Creadore v Rosenberg & Estis, P.C. 2023 NY Slip Op 31253(U) April 19, 2023
Supreme Court, New York County Docket Number: Index No. 155690/2022
Judge: Lyle E. Frank is an illustration of what happens when attorneys are terminated and then the underlying case settles while attorney # 2 is representing Plaintiff (or Plaintiff is pro-se).

“Plaintiff hired defendant lawyers to represent him in a real estate sales deposit dispute in New York. Plaintiff as the seller believed that the purchasers violated the “best efforts” provision in the sales contract, and he had reason to keep the entire deposit. Defendants did not raise the “best efforts” standard in their answer to the action commenced by purchasers in federal court and only recouped half of the deposit. Plaintiff believed the omission is a legal malpractice and filed the suit in this court, alleging twelve causes of action, including malpractice, defamation, accounting, conversion, and violation of Judiciary Law § 487, etc. Defendants filed the motion to
dismiss all the claims pursuant to CPLR § 3211 (a)(l), (a)(7) and the doctrine of “duplicative claims”.

“Here, plaintiff failed to plead a cognizable legal malpractice claim. First, failure to raise
the “best efforts” standard to which agreed by purchasers in the sales contract could be deemed as a professional negligence by defendants. A party’s promise to use best efforts is valid consideration, and, where it is clear from the language of an agreement that the parties intended to be bound, and there exists an objective method for supplying a missing term, the parties should be held to their bargain. Maestro W Chelsea SPE LLC v. Pradera Realty Inc., 38 Misc. 3d 522, 525.

Here, in the rider to the sales contract, purchasers promised to use best efforts to “comply promptly with reasonable requests made by the Board.” See NYSCEF Doc. No. 18, page 10. An interview request from the Board is a reasonable one and failure to comply with it is a breach of the promise, thus making it the basis for plaintiff to object to refund of the deposit and frustrating purchasers’ declaratory judgment motion. See NYSCEF Doc. No. 81, ,i 38. Therefore, failure to raise the “best efforts” standard in the answer to the declaratory judgement motion could be deemed as a professional negligence by defendants, the more so because they are self-proclaimed “premier real
estate” lawyers in New York City. Id. at ,i 20.

The problem is negligence alone is far from enough to build a case for legal malpractice. Plaintiff also needs to plead the actual damages and the proximate cause prongs of the test. Here, plaintiff did not elaborate on the basis for the damages sought in the complaint. The deposit amounts to $190,000 in total and plaintiff did get a portion of it in return pursuant to the final settlement agreement with the purchasers. See NYSCEF Doc. No. 52. The court couldn’t figure out why plaintiff demanded at least $350,000 for actual damages associated with the legal malpractice claim. Again, “the damages claimed in a legal malpractice action must be ‘actual and ascertainable’ resulting from the proximate cause of the attorney’s negligence. The damages
claimed cannot be too speculative and incapable of being proven with any reasonable certainty.” Zarin v. Reid & Priest, 184 A.D.2d 385, 385 [1st Dept. 1992].

Plaintiff also failed to allege that any legal malpractice by defendants proximately caused the actual damages incurred by him. The Court of Appeals stressed that “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 lawyer’s negligence.” Rudolf at 442 ( emphasis added). After relieving defendants as counsel in the underlying case, plaintiff litigated the case prose and settled with purchasers with a number less than the full deposit. If the “best efforts” provision is the linchpin to his case, as claimed by plaintiff in the complaint, then why did he still incur certain
damages in the settlement or why didn’t he press on with the legal theory and prevail in the underlying action, given that he had full control of the proceedings then? See NYSCEF Doc. No. 49 The First Department has emphasized the burden time and again: “[a] plaintiffs burden of proof in a legal malpractice action is a heavy one. The plaintiff must prove first the hypothetical outcome of the underlying litigation and, then, the attorney’s liability for malpractice in connection with that litigation. The requirement of proving a case within a case is a distinctive feature of legal malpractice actions arising from an attorney’s alleged negligence in preparing or conducting litigation. It adds an additional layer to the element of proximate cause … ” Lindenman v. Kreitzer,
7 A.D.3d 30, 31 (emphasis added).”

