Walsam 316, LLC v Thompson & Knight LLP 2023 NY Slip Op 32693(U) August 2, 2023
Supreme Court, New York County Docket Number: Index No. 156653/2022 Judge: Dakota D. Ramseur provides a detailed analysis of the first two of three elements of legal malpractice: departure from good practice and the proximate cause result of that departure.

“By Decision and Order dated October 18, 2019, this Court granted the residential tenants summary judgment pursuant to their revised, HSTPA-inclusive damages calculation against 316 Bowery and Walsam. 2 (See NYSCEF index no. 158541/2013, doc. no. 705.) And on November 4, 2019, the Court entered judgment against these defendants,jointly and severally, for $2,081,539.92 (exclusive of attorneys’ fees). After, counsel for Walsam ultimately recommended they settle the matter with the tenants and 316 Bowery, which they did. According to the parties’ settlement agreement, 316 Bowery paid $1,600,000 and Walsam paid $700,000.
On April 2, 2020, approximately two months after Walsam paid the residential tenants,
the Court of Appeals, in Matter of Regina Metro. Co., LLC v New York State Div. of Haus. & Community Renewal (35 NY3d 332, 375 [2020]), reversed Dugan and the line of cases in the First Department that had found HSTPA’ s retroactivity provision constitutional. The Court of Appeals specifically considered how the retroactive provision extended the statute of limitations for treble damages in pending cases and found that the law impermissibly altered the substantive rights by “expand[ing] the scope of owner liability … based on conduct that was inoculated by the old law”. (Id. at 367, 368.) Given the Court of Appeals’ holding, Walsam alleges that, had they not entered into the settle agreement, they might have paid substantially less than the $700,000 they did since the tenants’ damages calculation, as originally submitted to the Court, would not have exceeded approximately $1,010,061.00.”

“Defendants rely on Darby & Darby, P. C. v VSI Int ‘l, Inc (95 NY2d 308 [2000]) and
Mignott v Kreidman (65 AD3d 972 [1st Dept 2009]) to argue that there is no duty to “anticipate that controlling law would be overturned.” (See NYSCEF doc. no. 9 at 17-18, def. memo. of law.) Yet this framing-that Walsam seeks to hold them liable for failing to predict the outcome of Regina-is misleading and does not accurately describe the gravamen of the complaint. Again, Walsam’s allegation is that defendants had a legal duty to advised them that the Court of Appeals was, at the very least, considering the merits of the Regina (and doing so within a short timeframe ), or viewed in a more favorable light, had already indicated a willingness to overturn First Department law. The present circumstances, specifically the concrete possibility of an imminent change in law, are materially different from those in Darby (in which the attorney failed to advise the client of a novel theory of recovery, one that even industry experts had not
fully appreciated) (Darby, 95 NY2d at 313-314), and Mignott (in which the Appellate Division reversed and abrogated its own decision 8 years later) (Mignott, 7 Misc. 3d 1021 [A] at *1, ajf’d 65 AD3d 972).

As to defendants’ second argument, the Court holds that Walsam has not sufficiently pled that it suffered ascertainable damages proximately caused by defendants’ malpractice. Walsam states that “the negligence of defendants was a proximate cause of plaintiff’s damages,” which “include[e] the moneys paid by [Walsam] to settle the overcharge claim, the legal fees paid to defendants, and the legal fees incurred by plaintiffs in continuing litigation concerning rent overcharges.” (NYSCEF doc. no 4 at ,i 101, 103.) Though Walsam does not explicitly state how their damages were cause by defendants’ alleged malpractice, they appear to argue that, had defendants advised that the Court of Appeals was considering Regina, it would not have entered into the settlement agreement for $700,000 and, post-Regina, would have paid less to the residential tenants. (See NYSCEF doc. no. 36 at 23 [“The settlement decision, whether to accept the $2.3 [inclusive of 316 Bowery] lies with the client; the attorney’s duty is to make the client fully aware of the options and the legal landscape.”])4

