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]).”

Ofman v Tenenbaum Berger & Shivers, LLP
2023 NY Slip Op 03471 Decided on June 28, 2023 Appellate Division, Second Department is a case which reversed dismissal of a legal malpractice claim.

“In August 2011, the plaintiff retained the defendants to prosecute an action, inter alia, to recover damages for breach of contract against a contractor who performed renovation work for the plaintiff in 2009 (hereinafter the underlying action). The plaintiff had commenced the underlying action in 2010 through different counsel. On July 9, 2019, a judgment was issued in the underlying action in favor of the plaintiff and against the contractor in the total sum of $541,188.24. According to the plaintiff, he was unable to collect on the judgment because the contractor had since sold his assets and moved to Italy.

In November 2019, the plaintiff commenced this action against the defendants to recover damages for legal malpractice, alleging that the defendants’ delays in prosecuting the underlying action prevented him from collecting on the judgment. The defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. The plaintiff filed an amended complaint as of right while the defendants’ motion was pending and opposed the defendants’ motion. In reply, the defendants requested that their motion be addressed to the amended complaint. In an order dated June 23, 2020, the Supreme Court granted the defendants’ motion. The plaintiff appeals.”

“Here, accepting the facts alleged in the amended complaint as true, and according the plaintiff the benefit of every possible favorable inference, the amended complaint sufficiently states a cause of action to recover damages for legal malpractice. The amended complaint alleges that the defendants failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession by engaging in a pattern of undue delay in their prosecution of the underlying action, including by allowing the underlying action to be marked off the active calendar on two occasions and by failing to comply with certain court-ordered deadlines. The amended complaint further alleges that the defendants’ negligence proximately caused the plaintiff to sustain actual and ascertainable damages in that their delays in prosecuting the underlying action prevented him from being able to collect on the judgment that was eventually entered against the contractor (see Jean-Paul v Rosenblatt, 208 AD3d at 653; Aristakesian v Ballon Stoll Bader & Nadler, P.C., 165 AD3d 1023, 1024; Oberkirch v Charles G. Eichinger, P.C., 35 AD3d 558, 559; Khadem v Fischer & Kagan, 215 AD2d 441, 442). Contrary to the defendants’ contention, the plaintiff’s allegations relating to proximate cause, including the nature and value of the contractor’s alleged assets and when they were disposed of, were not impermissibly speculative or conclusory (see Davis v Farrell Fritz, P.C., 201 AD3d 869, 873).”

Real Estate and conflicts of interest are transactional situations rife with claims of legal malpractice, and Fields v Baker & Hostetler LLP 2023 NY Slip Op 50610(U) Decided on June 23, 2023 Supreme Court, New York County Reed, J. is no exception.

“Plaintiff Richard Fields (Fields) is a resident of the State of New York and a businessman with assets and interests in several states, including certain real property located in Teton County, Wyoming (Wyoming Property) (see complaint, dated April 28, 2020, ¶¶3, 13 and 19 [NYSCEF Doc No. 9]). Plaintiffs Jackson Land and Cattle, LLC, JLC Ranch Development, LLC, and JLC Ranch, LLC are Delaware limited liability companies that own the Wyoming Property, which are controlled and indirectly owned by Fields (id., ¶14). Defendant Baker & Hostetler LLP (Baker) is a law firm allegedly organized as a limited liability partnership under the laws of the State of Ohio (id. ¶15). Defendant Laurence Markowitz (Markowitz) is alleged to be an attorney admitted to practice in the State of New York and a partner in Baker’s New York City office (id. ¶16). Defendant Raymond Sutton (Sutton) is alleged to be an attorney admitted to [*2]practice in the State of Colorado and the managing partner of Baker’s Denver office (id. ¶17).

Plaintiffs allege that, beginning in or about 2005, Baker served as attorneys for Fields and several of his corporate entities on various matters, including estate planning, tax, asset protection, general business advice, and litigation, including litigation involving the Wyoming Property (id. ¶19). During this representation, Fields purportedly shared confidential financial information with Baker, including detailed information about his assets and liabilities (id.).