Fraumeni v Law Firm of Jonathan D’Agostino, P.C. 2023 NY Slip Op 01984
Decided on April 19, 2023 Appellate Division, Second Department illustrates the outer limits of “continuous representation” which requires a continuing relationship of trust and confidence as well as a mutual understanding of the need for further legal work. Here, the act of asking for the file to be returned marked the end of “continuous representation.”

“On July 3, 2019, the plaintiff commenced this action against the defendants, the Law Firm of Jonathan D’Agostino, P.C. (hereinafter the law firm), Jonathan D’Agostino, Edward J. Pavia, Glen Devora, and Frank J. DiBari, to recover damages for legal malpractice and violation of Judiciary Law § 487. The plaintiff alleged, inter alia, that the defendants committed legal malpractice in their representation of her in two personal injury actions (hereinafter the underlying actions) by suing the wrong parties, leading to the dismissal of the underlying actions, and that as a result of the defendants’ failure to ascertain the proper parties to sue, any new action was time-barred since the statute of limitations had expired. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint, asserting, inter alia, that the action was time-barred. The defendants contended that the action was commenced after the expiration of the applicable three-year statute of limitations, which began to run on May 4, 2016, when the plaintiff demanded, and received, her legal file from them. The plaintiff opposed on the ground that the action was timely commenced pursuant to the continuous representation doctrine, since the statute of limitations only began to run on July 15, 2016, when the Supreme Court granted the law firm’s motion to withdraw as counsel in the underlying actions. In an order dated February 19, 2020, the Supreme Court granted the defendants’ motion, and, by a judgment entered February 21, 2020, dismissed the complaint as time-barred. The plaintiff appeals. We affirm.”

“The statute of limitations for a cause of action alleging legal malpractice, and a cause of action alleging a violation of Judiciary Law § 487 arising out of the same transactions as the legal malpractice cause of action, is three years (see CPLR 214[6]; Farage v Ehrenberg, 124 AD3d 159). “‘However, causes of action alleging legal malpractice which would otherwise be barred by the statute of limitations are timely if the doctrine of continuous representation applies'” (Keshner v Hein Waters & Klein, 185 AD3d 808, 808, quoting Farage v Ehrenberg, 124 AD3d at 164 [alterations and internal quotation marks omitted]). “For the doctrine to apply, there must be clear indicia of ‘an ongoing, continuous, developing, and dependent relationship between the client and the attorney'” (Farage v Ehrenberg, 124 AD3d at 164, quoting Aseel v Jonathan E. Kroll & Assoc., PLLC, 106 AD3d 1037, 1038; see Joseph v Fensterman, 204 AD3d at 770). “The essence of a continuous representation toll is the client’s confidence in the attorney’s ability and good faith, such that the client cannot be expected to question and assess the techniques employed or the manner in which the services are rendered” (Farage v Ehrenberg, 124 AD3d at 167). Therefore, “[o]ne of the predicates for the application of the doctrine is continuing trust and confidence in the relationship between the parties” (id. [internal quotation marks omitted]). “‘What constitutes a loss of client confidence is fact specific, varying from case to case, but may be demonstrated by relevant documentary evidence involving the parties, or by the client’s actions'” (Tantleff v Kestenbaum & Mark, 131 AD3d 955, 957, quoting Farage v Ehrenberg, 124 AD3d at 168).

