Appel v New York City Police Dept. 2023 NY Slip Op 30786(U) March 16, 2023
Supreme Court, New York County Docket Number: Index No. 155293/2022
Judge: Judy H. Kim asks the question of whether it was the Mossad who came for Plaintiff or merely life support medical personnel. The Court basically finds that it was the later.

“On or about August 10, 2020, plaintiff commenced an action in the United States District Court for the Southern District of New York, under index number l:20-cv-06265-VSB (the “Federal Action”), against the Hon. Esther Hayut (the Chief Justice of the Supreme Court of the State oflsrael), YosefMeir Cohen (the former head of the Mossad), Dr. Kenneth Davis (President and CEO of defendant Mount Sinai Health System, Inc.), and Dr. David Reich (President and Chief Operating Officer of Mount Sinai Hospital), alleging that these individuals were co- conspirators in a plot to torture and murder her. As pertinent here, plaintiffs complaint in the Federal Action alleged that on June 11, 2020, she published posts on Facebook and Linkedin exposing corruption in Israel’s Supreme Court (NYSCEF Doc. No. 107 [Compl. at iJ18]). As a result of these posts, plaintiff received a “threatening visit from what appear[ed] to have been Mossad assassins” on June 30, 2020, “[arriving] in a run-down van with the Mount Sinai Hospital
logo, which, upon information and belief, was not a real Mount Sinai Hospital van” (Id. at iJiJ23,25-26]). Plaintiff subsequently contacted Dr. Kenneth Davis and Dr. David Reich to confirm whether Mount Sinai Hospital sent these individuals and, if so, for what purpose (Id.). These doctors confirmed that Mount Sinai did send two clinicians to plaintiffs home, based on a referral from NYC Well (Id. at iJ26). Plaintiff alleged that these doctors were bribed to lie to her (Id. at iJ25).

During the Federal Action, plaintiff raised concerns regarding Liu’s conduct, submitting a letter application to United States District Judge John P. Cronan seeking leave to file a motion for the commencement of a criminal contempt proceeding against Liu
for her misbehavior in this action, including her filing knowingly false statements
with the Court in an attempt to cover-up blatant perjury [by Sara Kluge] and what
the facts clearly indicate was an attempted assassination attack on me on June 30, 2020.

As the facts in the Complaint show, the Sinai Defendants facilitated the provision of false information to me by the Mount Sinai Health System regarding what was, as the facts clearly indicate, an attempted assassination attack on me by Mossad operatives who arrived for me in a run-down, fake-looking van with the Mount Sinai Hospital logo on June 30, 2020 (See Doc. No. 112 [Pre-Motion Conference Request]).”

“Plaintiff has also failed to state a claim under Judiciary Law §487 (Id.). That statute
provides that “an attorney or counselor who [i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party … is guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action” (Judiciary Law §487[1]). However, insofar as the Opinion and Order in the Federal Action “undisputedly addressed the instant allegations raised by the plaintiff … and found them to be without merit” plaintiff’s claim cannot survive (God’s Battalion of Prayer Pentecostal Church, Inc. v Hollander, 24 Misc 3d 1250(A) [Sup Ct, Nassau County 2009] [internal citations and quotations omitted], affd, 82 AD3d 1156 [2d Dept
2011] lv to appeal denied 17 NY3d 714; see also Mtge. Elec. Registration Sys., Inc. v McVicar, 203 AD3d 919 [2d Dept 2022]). Even ignoring the foregoing, the complaint’s allegations regarding Liu’s purportedly deceptive acts “are conclusory and factually insufficient” (Shaffer v Gilberg, 125 AD3d 632, 635-36 [2d Dept 2015] [internal citations omitted]). Finally, plaintiff’s Judiciary Law §487 claim “must fail, as plaintiff cannot establish that [she] was deceived by the allegedly false [documents], or that [she] suffered any damages proximately caused by such deceit perpetrated on [her] or on the court” (O’Connor v Dime Sav. Bank of New York, F.S.B., 265 AD2d 313, 313-14 [2d Dept 1999] [internal citations omitted]).”

Sang Seok Na v Malik & Assoc., P.C. 2023 NY Slip Op 30831(U) March 20, 2023 Supreme Court, New York County Docket Number: Index No. 100962/2017 Judge: David B. Cohen is an example of the proverb “too many cooks spoil the broth.” Simply read through the history to see how this happens.

