with personal
knowledge that the work records he relies on constituted NYCHA’s business records, the records were inadmissible and may not be considered. Even if they considered, they do not establish, as a matter of law, that NYCHA’s freedom from liability.”

“Turning to the cross-motion, to prevail in an action to recover damages for legal
malpractice, not only must a plaintiff establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, the plaintiff must also establish that the attorney’s breach of that duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385). To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action, or would not have incurred any damages but for the attorney’s negligence (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; Davis v. Klein, 88 N.Y.2d 1008, 1009–1010, 648 N.Y.S.2d 871, 671 N.E.2d 1268; Lamanna v. Pearson
& Shapiro, 43 A.D.3d 1111, 843 N.Y.S.2d 143; Cohen v. Wallace & Minchenberg, 39 A.D.3d 691, 835 N.Y.S.2d 285). Here, there are triable issues of fact as to whether the plaintiff would have prevailed in the underlying action but for the defendant’s negligence. The cross-motion must therefore be denied.”