Yet such speculation on future events and choices are insufficient as a matter of law to
establish the proximate cause element of a malpractice action. (See Phillips-Smith Special Retail Group IL L.P. v Parker Chapin Flattau & Klimpl, L.L.P, 265 AD2d 208,210 [1st Dept 1999].) As defendants point out, irrespective of Regina, Justice Chan had already found 316 Bowery and Walsam liable,jointly and severally, to the residential tenants, who were seeking $1,010,061.60, exclusive of attorneys’ fees. As such, had Walsam become aware of Regina before settling, the universe of choices open to Walsam was still limited. They could have: (1) reached the same settlement agreement (paying $700,000 to avoid a $2.3 million judgment); (2) waited until the Court of Appeals decided Regina (though at no point would it have been certain of a favorable outcome, all the while remaining exposed to the $2.3 million liability; and then, even after the
outcome, still been jointly and severally liable for more than $700,000); or (3) attempted to leverage Regina to settle for less than $700,000 (which would have required 316 Bowery and/or the tenants to accept a less beneficial agreement). Even assuming option (3) to be a non-starter, there is no clear reason why Walsam would have chosen option (2) over (1), especially considering that Walsam has only by implication argued that it was damaged in this manner. The counterfactual scenario described above reveals that Walsam’s allegations as to proximate cause are couched in terms of gross speculation. (See Sherwood Group, Inc. v Dornbush, Mensch, Mandelstam, & Silverman, 191 AD2d 292,294 [1st Dept 1993] [finding that a party’s hypothetical, future conduct, pled in various forms of what “might have” happened, too speculative to demonstrate proximate causation].)”

Casey v Exum 2023 NY Slip Op 04106 Decided on August 2, 2023 Appellate Division, Second Department illustrates the difficult standard in matrimonial legal malpractice cases where the underlying matrimonial was settled. Without relying on the Katebii line of settlement case law, summary judgment was nevertheless granted because it was practically impossible to prove that there would have been a better outcome at trial v. settlement.

“In November 2015, the plaintiff commenced this action against the defendant, her former attorney, to recover damages for legal malpractice and breach of contract arising out of the defendant’s representation of her in a matrimonial action against her former spouse. The plaintiff alleged, inter alia, that, due to the defendant’s malpractice, she agreed to a settlement of the matrimonial action less favorable than that she would have received as a marital distribution after a trial. The defendant moved for summary judgment dismissing the complaint. In an order dated June 2, 2020, the Supreme Court granted the defendant’s motion. The plaintiff appeals. We affirm, albeit on a ground different than that relied upon by the court (see Green v Conciatori, 26 AD3d 410, 410).”

“Here, the defendant established, prima facie, that he was not a proximate cause of the plaintiff’s alleged damages (see Richmond Holdings, LLC v David S. Frankel, P.C., 150 AD3d 1168, 1168; Montero v Cohen, 104 AD3d 654, 655). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s claims that the defendant could have negotiated a more favorable settlement, that her former spouse would have accepted a settlement offer that was more favorable to her, or that she would have received a more favorable outcome at trial had she declined to enter into the settlement are conclusory and speculative (see Katsoris v Bodnar & Milone, LLP, 186 AD3d 1504, 1506; Janker v Silver, Forrester & Lesser, P.C., 135 AD3d 908, 910).”

Maursky v Latham 2023 NY Slip Op 04115 Decided on August 2, 2023 Appellate Division, Second Department seems to be a fair decision, yet doesn’t really say why the court reversed the grant of dismissal. Even in a setting where the attorney admits failing timely to commence the action, the question of “but for” causation has to be addressed by Plaintiff.

“The defendants, a law firm and an attorney, represented the plaintiff in connection with a disability insurance claim. The plaintiff’s disability insurance policy provided, in relevant part, that “[n]o action or suit will be brought to recover under the [policy] . . . unless it is brought within 2 years.” In her complaint, the plaintiff alleged that, “after waiting a number of years and having little communication,” the defendant Christopher D. Latham informed the plaintiff “that he had failed to sue at the appropriate time” and “had missed a crucial deadline necessary in order to maintain the suit.” The plaintiff further alleged that, “[h]ad it not been for the negligence of [the] defendant[s] in failing to meet the statutory deadline, [the] plaintiff would have prevailed in the underlying matter, being able to recover on her disability insurance claim.”

In February 2020, the plaintiff commenced this legal malpractice action. The defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint, submitting the plaintiff’s summons and complaint, the plaintiff’s disability insurance policy, and the insurer’s denial letter dated December 31, 2016 (hereinafter the coverage denial letter). In opposition, the plaintiff submitted, among other things, an affidavit stating, inter alia, that a 2014 motor vehicle accident rendered her “disabled and unable to work,” that she retained the defendants in 2015 to appeal her insurer’s initial denial of disability insurance coverage, that she contacted the defendants multiple times “to discuss the status of [her] case,” and that Latham “assured [her] that he was handling the case effectively” until, in August 2019, Latham allegedly informed the plaintiff that he had “missed the statute of limitations.”