“This malpractice action arises from legal representation plaintiff received in a personal
injury action he commenced in 2003 against Greyhound Lines Inc. (Index no. 13453/03 [Sup Ct, Queens County]) (NYSCEF 137-139), which had the following procedural history, according to a decision on plaintiff’s motion to restore it to active status:

This action was stricken from the trial calendar on May 10, 2006. A motion to restore was filed on April 10, 2007 and subsequently withdrawn on October 16, 2007. In January 2008, plaintiff changed attorneys for the fourth time and retained the firm of Sapone &
Schietroma, P.C. By letter dated January 28, 2008, counsel for the defendant requested
responses to outstanding discovery and the rescheduling of plaintiff’s deposition and
physical examination. In response, plaintiff’s attorney, Paul Schietroma, indicated further discovery would be provided once his file was reconstructed. During the remainder of 2008, plaintiff made inquiries into retaining new counsel to pursue this action and an additional medical malpractice claim. In December 2008, the firm of Sapone & Schietroma, P.C. was dissolved and plaintiff determined that he would continue to be represented by Mr. Schietroma in this matter. It was not until May 2009 that Mr. Schietroma discovered that the case had been stricken from the calendar. An oral request made to defense counsel in June 2009 to consent to restoration of the case was refused.

Thereafter, the motion to restore was filed in March 2010, and was subsequently denied, on the ground that:

While counsel may have experienced uncertainty concerning his continued representation of plaintiff that was further complicated by the dissolution of his firm, it is clear that no diligent efforts were undertaken to determine the status of this case until May 2009. Outstanding discovery was never provided to the defendant. In addition, even after defendant’s refusal to consent to restore this matter, Mr. Schietroma waited until March 2010 to serve this motion. As a result, plaintiff has failed to demonstrate a reasonable excuse for the delay or rebut the presumption of abandonment. Moreover, since nine years have now elapsed since the accident occurred, the defendant would be prejudiced if this action were restored to the trial calendar.
( citations omitted).

In October 2011, the Appellate Division, Second Department upheld the dismissal of the
Greyhound action (88 AD3d 980 [2d Dept 2011]), and between June 2012 and December 2014, plaintiff commenced three legal malpractice actions in various state courts related to the dismissal, which are in issue here and discussed further (infra., II).
In April 2015, plaintiff signed a retainer agreement with the Malik defendants, by which
he retained them in connection with his pending legal malpractice actions (along with a medical malpractice case which is not relevant to this action), and they agreed to file opposition and/or a cross motion to two pending motions in the malpractice actions, as well as to “review entire file and research issues presented” (NYSCEF 85). Defendant Jamil is an attorney who worked for the Malik defendants on plaintiffs cases (NYSCEF 190). In July 2017, plaintiff, self-represented, commenced this action against defendants, asserting, among other things, claims of legal malpractice, fraud, fraudulent concealment, negligent misrepresentation, negligence, breach of fiduciary duty, and breach of contract (Doc No. 191).”

” In June 2012, plaintiff commenced a legal malpractice action against Sivin & Miller, LLP
(Firm No. 1), Sapone & Schietroma, P.C. (Firm No. 2), Schietroma, P.C. (Firm No. 3), and
Schietroma, individually. According to the justice presiding in the matter, plaintiff alleged that Firm No. 1 failed to prevent the Greyhound action from being stricken from the calendar and eventually dismissed, and that Firm Nos. 2 and 3 failed to inform him of the action’s status and to move timely to restore it (index no. 701527/13, NYSCEF 28).
Firm No. 1 moved for summary judgment in the action in October 2013, which plaintiff
did not oppose (id.). The motion was granted on the ground that plaintiffs malpractice claim was barred by the applicable statute of limitations, and plaintiffs claims against Firm No. 1 were thus severed and dismissed (id). It does not appear that plaintiff appealed this decision.

In February 2015, Firm Nos. 2 and 3 and Schietroma (collectively, the Schietroma
defendants) moved for summary dismissal of the complaint against them (id., NYSCEF 41). The motion was returnable in March 2015, and later adjourned to May 2015 (id., NYSCEF 56). In April 2015, plaintiff retained Malik and Malik P.C. as his attorneys (id., NYSCEF 57), and in June 2015, Malik submitted opposition to defendants’ summary judgment motion (id., NYSCEF 60). In September 2015, plaintiff discharged Malik as his attorney and elected to proceed prose (id., NYSCEF 65).