Plaintiffs contend that Baker acted as escrow agent on a series of transactions involving the execution of a series of mortgages (Mortgages),[FN2] encumbering the Wyoming Property, and that the mortgagees are business entities controlled by another Baker client, nonparty Raul Rodriguez (Rodriguez) (id. ¶3). Plaintiffs assert, upon information and belief, that defendant Markowitz was an investor in at least one of Rodriguez’s mortgagees (id. ¶7). Plaintiffs further allege that Baker represented Fields and the other plaintiffs as mortgagors and represented Rodriguez and his mortgagees in these transactions (id. ¶3).

Plaintiffs allege that, at the outset, Baker suggested to Fields that they could treat the Mortgages as “pocket mortgages” by holding them in escrow with Baker as the escrow agent, without publicly recording them, to avoid any default being accelerated and called by Bank of America, which already held mortgages on the Wyoming Property (id. ¶5). Plaintiffs contend that Fields executed the first of the Mortgages only after Baker, Rodriguez, and he had agreed that the Mortgages would not be recorded without first obtaining the express consent of both Fields and Rodriguez, and that Markowitz repeatedly acknowledged to Fields in writing that the Mortgages could not be recorded without his permission (id.). Plaintiffs further note that Baker held some of the Mortgages in escrow for over a year (id. ¶6).[FN3]“

“Defendants contend that plaintiffs’ cause of action for malpractice accrued, if at all, upon execution of the Conflicts Waiver, dated February 26, 2014 (ex B to Siegal affirmation [NYSCEF Doc No. 14]) and that their breach of fiduciary duty claim accrued upon Rodriguez’s recording of the Mortgages, in or around October 2014 (see complaint, ¶55). They further contend that, if it were not for the Tolling Agreement, plaintiffs’ time to assert claims for [*6]malpractice and breach of fiduciary duty would have elapsed before they filed the complaint in this action.

Defendants, citing United States v Bertie Ambulance Serv. (2015 WL 5916691, *6, 2015 US Dist LEXIS 137577, *15 [ ED NC, Oct 8, 2015, No. 2:14-CV-00053-F] [applying NC law]), assert that, by suing them in Wyoming, plaintiffs materially breached the Tolling Agreement’s “forum selection provision” and “that breach, which went ‘to the very heart of the agreement, entitled [defendants] to rescission'” (quoting id., 2015 WL 5916691, at *5-6, 2015 US Dist LEXIS 137577, *17), and so would justify the court’s refusal to enforce the Tolling Agreement (citing OneBeacon Ins. Co. v NL Indus., Inc., 43 AD3d 716, 717-18 [1st Dept 2007]).

There are several flaws in this analysis. First, defendants’ counsel admitted at oral argument of this motion that they had not notified plaintiffs that they had rescinded the Tolling Agreement (Tr. 20:11-15), and so no recission has occurred (see 22A NY Jur2d Contracts § 502 [2d ed., May 2023 update], citing American Union Bank v Gubelman, 212 App Div 488 [1st Dept 1925] [“The failure of a party to perform his or her part of a contract does not per se rescind it, and the other party must manifest his or her intention to rescind within a reasonable time”]).

Furthermore, defendants’ reliance on OneBeacon is misplaced. The alleged breach in that case occurred several days before the effective termination date of the tolling agreement, and the agreement at issue expressly provided that “if either party filed an action in violation thereof, the other party could seek dismissal, without prejudice, that remedy being hereby agreed upon between the parties” (OneBeacon Ins. Co., 43 AD3d at 717 [internal quotation marks omitted]). In this case, the alleged breach occurred after the Tolling Agreement had terminated and the forum selection clause here does not “contain a provision that an action commenced in violation or breach of the [Tolling Agreement] should be dismissed” (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft, LLP, 23 Misc 3d 1134 [A], 2009 NY Slip Op 51090 [U], *10 [Sup Ct, NY County 2009], distinguishing OneBeacon). Considering these differing circumstances, defendants’ motion to dismiss plaintiffs’ causes of action for legal malpractice and breach of fiduciary duty as time-barred is denied.”

