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.”

Five Towns Pediatrics, P.C. v Billet, Feit & Preis, P.C. 2023 NY Slip Op 32328(U) July 12, 2023 Supreme Court, New York County Docket Number: Index No. 157252/2018
Judge: Andrea Masley is the story of a limited retainer agreement often used by accounting firms. Here, the retainer agreement stated “the scope of
the engagement: prepare tax returns and compilations.” Claims outside of that scope were dismissed.

“This motion is granted, in part. Plaintiff and MWE entered into four engagement
letters in September 2015, January 2016, September 2016, and April 2017. (NYSCEF
102-104, Engagement Letters.) The engagement letters clearly document the scope of
the engagement: prepare tax returns and compilations. (Id.) There is no ambiguity and
plaintiff cannot create one. ( Universal Am. Corp. v National Union Fire Ins. Co. of
Pittsburgh, PA., 25 NY3d 675, 680 [2015] [citation omitted] [“[P]arties cannot create
ambiguity from whole cloth where none exists, because provisions ‘are not ambiguous
merely because the parties interpret them differently.”‘].)

Plaintiff’s attempt to expand the services to be provided based on its “know your
client” theory is barred by the parol evidence rule. “Parol evidence-evidence outside
the four corners of the document-is admissible only if a court finds an ambiguity in the
contract. As a general rule, extrinsic evidence is inadmissible to alter or add a provision
to a written agreement.” (Schron v Troutman Sanders LLP, 20 NY3d 430, 436 [2013];
see also W.W. W. Assocs. v Giancontieri, 77 NY2d 157, 163 [1990] [ citation omitted] [” It
is well settled that ‘extrinsic and parol evidence is not admissible to create an ambiguity
in a written agreement which is complete and clear and unambiguous upon its face.”‘].)
Here, the engagement letters are unambiguous.

MWE was not engaged to perform an audit or forensic accounting or any other
services to determine why plaintiff’s owners were not taking home more money as
plaintiff suggests. The engagement letters make clear that, in providing tax preparation

services, MWE would rely on the documents provided by the plaintiff and would not
audit or verify accuracy of these documents. ( See NYSCEF 101, 103, 104, September
2015 and 2016 and April 2017 Engagement Letters [“As part of our compilation
engagement, we will issue a report that will state that we did not audit or review the
financial statements nor were we required to perform any procedures to verify the
accuracy or completeness of the information provided by management and accordingly, we do not express an opinion, a conclusion, nor provide any assurance on them”]; NYSCEF 102, January 2016 Engagement Letter [“We will not audit or independently verify the data you submit”].) “[A]n accountant and client may contractually agree that the accountant is not to perform certain services, thereby absolving the accountant of liability for not performing them.” (Channel Fabrics, Inc. v Skwiersky, Alpert & Bressler LLP, 2022 NY Misc LEXIS 8980, *4 [Sup Ct, NY County 2022] [citation omitted].)

Further, the court will not permit plaintiff to expand the scope of the engagement
letters based on MWE’s initial proposal when it was pitching its services. (See NYSCEF
100, Proposal.) The engagement letters constitute the parties’ agreement not the initial
proposal. Plaintiff’s belief that MWE was providing consulting and investigatory services
as to why the doctors were not making more money does not make it so and certainly
plaintiff’s belief does not alter the parties’ agreement. While MWE may have been
plaintiff’s company accountant, per the terms of the agreements, it did not agree to be
an auditor or investigator.”

126 Main St., LLC v Kriegsman 2023 NY Slip Op 03758 Decided on July 12, 2023
Appellate Division, Second Department is a case where the Appellate Division took a look at the same materials presented to Supreme Court and simply reached a contrary view that the evidence of lost profits, alleged in the complaint and defended on a CPLR 3211 motion was simply not enough.

“ORDERED that the order is reversed, on the law, with costs, and the defendants’ motion pursuant to CPLR 3211(a) to dismiss the complaint is granted.

In March 2018, the plaintiff commenced this action to recover damages for legal malpractice arising out of the defendants’ prior legal representation of it in connection with a purchase agreement of the plaintiff’s restaurant business. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint on the ground, inter alia, that the complaint failed to state a cause of action. The plaintiff opposed the motion. In an order dated May 13, 2020, the Supreme Court denied the defendants’ motion. The defendants appeal.”