By decision and order dated September 17, 2015, the summary judgment motion was
granted as the Schietroma defendants demonstrated that plaintiff was unable to prove that he would have prevailed in the Greyhound action but for their alleged negligence, and plaintiff failed to raise a triable issue (id., NYSCEF 67). Plaintiff appealed the decision on his own (id., NYSCEF 72).

In July 2018, the Appellate Division, Second Department, affirmed the dismissal, finding
that plaintiff failed to raise a triable issue in his opposition papers as his arguments consisted “entirely of speculation and conclusory assertions.” (163 AD3d 597 [2d Dept 2018]).”

Jose V. v Smiley & Smiley LLP 2023 NY Slip Op 01367 Decided on March 16, 2023 Appellate Division, First Department is a consolidated

Simmons v Jones Law Group, LLC 2023 NY Slip Op 01316 Decided on March 15, 2023
Appellate Division, Second Department recites some simple and well-settled principles. Nevertheless, interpretation turns on a short and not deeply discussed issue. The client fires you, but the court will not let you go. What to do?

“In February 2014, the plaintiff, Juanita Simmons, retained the defendant Jones Law Group, LLC (hereinafter Jones Law), to defend her and her business in a personal injury action (hereinafter the underlying action). On February 18, 2015, Simmons purportedly discharged Jones Law during a telephone conversation with the defendant Andrew P. Jones. Although a letter dated March 23, 2015, memorializing this discharge was purportedly sent to Simmons for her signature, she never executed it. Jones Law thereafter filed three separate ex parte motions pursuant to CPLR 321 for leave to withdraw as counsel for Simmons and her business. Those motions were all denied.

On September 26, 2016, Simmons failed to appear for trial, either personally or by counsel, and an inquest was held. Subsequently, a judgment was entered against Simmons and her business in the principal sum of $357,460. Although Simmons and her business later moved, inter alia, to vacate the judgment entered upon their default, the Supreme Court denied that branch of the motion in an order dated October 18, 2018, upon determining that Simmons and her business lacked a reasonable excuse for the default.

On July 8, 2019, Simmons commenced the present action against Jones Law and Andrew P. Jones, inter alia, to recover damages for legal malpractice and breach of contract. The defendants moved, among other things, pursuant to CPLR 3211(a)(5) to dismiss those causes of action as barred by the doctrines of res judicata and collateral estoppel or, alternatively, to dismiss the legal malpractice cause of action as time-barred. In an order entered June 29, 2021, the Supreme Court, inter alia, denied those branches of the motion. The defendants appeal.”

“The Supreme Court properly determined that the present action was not barred by the doctrine of res judicata. The causes of action asserted by Simmons in the present action do not arise out of the same transaction or series of transactions as those raised in the underlying action, sounding in premises liability (see Cullen v Moschetta, 207 AD3d 699, 700; Vigliotti v North Shore Univ. Hosp., 24 AD3d 752, 754). Moreover, Simmons’s claims could not have been raised in the underlying action, since the defendants were not parties in that action and were not in privity to any of the parties (see Cullen v Moschetta, 207 AD3d at 700; Mosher v Baines, 254 AD2d 467).”

“Contrary to the defendants’ contention, the issue to be resolved in the present action is not identical to the issue decided in the October 18, 2018 order issued in the underlying action (see Weiss v Manfredi, 83 NY2d at 976; Mosher v Baines, 254 AD2d 467, 467). The issue decided in that order was whether Simmons and her business proffered a reasonable excuse for their default in appearing at trial. In contrast, at issue in the present action is whether the defendants were negligent in their representation of Simmons (see Weiss v Manfredi, 83 NY2d at 976). Since there is no identity of issue, Simmons is not collaterally estopped in this action.

“On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired” (Tulino v Hiller, P.C., 202 AD3d 1132, 1134-1135). “‘An action to recover damages arising from legal malpractice must be commenced within three years, computed from the time the cause of action accrued to the time the claim is interposed'” (Joseph v Fensterman, 204 AD3d 766, 769, quoting Schrull v Weis, 166 AD3d 829, 831; see CPLR 214[6]). “Accrual is measured from the commission of the alleged malpractice, when all facts necessary to the cause of action have occurred and the aggrieved party can obtain relief in court” (Farage v Ehrenberg, 124 AD3d 159, 164; see McCoy v Feinman, 99 NY2d 295, 301).