Murphy v Certain
2023 NY Slip Op 02978
Decided on June 06, 2023
Appellate Division, First Department

“The court properly dismissed the complaint for failure to state a cause of action. The claims for conversion or trespass to chattels were correctly dismissed because they do not sufficiently identify the property at issue (see Sporn v MCA Records, 58 NY2d 482, 487 [1983]). The complaint fails to state a cause of action for defamation and consequently, libel and slander, because it does not set forth the words of the allegedly false statement and it does not allege any other of the requisite elements of the claims (see CPLR 3016 [a]; Stepanov v Dow Jones & Co., Inc., 120 AD3d 28, 34 [1st Dept 2014]). The deceit under Judiciary Law § 487 and fraud claims were insufficiently pleaded because they do not identify any misrepresentation made by defendants (see Bill Birds, Inc. v Stein Law Firm, P.C., 35 NY3d 173, 178 [2020]; Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]; CPLR 3016 [b]). Neither the intentional infliction of emotional distress nor the negligent infliction of emotional distress claims states a cause of action, as the intentional infliction claim does not allege extreme and outrageous conduct by defendants (see Chanko v American Broadcasting Cos. Inc., 27 NY3d 46, 56 [2016]), and the negligent infliction claim does not identify any applicable duty owed by defendants (see Brown v New York Design Ctr., Inc., — AD3d &mdash, 2023 NY Slip Op 01228, *5 [1st Dept 2023]).”

Tueme v Lezama 2023 NY Slip Op 03036 Decided on June 7, 2023 Appellate Division, Second Department is practically a gothic novel, with allegations of false testimony, false accusations and perjured testimony all in aid of getting a better divorce settlement. The Appellate Division reversed and ended the case. Here, we discuss the Judiciary Law 487 claims.

“The plaintiff and the defendant Janet P. Lezama were married in 1990. In 2016, Lezama commenced an action for a divorce and ancillary relief (hereinafter the divorce action) in which she was represented by the defendants Dana Navins and Kass & Navins, PLLC (hereinafter together the attorney defendants). After the divorce was finalized, the plaintiff commenced this action against Lezama and the attorney defendants to recover damages for false arrest, malicious prosecution, negligent infliction of emotional distress, and violation of Judiciary Law § 487 based on allegations that the defendants concocted a “plan” to obtain a divorce against the plaintiff and obtain an excessive “financial settlement.” Among other things, the plaintiff alleged that, as part of this plan, Lezama made false allegations of child abuse and criminal conduct against the plaintiff.

The attorney defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against them. Together with his opposition to the motion, the plaintiff served an amended complaint, which replaced the cause of action to recover damages for negligent infliction of emotional distress with a cause of action to recover damages for intentional infliction of emotional distress. The attorney defendants, in effect, elected to apply their motion to the amended complaint. The Supreme Court considered the attorney defendants’ motion as directed against the amended complaint, and denied the motion. The attorney defendants appeal.”

“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 [internal quotation marks omitted]; see Matthaus v Hadjedj, 148 AD3d 425, 425-426; Zapata v Tufenkjian, 123 AD3d 814, 816). 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; see also Looff v Lawton, 97 NY 478, 482). 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).”

While this criminal procedure case about the assignment and adjudication of sex offender levels has nothing to do with legal malpractice, an introduction to the dissent sets an interesting illustration of how legal malpractice is really different from almost all other areas of the law. People v Weber 2023 NY Slip Op 03301 Decided on June 15, 2023 Court of Appeals Halligan, J. is an early (if not the first) decision written by the newly appointed Judge Halligan.

The allusion comes in Judge Wilson’s dissent.