In an order dated June 17, 2020, the Supreme Court granted the defendants’ motion. The plaintiff appeals.”

“Here, the coverage denial letter from the plaintiff’s insurer did not constitute documentary evidence within the intendment of CPLR 3211(a)(1) (see Bonavita v Government Empls. Ins. Co., 185 AD3d 892, 893-894; Minchala v 829 Jefferson, LLC, 177 AD3d 866, 868; cf. Attallah v Milbank, Tweed, Hadley & McCloy, LLP, 168 AD3d 1026, 1028). In any event, the coverage denial letter and the plaintiff’s insurance policy did not utterly refute or conclusively establish a defense to the plaintiff’s claims (see Gruber v Donaldsons, Inc., 201 AD3d 887, 889; County of Westchester v Unity Mech. Corp., 165 AD3d 883, 885; cf. Hirsch v Walder, 201 AD3d 467, 467; Warshaw Burstein Cohen Schlesinger & Kuh, LLP v Longmire, 106 AD3d 536, 537). Moreover, to the extent that the complaint was vague as to the nature of the allegations of legal malpractice and otherwise deficient, the evidence submitted, including the plaintiff’s affidavit, sufficiently remedied any pleading defects and put the defendants on notice of the grounds for her [*2]cause of action alleging legal malpractice (see Lopez v Lozner & Mastropietro, P.C., 166 AD3d at 873; Harris v Barbera, 96 AD3d 904, 906; cf. Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1506).”

Matter of Blatt 2023 NY Slip Op 04120 Decided on August 2, 2023 Appellate Division, Second Department Per Curiam is both a common and unusual attorney story. It is common in that attorneys are often disbarred (or suspended) for financial wrongs, very often escrow issues where the “escrowed” monies are used by the attorney. It’s a disbarment event, but not that unusual. Independently, this is the attorney in the relatively famous Judiciary Law 487 case line.

What is unusual is that there was a (very uncommon) legal malpractice trial and verdict against the attorneys. This verdict was in 2019. Many years go by without any legal malpractice verdicts (bench or jury) at all.

“The Grievance Committee for the Ninth Judicial District served the respondent with a notice of petition dated July 22, 2020, and a verified petition dated July 16, 2020, containing 12 charges of professional misconduct, and the respondent served and filed a verified answer dated July 28, 2020. Subsequently, the Grievance Committee served and filed a statement of disputed and undisputed facts dated August 17, 2020, which the respondent did not challenge. By decision and order on motion of this Court dated June 2, 2021, the respondent was immediately suspended from the practice of law in the State of New York, pursuant to 22 NYCRR 1240.9(a)(2) and (5), and the matter was referred to the Honorable Sondra M. Miller, as Special Referee, to hear and report. A pre-hearing conference was held on July 21, 2021, and a hearing was conducted on October 19, 2021. The Special Referee filed a report dated December 20, 2021, in which she concluded that the respondent was guilty of serious misconduct and sustained the charges against the respondent. The Grievance Committee now moves to confirm the Special Referee’s report and impose such discipline upon the respondent as the Court deems just and proper. The respondent has not submitted any papers in response nor sought additional time to respond.”

“

Betz commenced an action against the respondent, and multiple successor attorneys who served the executor and/or the estate, in the Supreme Court, Westchester County, entitled Debra Betz, Administrator of the Estate of Carmelo Carbone (a/k/a Mel Carbone ) v Arnold Blatt, et al. , Index No. 58938/2011, asserting causes of action to recover damages for legal malpractice, aiding and abetting fraud, and violations of Judiciary Law § 487. Only the respondent proceeded to trial.