“”‘Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative'” (Denisco v Uysal, 195 AD3d 989, 991, quoting Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 848; see York v Frank, 209 AD3d 804, 807). Here, the plaintiff failed to state a cause of action to recover damages for legal malpractice because the plaintiff’s allegation that the restaurant would have had increased profits but for the defendants’ alleged malpractice is [*2]conclusory and speculative (see York v Frank, 209 AD3d at 807; Denisco v Uysal, 195 AD3d at 991).”

All the non-tax liability claims in Treanor v Dimopoulos 2023 NY Slip Op 32260(U)
July 5, 2023 Supreme Court, New York County Docket Number: Index No. 159106/2022
Judge: Mary V. Rosado are dismissed. Claims that advice on how to pay certain awards caused unnecessary tax liability survive.

“Plaintiff alleges that Defendants did not disclose to Plaintiff their “intimate relationship” with Dr. Abrams or purported allegiance to him (id. at 126). Plaintiff alleges that she met with Dr. Abrams four times and that he asked inappropriate questions about sexual acts3 (id. at 1, 27-29). “On or about October 2018 (sic)” Dr. Abrams issued a report where he concluded that both parents had loving relationship with their children, and that access should be equal, and that the current schedule should remain in place (id. at~ 33). Despite this outcome, Plaintiff alleges Dr. Abrams “punished” her in the report due to Plaintiffs objection to Dr. Abrams’ “sexual inquiries” by stating that Plaintiff “was not as intelligent as Adam, and that Adam provided a little more for the
children’s needs than Plaintiff’ (id. at, 34).

Plaintiff alleges that on December 20, 2018, the matrimonial court issued an order deeming her the monied spouse based on imputed income and its failure to impute income to Adam, resulting in Plaintiffs obligations to pay child support and amounts to maintain the marital residence (id. at, 35).”

“The breach of contract and breach of fiduciary duty claims are dismissed as duplicative of the legal malpractice cause of action. As to the breach of contract cause of action, the case of Walter v Castrataro is instructive (94 AD3d 872 [2d Dept 2012]). In that case, the Second Department found that a plaintiffs breach of contract claim who alleged that her former attorney failed to file an application for pendente lite support, failed to move to vacate a forensic report, and failed to modify a stipulation was nothing more than a rephrasing of a legal malpractice claim The breach of contract and breach of fiduciary duty claims are dismissed as duplicative of the legal malpractice cause of action. As to the breach of contract cause of action, the case of Walter v Castrataro is instructive (94 AD3d 872 [2d Dept 2012]). In that case, the Second Department found that a plaintiffs breach of contract claim who alleged that her former attorney failed to file an application for pendente lite support, failed to move to vacate a forensic report,
and failed to modify a stipulation was nothing more than a rephrasing of a legal malpractice claim (id. at 873). Moreover, there are no allegations related to breaching a promise to acehive a specific result, but only allegations about breaches of vague and non-specific (and somewhat boilerplate) provisions of the retainer agreement (see Mamoon v Dot Net Inc., 135 AD3d 656 [1st Dept 2016] citing Sage Realty Corp. v Proskauer Rose, 251 AD2d 3 5, 3 9 [1st Dept 1998] [ dismissing breach of contract claim as duplicative of legal malpractice claim where there were no allegations about a breach of a promise to achieve a specific result]; see also Alphas v Smith, 147 AD3d 557 [1st Dept 2017]). Thus, the breach of contract cause of action is dismissed.”

” Finally, there is no actionable malpractice from Defendants’ motion seeking to withdraw as counsel due to their fundamental disagreements with Plaintiff over the strategy to move forward in the underlying matrimonial action. Indeed, the Rules of Professional conduct explicitly states that a lawyer may withdraw from representing a client if the client “insists upon taking action with which the lawyer has a fundamental disagreement” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.16[ c] [ 4]) or if the client “renders the representation unreasonably difficult for the lawyer to carry out employment effectively” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.16[ c] [7]).

However, Plaintiff’s allegation that the Defendants “provided improper advice as to the payment of certain amounts required under the pendente lite order, which caused Ms. Treanor to incur substantial tax liability” survives (see NYSCEF Doc. 4 at , 124). Accepting the factual allegations as true, as this Court must on a pre-answer motion to dismiss, failure to advise a client on the tax consequences of withdrawing money from retirement accounts in a divorce action states a claim for legal malpractice for purposes of a pre-answer motion to dismiss (Fielding v Kupferman, 65 AD3d 437 [1st Dept 2009]).”