Here, the defendants failed to satisfy their initial burden of demonstrating, prima facie, that the cause of action alleging legal malpractice was untimely. Since the alleged malpractice occurred on September 26, 2016, when the defendants failed to appear for trial on Simmons’s behalf, this action, commenced less than three years later, was timely.”

Ankney v Gjoni Law, P.C. 2023 NY Slip Op 30733(U) March 9, 2023 Supreme Court, New York County Docket Number: Index No. 156246/2022 Judge: Lisa S. Headley and Ankney v Gjoni Law, P.C. 2023 NY Slip Op 30734(U) March 10, 2023 Supreme Court, New York County Docket Number: Index No. 156246/2022 Judge: Lisa S. Headley, (same caption, different defendants) are puzzling, but ultimately turn on procedural defects in this pro-se litigation. Why the failure to present proof of “no texting” did not state a cause of action seems lost in the procedural morrass.

On July 27, 2022, plaintiff filed this action against Gjoni Law, P.C., Gencian Gjoni, Esq.,
Haicken Law, and Matthew Haicken, Esq., (“Defendants”) for alleged legal malpractice arising out of the Defendants’ prosecution of plaintiffs underlying action to recover for personal injuries sustained when plaintiffs bicycle collided with a motor vehicle. Plaintiff hired Defendant Matthew Haicken for plaintiffs personal injury action against the motorist. During discovery in the underlying action, the motorist alleged that plaintiff was inattentive and was texting on his phone prior to the collision, however plaintiff claims he provided his attorney, Defendant Haicken, with time-stamped evidence that he was not texting at that time. As a result, upon a motion for summary judgment on liability, the Court determined that plaintiff established that the motorist had violated
local traffic laws, however, plaintiff failed to establish he was free from comparative negligence in this accident. Therefore, the Court granted plaintiffs summary judgment motion on the issue of liability and ordered a trial on the questions of”[c]omparative fault of the plaintiff, if any.”

Plaintiff alleges that after the issuance of the summary judgment order, Defendant Haicken referred the underlying personal injury case to Defendant Gjoni to handle the trial on the issue of comparative liability. Plaintiff asserts, inter alia, that he informed Defendant Gjoni that he had phone records that would refute the defense claim that plaintiff was using his phone at the time of the collision.

At the personal injury trial, plaintiff alleges that the attorneys for the motorist presented witnesses and evidence to suggest that plaintiff was texting when the accident occurred in order to prove their affirmative defense of comparative liability. Plaintiff claims that his attorney, Gjoni questioned the driver of the motor vehicle, and challenged his credibility, and then Gjoni rested the plaintiffs case without calling plaintiff or the responding police to testify or offer the phone records or photographic evidence. After deliberation, the jury determined unanimously that plaintiff was negligent and 99% responsible for the accident. Plaintiff also alleges that Gjoni
advised plaintiff that he had half an hour to decide whether to accept a $2,500.00 settlement offer, and Gjoni did not advise plaintiff as to alternative options available to him. Subsequently at the trial on damages, plaintiff alleges, again that his attorney, Gjoni called no medical expert, and the jury unanimously awarded no damages.”

“

This Court finds that plaintiff’s complaint and the amended complaint both fail to assert
facts in support of any element of the negligence and breach of fiduciary claims. Plaintiff did not establish or demonstrate the negligence of counsel, proximate cause of their loss, and proof of actual damages. On the contrary, plaintiff relies on allegations and inferences which do not provide for an enforceable right ofrecovery. Id at 29 N.Y.3d 137, 142. Furthermore, plaintiff has failed to demonstrate that he would have not sustained losses “but for” defendant’s negligence and has not demonstrated to the court that plaintiff would have achieved a better outcome at trial.

On a motion brought under CPLR §3211 (a)(l) dismissal is warranted when documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law.” Allegations that are “bare legal conclusions” or that are “inherently incredible or flatly contradicted by documentary evidence” are not sufficient to withstand a motion to dismiss.” RTW Retailwinds, Inc. v. Colucci & Umans, No. 150794/20, 2023 WL 1974320 (N.Y. App. Div. Feb. 14, 2023). Here, as evidenced by NYSCEF Doc. No. 11, plaintiff entered into a retainer agreement with the Haicken Defendants, which established that the Haicken Defendants had the right to associate and allow as trial counsel, Defendants Gjoni.