After a nonjury trial, in a decision and order dated April 29, 2019, the Honorable Gerald E. Loehr found, inter alia, that the respondent: (a) failed to use a written retainer agreement with the executor; (b) negligently failed to carry out his obligations as spelled out in demand letters [*3]sent to him from the beneficiaries’ counsel; (c) failed to counsel or control the executor with respect to the dissolution of CRF, Inc., thereby allowing the executor to continue to operate the corporation and generate fictitious bills and incur additional operating costs, without any oversight, solely for the executor’s benefit and the compensation of the executor’s own children; (d) negligently failed to ensure that the proceeds of the estate’s sale of its real properties were segregated into a separate estate account, despite a request by the beneficiaries that he do so, thereby enabling the executor to appropriate those monies for the executor’s own purposes; (e) overlooked the executor’s actions, even though he knew that the executor had not been properly marshaling the estate’s assets or preserving them for distribution to the beneficiaries, as well as that the executor was continuing to operate CRF, Inc., for the benefit of himself and his own children, who were being paid for fictitious services out of estate funds; (f) failed to exercise the degree of skill required of an attorney advising the estate when the executor’s own daughter was hired to perform an accounting for the estate, even though the respondent recognized that the accounting she performed “was terrible” on its face; (g) failed to properly assist in the administration of the estate and oversee the executor’s actions, thereby facilitating the executor’s self-dealing, waste, and substantial depletion of the estate; and (h) allowed the case to evolve beyond his ability to handle it on his own, without calling in a competent attorney to assist him, or moving to withdraw from the representation, while continuing to hold himself out as the estate’s attorney and to make checks payable to the executor, even though the respondent knew the executor was engaging in self-dealing. Justice Loehr also found: (i) that even after the executor’s powers were suspended, the respondent continued to assist the suspended executor and his son with preparing and filing approximately $1,137,500 in liens against certain properties to insulate them from recovery by the estate; (j) that the respondent allowed approximately $1,500,000 in proceeds from the sale of the Farm to be wired to the account of CRF, Inc., rather than depositing these proceeds into an estate account; (k) that all the foregoing was exacerbated, aided, and abetted by the respondent’s failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (l) that the respondent’s breach of these duties was the proximate cause of the plaintiff’s damages.

Justice Loehr concluded that the respondent negligently performed his duties and breached his fiduciary duty to the estate and the beneficiaries resulting in financial damages by the depletion of the estate’s assets, tax penalties for late filing, and an increase in attorney fees charged to the estate.”

Last week we looked at Kasmin v Josephs 2023 NY Slip Op 32468(U) July 19, 2023
Supreme Court, New York County Docket Number: Index No. 152213/2020
Judge: Nancy M. Bannon for its decision on legal malpractice. The case also dismissed Judiciary Law 487 claims.

“The fourth cause of action for violation of Judiciary Law § 487 is also dismissed. Relief
under this statute “is not lightly given” (Chowaiki & Co. Fine Art, supra), and requires a
showing of “egregious conduct or a chronic and extreme pattern of behavior on the part of the defendant attorneys” that caused damages (Savitt v Greenberg Traurig, LLP, 126 AD3d 506, 507 [1st Dept. 2015]). “Allegations regarding an act of deceit or intent to deceive must be stated with particularity,” and “the claim will be dismissed if the allegations as to scienter are conclusory and factually insufficient.” Facebook, Inc. v DLA Piper LLP (US), 134 AD3d 610, 615 (1st Dept. 2015) (internal citation omitted).

Plaintiff fails to allege that defendant acted “with intent to deceive the court or any party” (Judiciary Law§ 487[1]), and her allegation that defendant “willfully engaged in self-serving dilatory tactics … designed to impede timely resolution of [the] matrimonial action with a view to [defendant’s] own gain,” is a bare legal conclusion that “is not entitled to the presumption of truth normally afforded the allegations of a complaint” (Fleyshman v Suckle & Schlesinger, PLLC, 91 AD3d 591, 593 [2d Dept. 2012]). Nor does plaintiff proffer evidence to bear out her claim. The only evidence plaintiff cites are portions of various decisions from the underlying matrimonial action admonishing defendant for filing excessive, repetitive, and unmeritorious motions. None of these decisions, though, found that defendant willfully engaged in such conduct with a view to her own gain. Nor does plaintiff point to any other evidence in the record
that tends to show such willful conduct.

To the contrary, the evidence presented tends to show that defendant zealously-perhaps over-zealously-represented plaintiff’s interests in the underlying litigation. Plaintiff testified at her deposition that she was pleased with the settlement obtained for her by defendant, had praised defendant’s efforts on her behalf, and had referred some of her friends to defendant. Plaintiff further testified that she reviewed, and did not dispute, defendant’s invoices throughout the underlying litigation; that defendant kept her apprised of the litigation, explained the strategy followed, and informed her of all motions filed on her behalf. Plaintiff further testified that she believed her ex-husband had attempted to conceal certain assets during discovery in the underlying litigation, that she wanted defendant to uncover those assets, and that defendant’s
efforts in that regard were necessary and not a waste of time. Plaintiff likewise conceded that the various motions made by defendant on her behalf were necessary and generally meritorious, notwithstanding that they were ultimately denied, including the motions and appeals filed to enforce the 2014 Settlement, which plaintiff believed to be “correct.” And, in stark contrast to the allegation that defendant’s aim was to squeeze plaintiff for excessive fees, plaintiff testified that it was defendant who, unprompted, initiated the proposal to discount her fees.”