Cavounis v Azour 2023 NY Slip Op 03676 Decided on July 5, 2023 Appellate Division, Second Department is a rope-a-dope example of non-compliance in discovery being permitted, several times. Defendant attorney made demands which were irrelevant to the case and was thrice turned down, the ultimate denial being on appeal.

“

On August 29, 2014, the plaintiff commenced this action against Yousef Azour, Crown Plaza Ltd., A2Z Development Corp., Azour, LLC (hereinafter collectively the Azour defendants), and Ronen Shiponi. He asserted causes of action sounding in, inter alia, breach of contract, conversion, unjust enrichment, and breach of fiduciary duty against the Azour defendants, and sounding in legal malpractice and breach of fiduciary duty against Shiponi.

Shiponi served upon the plaintiff a notice for discovery and inspection dated June 4, 2018. The plaintiff did not respond, and Shiponi moved, inter alia, pursuant to CPLR 3124 to compel the plaintiff to respond. By order entered March 20, 2019, the Supreme Court, among other things, denied that branch of the motion, determining, inter alia, that the evidence sought was outside the scope of the litigation.

After the plaintiff appeared for an examination before trial, Shiponi served a notice for discovery and inspection dated December 19, 2019. The plaintiff failed to respond, and Shiponi moved, inter alia, pursuant to CPLR 3124 to compel the plaintiff to respond to the notice for discovery and inspection dated December 19, 2019. By order dated September 8, 2020, the Supreme Court, among other things, denied that branch of the motion, once again determining that the evidence sought was outside the scope of the litigation. Shiponi appeals, and we affirm.

CPLR 3101(a) provides that “[t]here shall be full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” “The supervision of discovery, and the setting of reasonable terms and conditions for disclosure, are within the sound discretion of the Supreme Court. The Supreme Court’s discretion is broad because it is familiar with the action before it, and its exercise should not be disturbed on appeal unless it was improvidently exercised” (Provident Life & Cas. Ins. Co. v Brittenham, 284 AD2d 518, 518). “A [*2]motion to compel responses to demands and interrogatories is properly denied where the demands and interrogatories seek information which is irrelevant, overly broad, or burdensome” (Bennett v State Farm Fire & Cas. Co., 189 AD3d 749, 750). Here, the Supreme Court providently exercised its discretion in denying that branch of Shiponi’s motion which was pursuant to CPLR 3124 to compel the plaintiff to comply with the notice for discovery and inspection dated December 19, 2019, as that discovery demand sought information that was not relevant to the issues in this action (see id.).”

Silverstein v Gregory 2023 NY Slip Op 31939(U) May 30, 2023 Supreme Court, New York County Docket Number: Index No. 151024/2022 Judge: Dakota D. Ramseur is an example of what we think is the most complicated of cases: a legal malpractice (or Judiciary Law 487 case) based upon a medical malpractice case. The facts, the testimony and the overwhelming records all make for a very complicated issue.

Here, the question is whether conduct at trial, in which it is alleged that the defense attorney asked questions and sought testimony contrary to the medical records can comprise violation of Judiciary Law 487.

“Plaintiff, Barbara Silverstein (plaintiff), commenced this action pursuant to New York
Judiciary Law§ 487 and for libel against defendants Robin Gregory, Esq. (Gregory) and Wilson Elser Moskowitz Edelman & Dicker LLP (Wilson Elser) (collectively, defendants) stemming from their representation of the defendant in the disposed underlying action in New York County entitled Silverstein v Farr Nezhat, et al., Index no. 109486/2006 (the underlying action). Defendants now move pursuant to CPLR 321 l(a)(l), (7) to dismiss the amended complaint. Plaintiff opposes defendants’ motion and cross-moves for leave to amend her amended verified complaint, and pursuant to CPLR 602 to consolidate the instant action with the underlying action. For the following reasons, the motion to dismiss the complaint is granted, and the cross-motion is denied.”