Plaintiff has not demonstrated how the Haicken Defendants, by assigning trial counsel,
caused plaintiff’s alleged damages. Pursuant to a motion brought under CPLR §3013 “statements in pleadings shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.” Here, plaintiff has coupled the defendants in his complaint without ascertainable causation. More specifically, the complaint lacks facts to support a showing that a different trial counsel would have achieved a better outcome.”

(from the second decision) “This Court finds that the plaintiff’s complaint and the Amended complaint both fail to assert facts in support of any element of the negligent and breach of fiduciary claims. The defendant has demonstrated by competent evidence, and attached as Exhibits A and C of the motion (seq. no. 001), as proof of plaintiff’s duplicative filings of the complaint, both filed by counsel and by prose plaintiff. (See, NYSCEF Doc. No. 5 and 7). Here, plaintiff has failed to establish the negligence of counsel, proximate cause of his loss, and proof of actual damages. Furthermore, plaintiff has failed to demonstrate that he would have not sustained losses “but for” defendant’s negligence and has not demonstrated to the court any alternative manner by which plaintiff would have been successful in winning his case.
A court has broad discretion in considering whether to dismiss an action, pursuant to CP LR §3211 (a)(4), on the ground that another action is pending between the same parties on the same cause of action. Whitney v. Whitney, 57 N.Y.2d 731, 732 (1982). Plaintiff’s complaints only differ in regard to the signature lines on the submitted complaints. The first complaint was signed by plaintiff’s counsel, and the later dated complaint was signed by pro se plaintiff. As such, both the complaint and the Amended complaint must be dismissed because plaintiff has impermissibly filed two complaints
addressing two very same issues. (See, NYSCEF Doc. No. 5-7).In opposition, the plaintiff does not refute the arguments of duplicate filings, or state the status of those cases.”

The mathematics of calculating the statute of limitations in light of the Covid tolling periods is discussed in Lewner v Dahill 2023 NY Slip Op 30629(U) February 28, 2023
Supreme Court, New York County Docket Number: Index No. 805366/2021 Judge: Leslie A. Stroth. This decision serves as a template in adding days to the underlying statute of limitations for cases subject to Covid tolling between March 20, 2020 and November 2, 2020.

“The instant motion arises out of an action to recover damages for alleged breach of contract, legal malpractice, and breach of fiduciary duty. Plaintiff Charles Lewner (plaintiff), represented . by counsel, alleges that defendants William Dahill and Wollmuth Maher & Deutsch, LLP (together, defendants) failed \o properly represent-him in two separate legal proceedings – an Article 81 guardianship proceeding seeking guardianship of the person and property of his late father and a proceeding concerning the estate of his late mother.”

“Here, all claims are time-barred. With respect to plaintiff’s first cause of action, the Article 81 guardianship proceeding concerning plaintiff’s late father, plaintiff alleges in his amended complaint that defendants committed malpractice in agreeing to the terms of a stipulation involving the management of real property dated January 20, 2017, which was so-ordered by Honorable Tanya R. Kennedy. Defendants assert that the claim accrued on January 20, 2017 and that plaintiff was required to commence the subject action by January 20, 2020. Plaintiff commenced this action on November 18, 2021 – 1 year, 9 months, and 29 days after the statute of limitations expired. Additionally, even if this cause of action accrued following plaintiff’s counsel’s relief from representation on June 6, 2017 and even considering the ensuing 30-day stay, plaintiff’s claim is still untimely.”

“The Court notes that on March 20, 2020, Governor Andrew M. Cuomo issued Executive
Order (EO) No. 202.8, which tolled the statute of limitations on civil cases due to the COVID-19 pandemic. 1 This EO was extended until November 3, 2020.2 Regarding plaintiffs first cause of action, as discussed above, defendants correctly assert (and plaintiff has not objected) that the statute of limitations expired on January 20, 2020. This was before the EO was issued and, therefore, stands as the proper date of expiration of this claim. Even if the Court were to consider the accrual date to be July 6, 2017, after the 30-day stay, the statute of limitations would have expired on July 6, 2020 and plaintiff would have had slightly over three months to commence this action at the time the EO was issued. Therefore, the statute of limitations after the EO tolling period would have expired in February 2021, and given that the complaint was filed on November 18, 2021, it was still untimely.

