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.”

DeFranco v Napoli Bern Ripka Shkolnik LLP 2023 NY Slip Op 30952(U) March 28, 2023
Supreme Court, New York County Docket Number: Index No. 150188/2018 Judge: James E. d’Auguste describes what happens when cases are shuttled between the initial attorneys and “trial counsel”, which in this particular situation means a law firm that took all of the initial attorneys’ cases and worked them up for trial. The work in this unusual auto accident case was not successful.

“Plaintiffs GinaMarie and Daniel DeFranco are spouses who have resided at all relevant
times on Staten Island (see affidavit of GinaMarie [GinaMarie] DeFranco, sworn to December 11, 2021 [GinaMarie AffJ, i!i!l-2 [NYSCEF Doc No. 152]). Plaintiffs allege that GinaMarie was injured on May 21, 2003, driving through the intersection of Amboy Road and Barclay A venue on Staten Island, when the car she was operating ran over a “live electrical wire/power line” lying on the road surface, which shocked her and caused her, among other harms, serious, traumatic neurological, spinal cord, and
psychological injuries (second amended complaint [SAC] [NYSCEF Doc No. 104], ,r,i47-50).
Plaintiffs assert that GinaMarie’s injuries were proximately caused by the negligence of
Consolidated Edison Company of New York, Inc. (Con Ed) which, as the public utility service company entrusted to provide electricity to the City of New York, is obligated to maintain the safety of the City’s electrical power system (id.).”

“The Underlying Action went to trial in early January 2015. On or about January 13,
2015, the trial concluded with a verdict wholly in favor of Con Ed (SAC, if,I59-60).
Plaintiffs allege that they did not prevail in the underlying personal injury action because their case had not been properly prepared for, or presented at, trial. They fault their attorneys for failing to present certain available expert and non-expert evidence at trial to demonstrate Con Ed’s liability. Plaintiffs contend that if such evidence had been properly presented at trial, a verdict in their favor would have resulted (id. 1169-70).

For example, plaintiffs allege that there were certain marks left on GinaMarie’s shoes and the tire of GinaMarie’s car, both of which were caused by the electrical strike incident, but their trial attorneys failed to call a forensic expert to establish that these marks were “indicative of contact with high voltage/high amperage electricity” (id. 172). Plaintiffs also allege that trial counsel failed to call a physician to establish that GinaMarie’s injuries were consistent with an electrical shock, and an expert on electricity to establish Con Ed’s causation and fault in GinaMarie’s injury (id. 1~!73-74). Plaintiffs also fault trial counsel for failing to call non-expert witnesses, such as Daniel DeFranco (Daniel) to testify about, among other things, the particulars of GinaMarie’s accident and her resulting injuries, and for failing to call witnesses present at the
scene of the accident, including “emergency first responders” (id. i!178-80).”

“Napoli Defendants argue that dismissal of the SAC is warranted because plaintiffs’
allegations of malpractice are no more than unfair “second-guessing” of their trial strategy. Napoli Defendants also argue that plaintiffs have failed to properly plead that their alleged negligence was the “but for” causation of their alleged damages. Finally, Napoli Defendants argue that claims asserted individually against NBRS partners Paul Napoli and Marc Bern are barred by Section 26(b) of New York’s Partnership Law.

As to the first point, the affidavits that plaintiffs submitted in opposition are sufficient to
remedy the problems with their allegations in the SAC with respect to Napoli Defendants. In her affidavit, GinaMarie identifies several e-mail exchanges she had with attorneys Paul Napoli and Vincent Gonzalez of NBRS. In the earliest chain, dated June 4, 2012, Mr. Napoli told GinaMarie that he had discussed her case with Mr. Gonzalez “a number” of times, that they were putting the case together for trial, and that they had “engaged several experts to assist” them (GinaMarie aff [NYSCEF Doc No. 145], ~10 and ex A thereto).

In the second chain, begun on the morning of November 24, 2014, GinaMarie e-mailed
Mr. Gonzalez, a senior associate attorney ofNBRS, seeking information about the status of her case. Mr. Gonzalez responded the next day, apologized for the delay, and explained that he had “a medmal trial [ dropped] in [his] lap with no advance notice. Everything came to a halt” (id 11) and ex B thereto). Mr. Gonzalez also complained about the “shenanigans” going on at his law firm, which made conditions so difficult that “[i]t takes weeks to get a simple $45 check” (id ,i12). GinaMarie explained that she believed Mr. Gonzalez was referring to how the dissolution ofNBRS was adversely “affecting the day-to-day operation of the law firm” (id ,i,i12-13). GinaMarie stated that she suspects that these difficulties were the reason no experts were called to testify at her trial, even though Mr. Napoli had told her back in 2014 that experts had already been engaged (id. ill3).