Kasmin v Josephs 2023 NY Slip Op 32468(U) July 19, 2023 Supreme Court, New York County Docket Number: Index No. 152213/2020 Judge: Nancy M. Bannon is yet another case in the Katebi v. Fink line of cases which hold that when the client allocates to a matrimonial settlement in open court, and answers the question “are you satisfied with your attorneys services” in the positive, a legal malpractice case thereafter is doomed.

“The third cause of action, for legal malpractice, must also be dismissed. A claim for legal malpractice requires proof that defendant failed to exercise the degree of care, skill, and diligence commonly possessed and exercised by an ordinary member of the legal community; that such negligence was the proximate cause of the actual damages sustained by plaintiff; and that, but for defendant’s negligence, plaintiff would have been successful in the underlying action. Cummings v Donovan, 36 AD3d 648 (2d Dept. 2007).
Plaintiff outlines a litany of defendant’s alleged acts and omissions that she contends fell far below the level of skill and knowledge reasonably expected from an ordinary member of the legal community. Plaintiff claims, in essence, that defendant engaged in frivolous motion practice and delay tactics to generate sizable legal fees; improperly retained third parties to perform unnecessary and harmful services; failed to secure continued spousal maintenance payments to her from Paul Kasmin’ s estate; failed to advise plaintiff to obtain an appropriate financial instrument to protect her right to spousal maintenance; failed to protect plaintiffs assets from depletion by legal fees incurred in the matrimonial action; and improperly waived plaintiffs right to recover certain fees. Plaintiff asserts that, but for these alleged acts and omissions, she would have recovered more from Mr. Kasmin than she did in the underlying matrimonial action.

To be sure, a legal malpractice claim is viable, despite settlement of the underlying
action, if it is alleged that the settlement of the action was effectively compelled by the mistakes of counsel. Bernstein v Oppenheim & Co., 160 AD2d 428,430 (1st Dept. 1990). Here, however, the evidence demonstrates that plaintiff knowingly and voluntarily settled the matrimonial action after lengthy negotiations. In particular, during her allocution in connection with the 2014 Settlement, which resolved the underlying litigation with respect to spousal maintenance, plaintiff acknowledged that “the terms of the stipulation had been discussed and negotiated over a period of time”; she understood the terms of the settlement in their entirety; she believed the settlement was “fair and reasonable”; and she was satisfied with the services of her attorney. This evidence clearly contradicts plaintiffs claim. See Katebi v Fink, 51 AD3d 424, 425 (1st Dept. 2008) (affirming dismissal of legal malpractice claim based on plaintiffs allocution testimony that she knowingly and willingly entered into the settlement of the underlying matrimonial action and was satisfied with her attorney’s services).”

In a 5 year old case, a default judgment was granted and upheld on a motion to reargue/renew. Walker v Simmsparris 2023 NY Slip Op 32491(U) July 7, 2023
Supreme Court, Kings County Docket Number: Index No. 506589/2018 Judge: Richard J. Montelione seems to be a case where the attorneys do not have insurance coverage nor insurance defense, and appeal to be pro-se.

“This is an action, inter alia, for legal malpractice regarding the alleged failure of
defendants Michele Simmsparris and Kwesi Simmsparris (“moving defendants” or “defendants”) to answer a complaint on behalf of the plaintiff in an unrelated matter and to take other actions to , protect the interest of the plaintiff which was commenced by filing the summons and complaint on April 2, 2018. The Plaintiff previously moved for default judgment against defendants, Michele Simmsparris and Kwesi Simmsparris, by motion filed on June 25, 2018, but this motion was held in abeyance pending the determination of the traverse hearing. The court referred the issue of proper service to a Referee for a traverse hearing by order dated December 6, 2018 regarding defendants Michele Simmsparris and K wesi Simmsparris. The Referee by decision
dated July 9, 2019 recommended that the traverse be overruled as proper service was effectuated upon the defendants Michele Simmsparris and Kwesi Simmsparris. The Notice of Entry of the Referee’s decision was served by “Notice of Entry” on July 16, 2019 (the Referee’s Report is not a court order and therefore a Notice of Entry was unnecessary).”