Regarding plaintiffs second cause of action, again, the date of expiration of the statute of limitations was June 23, 2020. This fell during the EO’s tolling period. When the EO was put in place on March 20, 2020, plaintiff had approximately three months remaining to bring this claim before it would have expired on June 23, 2_020, but the tolling period moved the date of expiration to three months after the EO ended on November 3, 2020, or February 3, 2021. Plaintiff did not commence this action until November 18, 2021. Therefore, this claim is still untimely despite the EO tolling period.”

Mensch v Calogero 2023 NY Slip Op 30621(U) February 28, 2023 Supreme Court, New York County Docket Number: Index No. 155795/2022 Judge: Dakota D. Ramseur reaches an unusual outcome where the legal malpractice claim is dismissed yet the breach of contract claim remains viable.

“According to the complaint, on October 9, 2017, plaintiff retained defendant Cohen Clair, Lans Greifer, Thorpe Rottenstreich, LLP (law firm), including Michael Calogero and Bernard E. Clair in the underlying divorce action between plaintiff and her ex-husband in New York Supreme Court, New York County, entitled Peter Mensch v. Louise Mensch (index no. 309381/2017). The parties in the underlying divorce action contested the division of their assets. The divorce action settled pursuant to the July 19, 2019, filing of the so-ordered stipulation, providing for, among other things, the division of the parties’ marital property.

Plaintiff alleges that she discovered certain state and federal income tax overpayments in the total amount of $1.1 million made from accounts that were, at the time of the overpayment, parts of the marital estate, after entering into the stipulation. Plaintiff alleges that the law firm’s failure to discover the tax refund amounts and the omission of those amounts in the stipulation constitute legal malpractice. Plaintiff further alleges that defendants failed to adequately divide the estate as required by the retainer agreement between plaintiff and defendants. The retainer agreement drafted by defendants and executed by both parties, describes the scope of services to
be provided by defendants to plaintiff, including that defendants “[ w ]ill explain to you the laws pertinent to your situation, available options and the attendant risks.”

Plaintiff commenced this action alleging that defendants, through omission and negligent acts, failed to advise plaintiff that there was $1. l million in tax overpayments made from accounts which were part of the marital estate or that a potential tax refund would be an asset class to investigate. Plaintiff further alleges that completely failed to take into account any possibility of marital funds being held by any tax authority in the drafting and negotiation of the Settlement Agreement. As a result, plaintiff alleges, she entered into the settlement agreement without knowing the true value of the marital assets. Had she known, plaintiff alleges, she would not have ent.ered into the agreement.

In relevant part, the stipulation states that defendants have engaged in extensive
discovery in the underlying action. The stipulation further states that:
“[b ]oth parties expressly acknowledge that after due deliberation and careful
analysis, they have instructed their attorneys not to continue to trial in this
Action, or to seek further disclosure, inspection, depositions, or investigation of
the other’s assets and income. Each party acknowledges that he/she is sufficiently
satisfied with the disclosure received to date”.”

” Here, plaintiff states a cause of action for legal malpractice against defendants by alleging that plaintiff retained defendants to represent her interest in the underlying divorce action against her ex-husband, that defendants were negligent in failing to conduct a basic line of necessary investigations and inquiry regarding tax liabilities or obligations of the marital estate, and as a result, defendants were unable to properly advise plaintiff and limited the ability of plaintiff to knowledgeably participate in the negotiations in the division of marital assets-reducing her portion of the assets divided ..However, defendants demonstrate that plaintiffs claim is precluded by the settlement
agreement. In DeGregorio v Bender, 4 AD3d 384, 385 [2d Dept 2004]), Appellate Division, Second Department reversed the lower court’s denial of the defendants’ motion for summary dismissal of plaintiffs claims for legal malpractice, finding that the claim was “[b]elied by the terms of the stipulation and her approval of those terms in open court” (id.). Specifically, the court in DeGregorio determined that “[t]he parties explicitly acknowledged that they had been advised by their respective attorneys of their right to disclosure regarding the value of their property and business interests, that certain disclosure had been conducted, and that to the extent it had not been conducted, they waived their right to any further disclosure” (id. at 385).

Here, like in DeGregorio, the stipulation indicates that plaintiff was satisfied with the
discovery received as of the date of the settlement of the underlying action and further, plaintiff explicitly waived the opportunity to investigate further into the assets that made up the marital estate (see Karakash v Trakas, 163 AD3d 788, 790 [2d Dept 2018] [“stipulation of settlement in the divorce action, and a transcript from the divorce proceeding on the day the stipulation was signed by the parties” … “flatly refuted the plaintiff’s allegation that the defendant had failed to engage in the necessary due diligence to determine.the identity and value of the marital assets involved in the underlying divorce action”]).”