In the third chain, beginning on Tuesday, January 6, 2015, Mr. Gonzalez e-mailed
plaintiffs to inform them that he had begun to pick a jury, and that he expected the trial to begin on that Thursday, January 8, and so wanted to meet with GinaMarie on Wednesday morning, to prepare her as the first witness (id. ,14 and ex C thereto). GinaMarie recalled that she had not met Mr. Gonzalez before this meeting, held the day before trial, and that the meeting lasted about an hour (id 115). GinaMarie responded, confirmed their Wednesday meeting, and asked whether she should bring anything, such as the shoes she wore the day of the accident (which bore a “swirl mark” from the shock she received), the tire from her car, which was also marked by the shock, or empty pill bottles for the medication she was taking. Mr. Gonzalez replied:
“As I explained to you before, we need to establish LIABILITY. Without liability
there is no case. Therefore, all the pills in your medicine cabinet won’t help. As you
already know, we don’t have an expert on the issue of defective or inadequate
transformer or improper maintenance and repair. That leaves us with Res Ipsa
Loquitur and the possibility that overgrown tree branches caused the wires to be
pulled from the transformer. We will discuss our options on Wednesday. The
eyewitnesses have been subpoenaed ….
We will need the doctors for Wednesday and Thursday of next week. No excuses.
Dr. Sharon and Shiau both have to testify if we get to that point. We can call
additional doctors but Sharon and Shiau are absolutely necessary.

I will have Kenia contact them tomorrow. However, I recommend that you speak
with them and make sure they know they have to appear. We are not going to get
another chance. This trial will be concluded by the end of the month”
(id. ,i,i 16-19 and ex C thereto [emphasis in original]).

In the last e-mail in this chain, Mr. Gonzalez instructed GinaMarie on what she should
bring with her to Court. He also stated that her “biggest obstacles are to explain how you drove to your house from the scene and you can’t remember; why you left the scene; why you didn’t go to the hospital on the day of the incident; how you got shocked” (id. ex C). Among other things, GinaMarie stated that although Mr. Gonzalez noted that Drs. Sharon and Shiau would “absolutely have to testify,” they were never called at trial (id. ,it 7), and that she believes that had the doctors testified about how electric shock caused her injuries, they would have succeeded in establishing liability at trial (id.). She also asserted that plaintiffs would have likely prevailed if the experts Mr. Napoli claimed to have engaged had been used at trial (id. ,II 0), or if she had been afforded more time to prepare her testimony (id. ,r15).”

Mazzone v Alonso, Andalkar & Facher, P.C. 2023 NY Slip Op 01746 Decided on March 30, 2023 Appellate Division, First Department shows us that summary judgment in favor of plaintiff is a fragile creature, and here was subject to abrupt and complete reversal. The AD not only took away summary judgment from plaintiff, it went and ordered dismissal for one of the defendants.

“Judgment, Supreme Court, New York County (Andrew Borrok, J.), entered July 27, 2022, awarding plaintiff the total amount of $731,156.19 against defendants Alonso, Andalkar & Facher, P.C., Mark J. Alonso, Esq., and Catania T. Facher, Esq. (collectively, the AAF defendants), and bringing up for review an order, same court and Justice, entered on or about March 9, 2022, which to the extent appealed from as limited by the briefs, denied defendant Donna M. Russo’s motion for summary judgment dismissing the complaint and AAF defendants’ cross claim against her, denied AAF defendant’s motion for summary judgment dismissing the complaint as against them, and granted plaintiff’s motion for summary judgment as against AAF defendants, unanimously modified, on the law, the judgment vacated, Russo’s motion granted and plaintiff’s motion for summary judgment against the AAF defendants denied, and otherwise affirmed, without costs. The Clerk is directed to enter judgment dismissing the complaint and AAF defendants’ cross claim as against Russo. Appeals from the order unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Plaintiff’s motion for summary judgment on her legal malpractice cause of action against the AAF defendants should have been denied. Issues of fact exist as to whether, inter alia, AAF’s advice regarding solicitation was reasonable under the circumstances and in harmony with Bessemer Trust Co., N.A. v Branin (16 NY3d 549 [2011]); whether plaintiff has shown the requisite injury, given that she faced greater losses had she been fired by RBC, which would have triggered her obligation to repay a $741,827 loan; whether AAF’s advice was in any event a proximate cause of plaintiff’s injury, given that she is alleged to have disregarded it; and whether Schusterman materially breached their arrangement thereby excusing plaintiff’s continued performance thereunder.

Russo was entitled to summary judgment dismissing the complaint and the cross claim of the AAF defendants against her (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). Plaintiff did not oppose Russo’s motion and in opposing the motion, the AAF defendants did not directly dispute that Russo’s expert had shown, prima facie, that her advice comported with the standard of care, nor did they submit any expert evidence analyzing Russo’s actions or argue that expert evidence was not required to rebut Russo’s showing on departure from the standard of care (see Cosmetics Plus Group, Ltd. v Traub, 105 AD3d 134, 141 [1st Dept 2013], lv denied 22 NY3d 855 [2013]).”

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]).”