Here, the defendants established, prima facie, that the plaintiff’s legal malpractice and Judiciary Law § 487 causes of action were time-barred, as they accrued when the underlying actions were commenced in 2013 and 2015 (see Sclafani v Kahn, 169 AD3d 846, 849; Farage v Ehrenberg, 124 AD3d at 167-168). In opposition to the defendants’ prima facie showing, the plaintiff failed to raise a question of fact as to whether the continuous representation doctrine tolled the applicable statute of limitations. Contrary to the plaintiff’s contention, the record supports the Supreme Court’s determination that the relationship necessary to invoke the continuous representation doctrine ceased to exist on May 4, 2016, when the plaintiff demanded and received her file from the defendants’ office, thereby indicating her lack of trust and confidence in the parties’ relationship and her intention to discharge the defendants as her attorneys (see Aseel v Jonathan E Kroll & Assoc., PLLC, 106 AD3d at 1038). Moreover, numerous documented communications between the parties submitted by the plaintiff in opposition demonstrated that she lost all trust and confidence in the defendants, such that the attorney-client relationship ceased more than three years before the plaintiff commenced this action (see Sclafani v Kahn, 169 AD3d at 849; Farage v Ehrenberg, 124 AD3d at 160-161).”

Kleinberg v Pellegrini & Assoc., LLC 2023 NY Slip Op 31196(U) April 3, 2023
Supreme Court, New York County Docket Number: Index No. 154718/2014
Judge: Shlomo S. Hagler is an example of how an unopposed motion for summary judgment will almost always be the end of the case. Here, the legal malpractice claim was that certain medical and factual issues were not brought up at the underlying trial stage. However, there was nothing for the court to rely upon in this summary judgment setting.

“In this action alleging legal malpractice, breach of fiduciary duty and breach of contract, defendants Pellegrini & Associates, LLC and Frank L. Pellegrini ( collectively, “Pellegrini” or “defendants”) move for summary judgment pursuant to CPLR § 3212 dismissing all the claims asserted by plaintiff David Kleinberg (“Kleinberg”). In support of their motion, defendants submit the Affidavit of Christopher T. McGrath, Esq., sworn to on November 24, 2020 (NYSCEF Doc. No. 89) (the “McGrath Affidavit”), attesting that the legal representation rendered by Pellegrini in the subject underlying action was not a departure from the requisite standard of care, and the affidavit of Frank L. Pellegrini, sworn to on November 23, 2020 (NYSCEF Doc. No. 88) (the “Pellegrini Affidavit”). Kleinberg has failed to submit opposition to the subject motion.”

“This is a legal malpractice action commenced by Kleinberg in connection with
Pellegrini’s representation of Kleinberg in an underlying personal injury action. On or about November 1, 2004, Kleinberg commenced an action against the driver and owner of a motor vehicle involved in a motor vehicle accident (the “Underlying Action”). 1 Pellegrini was retained by Kleinberg in the Underlying Action, after the note of issue was filed and after the court (Sup Ct Westchester County, Hon. Joan B. Lefkowitz, J.S.C.) granted Kleinberg’s motion for summary judgment on liability. On March 18, 2011, the jury rendered a verdict in favor of the underlying defendants and awarded Kleinberg no damages (Pellegrini Affidavit, ,r 138 [NYSCEF Doc. No. 88]; Underlying Trial Transcript Part 2, at 545-547 [NYSCEF Doc. No. 80])

Essentially plaintiff is alleging that Pellegrini committed legal malpractice during the trial stage of the Underlying Action by failing to successfully undertake to have certain medical evidence and lay witness evidence admitted at trial and to “un bifurcate” the trial in order to introduce evidence on liability.2 Kleinberg alleges that “but for” the negligence of defendants, “plaintiff would have been able to demonstrate that he suffered serious physical injury, traumatic brain injury, permanent loss of the quality and quantity of vision, permanent nerve injury, injury to cerebral nerves with sequelae, along with other injuries and that the operator of the truck was negligent, and proximately injured him.” Plaintiff further alleges he “would have been able to
demonstrate that the physical, cognitive and emotional injuries were proximately caused by the negligent operation by LK Comstock & Company Inc., and its driver, and that such negligence damaged plaintiff (Complaint 1137-39 [NYSCEF Doc. No. 44]).”

