Successfully pleaded Judiciary Law § 487 claims are not a given.  Default judgments are even rarer, but here is one example.  In Ezra Huber & Assoc., P.C. v Genevieve Lane Lopresti
2022 NY Slip Op 06910 Decided on December 7, 2022 Appellate Division, Second Department the default judgment was affirmed.

“The plaintiff commenced this action to recover damages for prima facie tort and violation of Judiciary Law § 487. After the defendant failed to timely answer the complaint, the plaintiff moved pursuant to CPLR 3215 for leave to enter a default judgment against the defendant upon her failure to answer the complaint or for a hearing on the issue of any reasonable excuse [*2]offered by the defendant. The defendant cross-moved, inter alia, to compel the plaintiff to accept her late answer. The defendant separately moved pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred. In an order entered February 16, 2018, the Supreme Court denied the plaintiff’s motion, in effect, granted that branch of the defendant’s cross motion which was to compel the plaintiff to accept her late answer, and granted the defendant’s separate motion pursuant to CPLR 3211(a)(5) to dismiss the complaint.

Thereafter, the plaintiff moved for leave to renew and reargue its motion and its opposition to the defendant’s cross motion and separate motion. In an order entered March 25, 2019, the Supreme Court denied the plaintiff’s motion.

The plaintiff appeals from the orders entered February 16, 2018, and March 25, 2019, respectively.

“A defendant who has failed to timely answer a complaint and who seeks leave to file a late answer must provide a reasonable excuse for the delay and demonstrate a potentially meritorious defense to the action” (Bank of Am., N.A. v Viener, 172 AD3d 795, 796; see Jacobson v Val, 206 AD3d 803, 804). To avoid the entry of a default judgment upon the failure to answer the complaint, a defendant must make a similar showing (see Sadowski v Windsor Vil. Apts. Co., LLC, 200 AD3d 816, 817; Yuxi Li v Caruso, 161 AD3d 1132, 1133). “Whether a proffered excuse is reasonable is a sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits” (Nowakowski v Stages, 179 AD3d 822, 823 [internal quotation marks omitted]; see Jinwu Yu v Hong Qin Jiang, 205 AD3d 1012, 1013).

Here, the defendant failed to provide a reasonable excuse for her delay in answering the complaint, as her claims that her and her counsel’s respective medical issues prevented her from timely answering the complaint were vague and unsupported by any medical documentation (see PennyMac Corp. v Sellitti, 193 AD3d 959; Dankenbrink v Dankenbrink, 154 AD3d 809, 810; Salatino v Pompa, 134 AD3d 692, 693). Since the Supreme Court should not have granted that branch of the defendant’s cross motion which was to compel the plaintiff to accept her late answer, the defendant’s separate motion pursuant to CPLR 3211(a)(5) to dismiss the complaint was untimely, as a defendant must make this motion before service of the responsive pleading is required (see id. § 3211[e]; Wan Li Situ v MTA Bus Co., 130 AD3d 807, 808). Accordingly, the court should have granted that branch of the plaintiff’s motion which was pursuant to CPLR 3215 for leave to enter a default judgment against the defendant upon her failure to answer the complaint, denied that branch of the defendant’s cross motion which was to compel the plaintiff to accept her late answer, and denied the defendant’s separate motion pursuant to CPLR 3211(a)(5) to dismiss the complaint.”

Federal Ins. Co. v Lester Schwab Katz & Dwyer, LLP  2022 NY Slip Op 07149  Decided on December 15, 2022 Appellate Division, First Department is a case by the insurer versus its attorney arising from what was most likely a personal injury claim.  Overlooking the actual email sent by the law firm, Plaintiff sued for fraud.  That email ended the fraud claim, but the legal malpractice claim remains alive.

“Supreme Court correctly denied LSKD’s motion to dismiss the cause of action for legal malpractice. The verified complaint sufficiently alleges specific facts from which, if true, a factfinder could reasonably infer that, but for LSKD’s alleged negligence in conducting the insureds’ defense in the underlying action, plaintiff insurer would have achieved a better result in that litigation than the $4 million settlement to which it ultimately agreed. Stated otherwise, the question of proximate cause is not resolvable on this motion to dismiss (see Schroeder v Pinterest Inc., 133 AD3d 12, 26 n 7 [1st Dept 2015]).

The causes of action for fraud and negligent misrepresentation, however, should have been dismissed pursuant to CPLR 3211(a)(1). Both of these claims are based on the contention that LSKD obtained its assignment to defend the insureds in the underlying action by misrepresenting or omitting to disclose the fact that it had a conflict of interest as to the City of New York, a codefendant in the underlying action. This conflict prevented LSKD from pursuing a cross claim against the City, to the detriment of the insureds and their insurers. The theory that LKSD misrepresented or failed to disclose the existence of the conflict is conclusively refuted by documentary evidence, specifically, an April 16, 2013 email from LSKD to, inter alia, the claims adjuster who retained it, plainly stating:

“As discussed, we will accept this new assignment with the understanding that we will not assert cross claims against the City of New York. Our firm represents the City of New York in other matters and we are conflicted from asserting claims against them.”

In the context of the foregoing express disclosure of the conflict and consequent inability of LKSD to pursue a cross claim against the City, the communication of the same date that a search for possible conflicts had yielded negative results was not misleading. To the extent plaintiff contends that LKSD inaccurately minimized the

viability of a potential cross claim against the City, the complaint fails to allege particularized facts that this advice was given with deceptive intent so as to support a fraud claim.”