“All other issues have all been addressed in the court’s prior order. Defendants now move to vacate their default under CPLR 317 and extend their time to answer under CPLR 2004. However, defendants fail to inform the court as to when they received notice of the summons and complaint which would show that they did not have adequate time in which to defend the action and this failure is fatal to their application to vacate their judgment under CPLR 317. See 259 Milford, LLC v FV-1, Inc., 211 AD3d 658,661, 179 NYS3d 707, 710, 2022 NY Slip Op 06898, 2, 2022 WL 17480676 [2d Dept 2022]:”

In Thacker v Constantine Cannon, LLP 2023 NY Slip Op 32376(U) July 14, 2023
Supreme Court, New York County Docket Number: Index No. 155930/2018
Judge: James d’Auguste it is too early for the court to decide who did what.

Plaintiff was locked out in a landlord-tenant dispute. She hired third-party defendants and then hired defendants, and all together it is not yet determined who did what. What is clear is that third-party defendants now represent plaintiff against defendants.

” In December 2014, plaintiff retained third-party defendants to represent her in an illegal eviction action against her former landlord. In January 2015, Constantine Cannon began representing plaintiff pro bona through the Volunteer Lawyer for the Arts program with third party defendants Jarvis and Maher serving as “legal consultants.” Specifically, Constantine Cannon’s retainer agreement with plaintiff states “[Constantine Cannon] agrees to retain Ms. Jarvis and Mr. Maher as legal consultants for the purpose of advising it in this matter, and to share any attorney’s fees with them per the terms of this agreement.” (Ex. C to Third-Party Summons and Complaint, NYSCEF Doc. No. 203). As a result, plaintiff allegedly terminated her previous retainer agreement with third-party defendants.

Constantine Cannon apparently failed to properly serve plaintiff’s former landlord, and,
following a Traverse Hearing on August 11, 2015, the court dismissed plaintiff’s action.
Plaintiff appealed, and the Second Department affirmed dismissal of the underlying action. On June 25, 2018, plaintiff (who is represented in the current action by third-party defendants) commenced a legal malpractice and breach of contract action against Constantine Cannon for failure to effect proper service of the summons and complaint in the illegal eviction action. On February 9, 2022, Constantine Cannon filed a third-party summons and complaint, alleging common law indemnification and contribution against third-party defendants in the underlying legal malpractice action. Constantine Cannon alleges that Jarvis and Maher were substantially involved in the representation for the illegal eviction action, including providing address information for the former landlord and directing motion/appellate strategy, therefore, Constantine Cannon is entitled to seek indemnification and contribution against them. Notably, there is no dispute that Jarvis and Maher were communicating with Constantine Cannon about
plaintiff’s illegal eviction action. Instead, they argue that their involvement was limited, and, therefore, their participation would not expose them to liability for contribution or
indemnification. “[I]t is well-settled that an attorney sued for malpractice may bring a third-party complaint seeking indemnity or contribution against an attorney, whether retained subsequently, concurrently, or independently, whose negligence has contributed to or aggravated the plaintiffs damages” Bolton v Weil, Gotshal & Manges LLP, 9 Misc 3d 1105(A) [Sup Ct 2005] (internal citations omitted). Moreover, “First Department held that allegations in a third-party complaint that ‘third-party defendant attorneys directed the legal handling of matters in which third-party plaintiff law firm represented defendants, and, accordingly, shared responsibility for any loss defendants may have incurred in those matters by reason of legal malpractice, sufficiently stated
a cause of action for contribution”‘ id. at 3, (citing Patterson, Belknap, Webb & Tyler LLP v Bond St. Assoc., Ltd., 266 AD2d 125, 125 [1st Dept 1999]; see also Schauer v Joyce, 54 NY2d 1, 6 [1981] [holding that allegation that another attorney “contributed to or aggravated [plaintiffs] injuries” sufficiently stated contribution claim]. As discussed in a previous order of this Court (Ling-Cohan, J.) dated October 7, 2019, third-party defendants’ status during this representation is unclear; the parties have not performed sufficient factual development to determine if Maher and Jarvis assisted Constantine Cannon as “co-counsel, … legal consultant[s], or out of professional courtesy.” (Decision and Order, NYSCEF Doc. No. 70). 1 Third-party defendants have not shown that, even if they served as legal consultants or merely out of professional courtesy, Constantine Cannon could not seek indemnification and contribution against them in a legal malpractice action. Discovery is ongoing, and third-party defendants have not sufficiently demonstrated that they are free from negligence to warrant
dismissal of the two causes of action at this juncture.”