“The Pellegrini defendants have met their prima facie burden demonstrating that they did not depart from the requisite standard of care (see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 49-50 [2015] citing Dombrowski v Bulson, 19 NY3d 347 [2012]). In support, Pellegrini proffers the McGrath Affidavit and the Pellegrini Affidavit. The record reflects that Pellegrini in fact introduced evidence during the trial of the Underlying Action that plaintiff claims were omitted at trial. In addition, notwithstanding plaintiffs claims, although the underlying trial court excluded the SPECT scan from evidence, the record reflects that Pellegrini provided timely disclosure of such scan and made efforts to seek disclosure of the scan at trial. Plaintiffs allegations that Pellegrini departed from the standard of care in failing to introduce evidence of certain of plaintiffs injuries and evidence of lost income, or call lay
witnesses at trial have no merit. “[A]n attorney’s selection of one among several reasonable courses of action does not constitute malpractice” ( Orchard Motorcycle Distribs., Inc. v Morrison Cohen Singer & Weinstein, LLP, 49 AD3d 292, 293 [1 st Dept 2008]; see Dweck Law Firm v Mann, 283 AD2d 292,293 [1st Dept 2001] [internal citations omitted] [“Attorneys may select among reasonable courses of action in prosecuting their clients’ cases without thereby committing malpractice, so that a purported malpractice claim that amounts only to a client’s criticism of counsel’s strategy may be dismissed”]). Plaintiffs claim that Pellegrini was negligent in failing to re-open the issue of liability at trial is likewise without merit. The issue of liability would not generally be permitted at a damages only trial (McGrath Affidavit, ,r,r 7-9).”

Williams v Silverstone 2023 NY Slip Op 01917 Decided on April 12, 2023
Appellate Division, Second Department is a common or varietal version of motion to dismiss decisions in legal malpractice settings. Plaintiff alleges that she had to settle a case with her former employer, which could have come out better, had the attorneys not been negligent. The Court finds that this fails to state a cause of action, or worse, that Plaintiff actually did not have a good cause of action. When the decision fails to outline what Plaintiff alleges the defendant did wrong, it fails to inform the bar and bench of what are the minimum allegations necessary to have a good cause of action.

“The plaintiff, a former Superintendent of Schools of the Poughkeepsie City School District (hereinafter the school district), retained the defendant attorney to represent her in connection with disputes (hereinafter the underlying matters) concerning, inter alia, the enforceability of her employment agreement with the Board of Education of the school district (hereinafter the Board). Members of the Board, among other things, sought to declare the plaintiff’s employment agreement null and void. Subsequently, the plaintiff settled the underlying matters with the Board by entering into a separation and settlement agreement.

Thereafter, the plaintiff commenced this action against the defendant to recover damages for legal malpractice and breach of fiduciary duty. The defendant moved pursuant to CPLR 3211(a)(1), (5), and (7) to dismiss the complaint. In an order dated October 1, 2020, the Supreme Court granted the motion on the ground that the complaint failed to state a cause of action. The plaintiff appeals.”

“Here, even if the defendant had been negligent in his representation of the plaintiff in connection with the underlying matters, viewing the complaint in the light most favorable to the plaintiff (see Leon v Martinez, 84 NY2d at 87-88), it failed to plead specific factual allegations demonstrating that, but for the defendant’s alleged negligence, there would have been a more favorable outcome in the underlying matters or that the plaintiff would not have incurred any damages (see York v Frank, 209 AD3d 804, 807; Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1506; Benishai v Epstein, 116 AD3d 726, 728). The plaintiff’s general contentions that but for the defendant’s negligence, she “would have litigated her claims against the Board, or in the alternative, procured a settlement agreement with better terms of compensation and otherwise far more beneficial” are speculative and, as such, cannot serve as a basis for a legal malpractice claim (see Jean-Paul v Rosenblatt, 208 AD3d at 653; Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1506). “The fact that the plaintiff subsequently was unhappy with the settlement [she] obtained . . . does not rise to the level of legal malpractice” (Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1506 [internal quotation marks omitted]; see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 758; Holschauer v Fisher, 5 AD3d 553, 554).”