“The Court declined to dismiss plaintiff’s claim for breach of contract. Defendants’
arguments concerning plaintiffs breach of contract claim are focused on the circumstance where a legal malpractice claim is predicated upon the same fact and seeks the same relief as a breach of contract claim (see Sabo v Alan B. Brill, P.C., 25 AD3d 420, [1st Dept 2006]; Schulte Roth & Zabel, LLP v Kassover, 80 AD3d 500,501 [1st Dept 2011]). In those circumstances, the breach of contract duty claim is duplicative and should be dismissed. However, as discussed above, plaintiffs legal malpractice claim is dismissed. As defendants’ do not argue an independent basis
to dismiss the breach of contract claim, that branch of defendants’ motion is denied.”

Aaglane v Sami 2023 NY Slip Op 30636(U) March 3, 2023 Supreme Court, New York County Docket Number: Index No. 151262/2019 Judge: Mary V. Rosado is an interesting variant on the more usual case where Plaintiff is being sued for fees and brings a legal malpractice case against the attorney. In that setting, collateral estoppel of res judicata issues arise. Here, where the attorney seeks to join a case against a different party for legal fees the Court denies the request.

“This case was commenced on February 5, 2019 and arises out of Defendant’s alleged
malpractice during the course of her representation of Plaintiff in her divorce action against nonparty Khitri (NYSCEF Doc. 1). On January 8, 2021, Defendant moved for summary judgment dismissing Plaintiffs Complaint (NYSCEF Doc. 9 or “Mot. Seq. 001 “) Plaintiff cross-moved seeking to compel Defendant to respond to certain discovery demands (NYSCEF Doc. 11 ).”

“Defendant makes the instant motion pursuant to CPLR § 602(a) (NYSCEF Docs. 82-83).
CPLR § 602(a) provides “when actions involving a common question of law or fact are pending before a court, the court, upon motion, may order a joint trial of any or all the matters in issue … and may make such other orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.” Where cases involve different facts, witnesses, claims, injuries, and defendants “individual issues predominate … so as to preclude the direction of a joint trial” (Gillard v Reid, 145 AD3d 446 [1st Dept 2016] quoting Abbondandolo v Hitzig, 282 AD2d 224, 225 [1st Dept 200 I]). Moreover, where actions are at different procedural postures a motion for a joint trial should not be granted (Maurer v Maurer, 96 AD3d 417,417 [1st Dept 2012]). Further, where two
actions involve different issues and disparate legal theories, it has been held there is a risk of confusing and “rendering the litigation unwieldy” (Ka/adze v Ocean Park Acquisition, L.P., 203 AD3d 1151 [2d Dept 2022] citing Gillard at 446).

The instant action is a legal malpractice action by Plaintiff against Defendant, her former lawyer in a matrimonial action (NYSCEF Doc. 1). The factual issues have to do with Defendant’s alleged abandonment of Plaintiff’s case; alleged loss of critical documents belonging to Plaintiff, Defendant’s alleged breach of confidentiality, Defendant’s prolonged absence from the country on the eve of trial, Defendant’s alleged failure to investigate key assets in the matrimonial action, Defendant’s alleged misappropriation of client funds, Defendant’s alleged failure to provide Plaintiff with a statement of client’s rights and responsibilities, and Defendant’s alleged lack of
expertise and experience with contested divorce cases (NYSCEF Doc. 1 at 116-42). On the other hand, the case Defendant seeks to join for trial involves $5,000 in allegedly unpaid attorneys’ fees which Khitri allegedly agreed to pay Defendant in an open court stipulation in the matrimonial action.

Here, the legal theories and issues are wholly separate. Moreover, the only party in
common in the two actions is Defendant. Khitri is not a party to this action, and Plaintiff is not a party to the Civil Court action. Further, the Civil Court action is far more simple and seeks damages in a far lesser sum than the instant legal malpractice action, and for that reason is in Civil Court which is the designated forum for expedited relief in disputes over relatively minor sums. Here, the parties have made multiple discovery motions and it appears depositions have not even begun. The parties have failed to enter into any discovery orders since their preliminary conference order dated November 18, 2021. As such, the procedural postures of the two actions are completely
different. These factors militate towards denying Defendant’s motion.”