“In her affidavit in support of her motion to vacate the jury verdict, plaintiff avers that
Gregory violated Judiciary Law § 487 “by having Dr. Gharibo falsely testify that Plaintiff
suffered from Narcotic Bowel Syndrome” (Berk [Silverstein] affidavit, ,i 86). In her amended complaint, plaintiff alleges that this testimony directly contradicted her medical records: “despite there being a complete absence of any medical records documenting that Plaintiff suffered from severe stomach aches following her taking pain medication” (amended complaint. With respect to Dr. Gharibo, a pain doctor who solely treated musculoskeletal problems, and not GYN issues, he testified that Dr. Grenell overprescribed narcotics to Silverstein and Gregory violated Judiciary Law § 487 by intentionally misrepresenting the amount of pain medication plaintiff was taking (id., ,i 70). Gregory falsely told the jury that “Plaintiff was a drug addict at a time that
Opioid abuse was all over the news” (Berk [Silverstein] affidavit.

Plaintiff’s position is essentially that Nezhat, Drs. Herzog and Kavaler, and Dr. Gharibo
testified falsely, all part of an intentional plan by Gregory. Specifically, Gregory had Drs.
Herzog, Kavaler and Gharibo testify that plaintiff failed to follow Dr. Grenell’s recommendation to see a cognitive behavioral therapist (amended complaint, ,i 71). Gregory had the insurance records reflecting the name of plaintiff’s cognitive behavioral therapist. Although plaintiff provided authorizations to Gregory for all of her relevant medical treatment, which established the truth of plaintiff’s condition, in contravention of these documents, Gregory had these witnesses lie at trial. Furthermore, Gregory intentionally misrepresented the amount of pain medication that plaintiff was taking and falsely told the jury that plaintiff was a drug addict (id., ,i 81). But again, according to plaintiff, the medical records, including the updated pharmacy
authorizations that Gregory received throughout the case, establish how much medication plaintiff was taking and how often the prescriptions were filled prior to trial. Plaintiff argues that Dr. Gharibo made false statements about plaintiff’s addiction to opioids despite the information in the medical records.”

“Even accepting all of plaintiff’s allegations as true, this Court cannot find that there are
sufficient facts alleged establishing that Gregory intentionally deceived the court. Plaintiff offers specific facts concerning the testimony of Nezhat and the expert defendants in the underlying action, and how the testimony was not consistent with facts in plaintiff’s possession, or plaintiff’s version of the facts. Yet, plaintiff offers no specific facts concerning either the falsity of the testimony, Gregory’s intention to deceive, or his actual deception upon the court (see Sammy v Haupel, 170 AD3d 1224, 1225 [2d Dept 2019] [the court granted the defendants’ motion to dismiss plaintiff’s section 487 claim on the grounds that the plaintiff failed to set forth “with specificity,” either in her complaint or in her papers opposing the motions, “how the defendants knew or should have known that she did not sign the release upon which they relied
in asserting affirmative defenses on behalf of their clients” or that the defendants had “intended to deceive the court”]).

Here, plaintiff’s conclusory statements that the testimony was false cannot substitute for facts establishing that the testimony was false, or facts supporting that Gregory knew or should have known that the testimony was false. That Nezhat’s testimony during his deposition was not consistent with his testimony at trial does not support a finding that the defendants behaved in an egregious way, as there are many explanations for this inconsistency and no factual basis supporting plaintiff’s claim of deception. Similarly, the fact that the expert witnesses’ testimony on contested issues in the underlying action was not consistent with plaintiff’s testimony, plaintiff’s expectation of defendants’ testimony or with plaintiff’s medical records does not
establish a deceit upon the court.”

Trafelet v Trafelet 2023 NY Slip Op 03563 Decided on June 29, 2023
Appellate Division, First Department is an unusual charging lien case in which the attorneys successfully obtain court determination of its fees, and is yet a defendant in a legal malpractice case. Fees and insurance indemnification are, of course, two different matters. Here, the client actively encouraged the use of certain expensive experts and made no objections at all to the billings.

“BIR is entitled to enforce its charging lien, the existence of which has been recognized by the court (Matter of Trafelet v Cipolla & Co., LLC, 190 AD3d 573 [1st Dept 2021]), and the amount of which was set by stipulation against certain funds held in escrow by plaintiff’s counsel, while maintaining its counterclaim in plaintiff’s legal malpractice action (see Butler, Fitzgerald & Potter v Gelmin, 235 AD2d 218, 218-219 [1st Dept 1997]; Anonymous v Anonymous, 258 AD2d 279, 280 [1st Dept 1999]).”