O’Keefe v Barra 2023 NY Slip Op 01829 Decided on April 6, 2023 Appellate Division, Third Department is the kind of case that defendant attorneys (and their insurers) point to as “bad” legal malpractice cases…those that are made in counterclaims to fee lawsuits by the attorney against the client. In this case, attorney wins the claim and client loses.

“Defendant, a dentist, and her then-husband, an attorney, entered into a separation agreement in February 2011. In January 2013, defendant commenced an action seeking a divorce due to their having “lived separate and apart pursuant to” that agreement for over a year or, in the alternative, due to the irretrievable breakdown of the marriage (Domestic Relations Law § 170 [6]; see Domestic Relations Law § 170 [7]). Defendant’s husband answered and counterclaimed both to set aside the separation agreement and for a divorce based upon the irretrievable breakdown of the marriage. After the trial in the action began in December 2013, defendant became concerned about how her then-attorney was handling the matter and retained plaintiff to represent her going forward. Plaintiff did so by moving for, among other things, an order directing defendant’s husband to pay child support as directed by the separation agreement as well as for belated permission to present expert testimony at trial, and then seeing the trial through to its conclusion. Following trial, Supreme Court (Breslin, J.) issued a judgment in July 2015 that declined to set aside the separation agreement, dismissed the counterclaims and granted defendant the conversion divorce that she had sought.”

“Turning first to the April 2022 order granting plaintiff’s motion for summary judgment, plaintiff established a prima facie claim for account stated via proof that defendant executed a retainer agreement and that plaintiff regularly sent defendant invoices for her fees and expenses that were retained without objection (see Schlenker v Cascino, 124 AD3d 1152, 1153 [3d Dept 2015], lv denied 25 NY3d 904 [2015]; Whiteman, Osterman & Hanna, LLP v Oppitz, 105 AD3d 1162, 1163 [3d Dept 2013]). Similarly, plaintiff satisfied her initial burden of establishing her breach of contract claim with evidence that she had performed her obligations under the retainer agreement, as well as “various invoices which reflect that defendant failed to pay” plaintiff’s fees and expenses (George S. May Intl. Co. v Thirsty Moose, Inc., 19 AD3d 721, 722 [3d Dept 2005]; see Saint James’ Episcopal Church v F.O.C.U.S. Found., 47 AD3d 1058, 1059 [3d Dept 2008]; Bombardier Capital v Reserve Capital Corp., 295 AD2d 793, 794 [3d Dept 2002]).

The burden accordingly shifted to defendant to raise a material question of fact on those claims, which she endeavored to do in an unsworn, albeit notarized, “response.” With regard to plaintiff’s account stated claim, defendant asserted, without corroboration, that she had objected to the invoices at various points, but those “self-serving, bald allegations of oral protests were insufficient to raise a triable issue of fact as to the existence of an account stated” (Darby & Darby v VSI Intl., 95 NY2d 308, 315 [2000]; accord Schlenker v Cascino, 124 AD3d at 1153). As for plaintiff’s breach of contract claim, defendant focused, in relevant part, upon what she perceived as deficiencies in plaintiff’s performance under the retainer agreement.^[FN1] That said, defendant obtained the relief she had demanded in her divorce complaint as a result of plaintiff’s representation — representation that, to reiterate, began after discovery had been completed and a trial was underway — and defendant provided nothing beyond her own speculation to suggest that the additional legal steps she purportedly sought from plaintiff, to the extent that they were within the scope of the representation, would have succeeded at that late date or that plaintiff’s failure to take them actually damaged her. As such, defendant also failed to raise a material question of fact with regard to either the performance or damages elements of plaintiff’s breach of contract claim (see e.g. Bullock v Miller, 145 AD3d 1215, 1217-1218 [3d Dept 2016]; Miazga v Assaf, 136 AD3d 1131, 1134 [3d Dept 2016], lv dismissed 27 NY3d 1078 [2016]; Chamberlain, D’Amanda, Oppenheimer & Greenfield, LLP v Wilson, 136 AD3d 1326, 1328-1329 [4th Dept 2016], lv dismissed 28 NY3d 942 [2016]). It follows that, as a result, plaintiff’s motion for summary judgment was properly granted[*3].