“Our adversarial system is premised on the idea that interested parties will bring all the issues they wish to have a court consider, thus allowing courts to make the most informed decision in each case. Counsel can choose to advance a kitchen sink of arguments, carefully choose a more limited set, or carelessly omit a potentially strong argument. Because our courts rely on the diligence and judgment of counsel in the presentation of issues for decision, the consequence for parties whose counsel fails to advance a meritorious claim are high, regardless of whether the failure arose from a clever strategy or a grotesque bungle. Other than when counsel’s negligence is so substantial as to violate the constitutional right of a criminal defendant to effective assistance of counsel, litigants are barred from belatedly advancing claims they had a full and fair opportunity to raise initially. Civil litigants have no such relief under our established precedent (other than by a separate claim for legal malpractice).”

Duckles v Zatkowsky 2023 NY Slip Op 31942(U) June 9, 2023 Supreme Court, New York County Docket Number: Index No. 156173/2022 Judge: Mary V. Rosado gives a procedural explanation of how to group a set of legal malpractice and executor self-dealing claims together before one tribunal.

“This case arises out of alleged legal malpractice committed by Defendants in relation to the planning and administration of Plaintiff decedent’s estate (NYSCEF Doc. 1 ). As of the date of this motion’s submission, there were three separate actions related to Plaintiff decedent’s estate pending in New York County Surrogate’s Court.

Another case titled Levy v Estate of Mahler et. al., Sup. Ct. New York Co. Index No.:
650196/2021 was initiated seeking specific performance related to the purchase of cooperative shares owned by the decedent. Decedent’s children intervened in that matter, and the case was transferred to New York County Surrogate’s Court by a decision and order of Justice Louis L. Nock dated February 16, 2021.

Another malpractice action against Defendants with similar allegations of malpractice was brought by Joyce Duckies on December 14, 2021 in Monroe County. In that case, Defendants moved to have the case removed to New York County Surrogate’s Court to ensure consistent determinations with estate proceedings seeking similar relief. The motion was granted on May 20, 2022 and the case was transferred to New York County Surrogate’s Court.

Pursuant to Surrogate’s Court Procedure Act§ 201(3), the Surrogate’s Court has “full and
complete general jurisdiction in law and in equity to administer justice in all matters relating to the estates and affairs of decedents, and upon the return of any process to try and determine all questions, legal or equitable, arising between any or all of the parties to any action or proceeding, or between any party and any other person having any claim or interest therein”.

Specifically at issue in this case is (a) the creation of a trust to minimize the size and
complexity of the probate estate; (b) the drafting of Decedent’s Last Will and Testament; (c) placing certain properties into LLCs instead of a trust and the impact that would have on estate planning purposes, and ( d) Defendants’ performance as executor of Decedent’s estate in New York County Surrogate’s Court. As such, the issues in this case touch directly on proceedings which have occurred in Surrogate’s Court, as well as the administration of decedent’s estate. In fact, the alleged damages in this case are damages to the estate of tax payments of $3.8 million (see NYSCEF Doc. 2 and ,i 64 ). There is also the allegation that Defendants, as executor of the estate, has engaged in self-dealing (id. at ,i 65). Given the highly interwoven nature of the allegations of
legal malpractice and administration of decedent’s estate, including certain acts which purportedly took place in New York County Surrogate’s Court, it is clear that New York County Surrogate’s Court has jurisdiction over these claims.”

New York, and especially Manhattan are breeders for real estate legal malpractice litigation. High value real estate transactions, and the variety/complexity of those transactions inevitably lead to legal malpractice cases, each with its own very high value. 35 W. 26th St. Realty, LLC v Norris, McLaughlin, & Marcus, P.C. 2023 NY Slip Op 31851(U) June 2, 2023 Supreme Court, New York County Docket Number: Index No. 155004/2022 Judge: Lori S. Sattler is a fine example.