Finally, with regard to the July 2022 order, we agree with plaintiff that her motion seeking an award of prejudgment interest should have been granted. Supreme Court faulted plaintiff for waiting until 2020 to commence this action to recover monies owed as a result of a legal representation that ended in 2015 but, as prejudgment interest only compensates the judgment creditor for the loss of use of money he or she was owed and is not a penalty, the “responsibility for the delay [in bringing suit] should not be the controlling factor in deciding whether interest is to be computed” (Love v State of New York, 78 NY2d 540, 544 [1991]; see NML Capital v Republic of Argentina, 17 NY3d 250, 266 [2011]; Spodek v Park Prop. Dev. Assoc., 96 NY2d 577, 581-582 [2001]; Gizzi v Hall, 309 AD2d 1140, 1142 [3d Dept 2003]). Rather, prejudgment interest in a breach of contract action is required by CPLR 5001, running “from the earliest ascertainable date on which the prevailing party’s cause of action existed ‘[or,] if that date cannot be ascertained with precision, . . . from the earliest time at which it may be said the cause of action accrued’ ” (Ogletree, Deakins, Nash, Smoak & Stewart v Albany Steel, 243 AD2d 877, 880 [3d Dept 1997], quoting Govern & McDowell v McDowell & Walker, 75 AD2d 979, 980 [3d Dept 1980]; see CPLR 5001 [b]; Danka Off. Imaging Co. v General Bus. Supply, 303 AD2d 883, 886 [3d Dept 2003]). Supreme Court determined in the April 2022 order that plaintiff’s claim for breach of contract accrued when she completed her legal services on May 23, 2015. Thus, plaintiff was entitled to prejudgment interest running from that date.”

Philip S. Schwartzman, Inc. v Pliskin, Rubano, Baum & Vitulli 2023 NY Slip Op 01812
Decided on April 5, 2023 Appellate Division, Second Department is a legal malpractice case concerning, as do so many other famous legal malpractice cases, real estate in New York. Real estate is a driver of great financial gain in NY and its wide-spread nature is reflected in real estate litigation followed by frequent legal malpractice litigation.

“ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendants Pliskin, Rubano, Baum & Vitulli and Joseph D. Vitulli which was pursuant to CPLR 3211(a) to dismiss so much of the cause of action to recover damages for legal malpractice insofar as asserted by the plaintiff Philip S. Schwartzman, Inc., as alleged that those defendants exposed that plaintiff to excess tax liability by recording a sale price on certain tax documents that was higher than the true sale price of the subject commercial property, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with one bill of costs payable by the defendants Pliskin, Rubano, Baum & Vitulli and Joseph D. Vitulli to the plaintiffs, and one bill of costs payable by the plaintiffs to the defendants Joseph Vitulli, as executor of the estate of Joseph Vitulli, Jr., JJ Realty of NY, LLC, and Linden Street Realty of NY, LLC.”