“Plaintiff 35 West 26th Street Realty, LLC (“Plaintiff”) is a real estate company that owns
a five-story building located at that address (“the building”) with a sole owner and officer, Osman Bessa. It seeks to recover damages purportedly caused by Defendants’ negligent representation in an administrative proceeding before the New York Loft Board. Nonparty Norris McLaughlin is a law firm and Proefriedt is an attorney there.
Plaintiff purchased the building in 2002. At the time, the building had been subject to the Loft Law and the Loft Board’s jurisdiction for nearly 20 years. As set forth in the papers, the In 1985, a tenant harassment finding was issued against a previous owner of the building concerning, inter alia, conditions in the building’s second and fifth floor units. The tenant harassment finding remained in effect at the time Plaintiff purchased the building, although Bessa contends he was unaware of it.

Plaintiff alleges that it retained Defendants in 2007 to remove the building from the Loft
Board’s jurisdiction and deregulate its units. It maintains that Proefriedt was held out by Norris McLaughlin as having “considerable experience in matters related to the Loft Board” and that Proefriedt had represented the building’s previous owner (NYSCEF Doc. No. 8, Complaint ¶¶ 24-26). According to Plaintiff, at Proefriedt’s recommendation, it bought out the tenants of the second floor and fifth floor units in 2007 and 2014 respectively. Plaintiff maintains these purchases were made so that the units could be deregulated and rented at the prevailing market rate pursuant to Section 286(12) of the Loft Law. To that end, Bessa allegedly executed sale of rights records under the Loft Law on behalf of Plaintiff at Proefriedt’s instruction. Proefriedt then filed these forms with the Loft Board on June 15, 2016.”

““A legal malpractice claim accrues ‘when all the facts necessary to the cause of action
have occurred and an injured party can obtain relief in court’” (McCoy v Feinman, 99 NY2d 295, 301 [2002], quoting Ackerman v Price Waterhouse, 84 NY2d 535, 541 [1994]). “In most cases, this accrual time is measured from the day an actionable injury occurs, even if the aggrieved party is ignorant of the wrong or injury” (id. [citation omitted]). An actionable injury has been found to have occurred when a plaintiff’s damages become “sufficiently calculable to permit [the] plaintiff to obtain prompt judicial redress” (id. at 306; see also Flintlock Constr. Servs., LLC v Rubin, Fiorella & Friedman, LLP, 188 AD3d 530, 531 [1st Dept 2020], quoting McCoy, 99 NY2d at 301, citing King Tower Realty Corp. v G & G Funding Corp., 163 AD3d 541 [2d Dept 2018]).


Defendant meets its prima facie burden of showing that the statute of limitations for
malpractice expired before Plaintiff commenced this action. It annexes to its moving papers a copy of the June 24, 2016 Loft Board letter to Plaintiff stating that the harassment finding remained in place and the second and fifth floor units were still subject to rent regulation under the Loft Law (NYSCEF Doc. No. 9). It also submits a January 25, 2017 invoice sent to Bessa by Norris McLaughlin for Proefriedt’s legal services containing an entry for November 16, 2016 that states “Finalize application” (NYSCEF Doc. No. 10). These documents establish, prima facie, that any purported malpractice in failing to apply for a termination of the harassment finding took place in 2016 when the applications were submitted and that any future attempts to raise the units’ rents to fair market value would fail unless the harassment finding was removed.

Plaintiff fails to aver any evidentiary facts indicating that the statute of limitations had not expired at the time it commenced this action or that otherwise create a question of fact as to whether this action was timely (see MTGLQ Invs., LP, 172 AD3d at 644). It annexes to its opposition an affidavit from Bessa and copies of emails between Bessa and Proefriedt from June and July 2016 (NYSCEF Doc. Nos. 15, 17-18). The affidavit, which merely reiterates Plaintiff’s argument that Bessa was unaware of the June 24, 2016 Loft Board letter, only asserts that Bessa believed Proefriedt “learned about the determination in the summer of 2016” and “likely delayed” the final application to the Loft Board by several months to cover up his failure to have the harassment finding terminated (Bessa aff ¶¶ 19, 25). Neither these speculatory assertions nor
the 2016 emails between Bessa and Proefriedt create an issue of fact as to whether Plaintiff’s alleged damages only became ascertainable in October 2019 or the malpractice cause of action otherwise accrued at a later date. The Court therefore finds that the statute of limitations accrued on August 8, 2019.


Plaintiff also fails to create an issue of fact as to whether the statute of limitations was
tolled because it was continuously represented by Defendants between the 2016 removal application filings and the 2019 Loft Board final order. Under the continuous representation doctrine, the statute of limitations for legal malpractice is tolled “only where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” (McCoy, 99 NY2d at 306; Shumsky v Eisenstein, 96 NY2d 164, 168 [2001]). The continuous representation toll ends upon the conclusion of the matter or upon the attorney’s withdrawal from representation (see Shumsky, 96 NY2d at 170-171; Williamson ex rel. Lipper
Convertibles, L.P. v PricewaterhouseCoopers LLP, 9 NY3d 1, 9-1). An attorney’s withdrawal can be inferred where, for instance, the attorney ceases to respond to the plaintiff’s attempts at communication (cf. Shumsky, 96 NY2d at 170-171; Champlin v Pellegrin, 111 AD3d 411 [1st Dept 2013] [13-year gap in communication put plaintiff on notice that representation had terminated]).”

North Flatts LLC v Belkin Burden Goldman, LLP 2023 NY Slip Op 02954 Decided on June 01, 2023 Appellate Division, First Department very quickly affirms a denial of summary judgment on two grounds. One was a premature motion for summary judgment was improper and the second was that no expert opinion was offered in support of defendant’s argument.

“In this legal malpractice action, plaintiff alleges that defendant, in connection with its representation of plaintiff in the legalization of an interim multiple building for residential use, negligently failed to seek a time extension to achieve compliance with the safety and fire protection standards of article 7-B of the Multiple Dwelling Law, thereby prohibiting plaintiff from legally collecting rent from its tenants pending its receipt of a final residential certificate of occupancy (see Multiple Dwelling Law art 7-C). Defendant did not satisfy its prima facie burden of establishing its entitlement to summary judgment dismissing the complaint as a matter of law, as defendant failed to submit an expert opinion demonstrating that it did not perform below the ordinary reasonable skill and care possessed by an average member of the legal community (see Suppiah v Kalish, 76 AD3d 829, 832 [1st Dept 2010]). Defendant contends that it had timely filed an article 7-B compliance form on plaintiff’s behalf in reliance on the certification of plaintiff’s architect, and that the filing of that form prohibited it from seeking a time extension to achieve article 7-B compliance. However, it has not submitted an expert affidavit establishing that its reliance on the architect’s opinion was reasonable under the circumstances, or explaining how defendant was prohibited from withdrawing the filed form and seeking a time extension to comply with article 7-B. Moreover, absent an expert affidavit, defendant failed to establish prima facie that its alleged negligence in its the handling of the article 7-B compliance form was not a proximate cause of plaintiff’s losses (see id.).

In any event, the court properly denied the prediscovery motion as premature, given plaintiff’s showing that facts essential to justify opposition to defendant’s motion may lie within defendant’s exclusive knowledge or control (see CPLR 3212[f]; Lyons v New York City Economic Dev. Corp., 182 AD3d 499, 499-500 [1st Dept 2020]). In response to defendant’s claim that it was not aware of potential issues with the architect’s certification of compliance until the August 2021 conference, after the May 2021 deadline to apply for an extension had expired, plaintiff pointed out that its tenants had disputed the architect’s compliance opinion as early as January 2021. Discovery is necessary to shed light on when defendant knew of a potential problem with the filed article 7-B compliance form, and whether defendant could have timely withdrawn that form and sought a timely extension to achieve compliance.”