“In May 2018, the plaintiff Philip S. Schwartzman, Inc. (hereinafter PSSI), and PSSI’s sole shareholder and president, the plaintiff John Schwartzman, commenced this action, inter alia, to recover damages for legal malpractice relating to the sale of a parcel of commercial property located in Flushing that was owned by PSSI. The plaintiffs alleged in the complaint that after Schwartzman received an offer to purchase the property, he discussed the offer with the defendant [*2]Joseph D. Vitulli, PSSI’s attorney. Joseph D. Vitulli informed Schwartzman that his father, the defendant Joseph Vitulli, Jr., would be willing to make a better offer for the property. PSSI entered into a contract to sell the building to the defendant JJ Realty of NY, LLC (hereinafter JJ Realty), a corporation allegedly owned by Joseph D. Vitulli and Joseph Vitulli, Jr. The contract was then assigned to the defendant Linden Street Realty of NY, LLC (hereinafter Linden Street Realty). Schwartzman signed a disclosure agreement waiving any conflict of interest with regard to the transaction. PSSI ultimately sold the property to Linden Street Realty.

The plaintiffs alleged in the complaint that Joseph D. Vitulli misrepresented several facts related to the sale, and that he acted against PSSI’s interests by advising the plaintiffs to sell the building for far less than it was worth. In an order dated January 14, 2019, the Supreme Court, among other things, granted the motion of Joseph D. Vitulli and his law firm, the defendant Pliskin, Rubano, Baum & Vitulli, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them, and that branch of the separate motion of Joseph Vitulli, Jr., JJ Realty, and Linden Street Realty which was pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against them. The plaintiffs appeal. During the pendency of the appeal, Joseph Vitulli, Jr., died, and the executor of his estate was substituted for him.”

“”Under Judiciary Law § 487(1), an attorney who ‘[i]s guilty of any deceit or collusion, [*3]or consents to any deceit or collusion, with intent to deceive the court or any party’ is liable to the injured party for treble damages” (Altman v DiPreta, 204 AD3d 965, 968). “Since Judiciary Law § 487 authorizes an award of damages only to ‘the party injured,’ an injury to the plaintiff resulting from the alleged deceitful conduct of the defendant attorney is an essential element of a cause of action based on a violation of that statute” (Gumarova v Law Offs. of Paul A. Boronow, P.C., 129 AD3d 911, 911 [internal quotation marks omitted]). Here, the plaintiffs alleged that Joseph D. Vitulli deceived the court in a previous action in 2015 by having Schwartzman sign affidavits that misrepresented Joseph D. Vitulli’s stake in JJ Realty and his connection to Linden Street Realty. However, any suggestion that the court in that action would have ruled differently absent the alleged deceit is purely speculative, and the plaintiffs have thus failed to plead an essential element.”

“Here, the plaintiffs failed to state a cause of action alleging legal malpractice arising from Joseph D. Vitulli’s alleged misconduct in advising the plaintiffs to sell the commercial property to Joseph Vitulli, Jr., since any injury from that misconduct is speculative (see Janker v Silver, Forrester & Lesser, P.C., 135 AD3d 908, 910; Sierra Holdings, LLC v Phillips, Weiner, Quinn, Artura & Cox, 112 AD3d 909, 910; Plymouth Org., Inc. v Silverman, Collura & Chernis, P.C., 21 AD3d 464, 465). However, the complaint does set out a valid cause of action on behalf of PSSI to recover damages for legal malpractice against Joseph D. Vitulli and Pliskin, Rubano, Baum & Vitulli based on the allegations that Joseph D. Vitulli recorded an incorrect sale price on certain tax documents, exposing PSSI to higher taxes (see Randazzo v Nelson, 128 AD3d 935, 937). Those same allegations do not make out a valid cause of action on behalf of Schwartzman individually, since they do not allege that Joseph D. Vitulli “breached a duty owed to the shareholder independent of any duty owing to the corporation wronged” (Abrams v Donati, 66 NY2d 951, 953; see Kramer v Meridian Capital Group, LLC, 201 AD3d 909, 911; Jacobs v Cartalemi, 156 AD3d 605, 608; Patterson v Calogero, 150 AD3d 1131, 1133).”

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

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

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

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

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

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

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

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