Pro-se litigation often raises difficult questions of whether attorneys (relying on regular practices) have said something deceitfully, or whether the Pro-se simply does not understand how litigation procedure works.  Delo v O’Connor  2022 NY Slip Op 34135(U)  December 7, 2022  Supreme Court, New York County  Docket Number: Index No. 652721/2022 Judge: Arlene P. Bluth is a good example.  Total confusion over how to commence a lawsuit resulted in tortured communications which led to more litigation.

“This action, in which plaintiff represents himself, relates to an underlying litigation in which plaintiff, also self-represented, sued non-party JPMorgan for employment-related issues.
Defendants here are the attorneys and law firm which represented JPMorgan in that case, which was commenced and settled in federal court. Here, plaintiff alleges that defendants made a misrepresentation to the federal court regarding an agreement for an extension of time to answer the complaint filed in that case. Ms. Queliz, representing JPMorgan, submitted a letter to the court requesting an extension to answer the complaint, stating that she had “consulted Plaintiff on [her] request, and he has given his consent for the additional time,” (NYSCEF Doc. No. 11). Plaintiff then submitted a separate letter stating Ms. Queliz made a misrepresentation to the Court, stating that there was a condition
that JPMorgan accept service, which was merely emailed to JPMorgan. After receiving both letters, U.S. District Judge Vernon S. Broderick issued an order granting JPMorgan’s request for an extension of time. ”

“Pursuant to CPLR 3211 (a)(1), the documentary evidence submitted indicates that Ms. Queliz did not misrepresent any facts in the underlying action. As Ms. Queliz attempted to
explain to plaintiff in her emails, plaintiff attempted to serve JPMorgan by emailing the summons and complaint. That, of course, is not a permissible way to effectuate service. Ms.
Queliz agreed to accept service this way and asked plaintiff to extend the time for JPMorgan to respond. Plaintiff agreed (NYSCEF Doc. No. 9 at 5). After this exchange, Ms. Queliz received from her client a request to waive service that was submitted by plaintiff after he sent the complaint to JPMorgan but before she came to an agreement with him. Ms. Queliz attempted to clarify whether there would be a waiver of service or an acceptance of service, and when plaintiff failed to communicate either, Ms. Queliz wrote to the court requesting an extension of time to answer. Plaintiff, self-represented, believed that because Ms. Queliz had all the documents, a waiver of service was not necessary. But this is not how service works; just because the defendants had the papers does not mean they were appropriately served under New York law.

In any event, even after receiving plaintiff’s letter alleging fraudulent conduct, Judge Broderick granted the extension. If plaintiff thought that decision was improper, then he should
have sought to vacate it or appeal that decision in the court where it occurred. Instead, plaintiff accepted it, settled that case and signed a release. The release, signed by plaintiff, states that plaintiff “knowingly and voluntarily releases [entities’ present and former attorneys], both individually and in their business capacities, to the full extent permitted by law, from all claims, [and] causes of action,” (NYSCEF Doc. No. 13 at 3). Despite releasing the attorneys, he sues them here.

Additionally, plaintiff failed to state a cause of action against the attorneys for a party with whom he settled an action. His claim that he would have received a default judgment for $2
million if defendants had not allegedly committed fraud upon the federal court is total speculation. He did not show that he properly served JPMorgan or adequately explain how this
Court can ignore the fact that plaintiff voluntarily settled the case. As defendants stated, iIf plaintiff believes there was fraudulent conduct during the course of litigation, then the
appropriate remedy is to pursue a vacatur of the stipulation of dismissal.”

Belair & Evans LLP v Rizzo  2022 NY Slip Op 06986  Decided on December 08, 2022  Appellate Division, First Department is an example of the Court taking things into its own hands and directing a show cause order why a counterclaim should not be dismissed.  Then the Court dismissed all the counterclaims.

“Order, Supreme Court, New York County (Frank P. Nervo, J.) entered July 12, 2021, which, to the extent appealed from, granted the court’s sua sponte motion to dismiss defendant’s counterclaims, unanimously modified, on the law, to reinstate the remaining counterclaims other than legal malpractice, and otherwise affirmed, without costs.

Plaintiff brought this action to recover unpaid legal fees incurred while defending defendant against an investigation and prosecution by the New York State Department of Health and its Office of Professional Medical Conduct (OPMC), which was ultimately settled by consent order. Defendant answered, asserting various counterclaims, including legal malpractice. Plaintiff replied to the counterclaims, asserting as an affirmative defense that documentary evidence contradicted the factual allegations pleaded in the counterclaims. The court directed the parties to show cause as to why the legal malpractice counterclaim should not be dismissed.

Defendant’s arguments regarding the timing of the court’s motion are unavailing. Motions to dismiss pursuant to CPLR 3211(a)(7) may be brought at any time (see CPLR 3211[e]), and plaintiff’s reply to the counterclaims asserted CPLR 3211(a)(1) as an affirmative defense, thus preserving plaintiff’s right to move to dismiss the counterclaims pursuant to that provision (see id.; M & E 73-75 LLC v 57 Fusion LLC, 189 AD3d 1, 6 [1st Dept 2020], lv dismissed 36 NY3d 1086 [2021]).

Dismissal of the legal malpractice counterclaim was warranted because defendant failed to adequately plead proximate causation (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]). The answer did not specifically allege, and the allegations therein, read in the light most favorable to defendant, did not give rise to an inference, that but for plaintiff’s negligence, defendant would have proceeded to a hearing and prevailed in the underlying OPMC matter, or he would have achieved a more favorable settlement.

Since the court’s motion to dismiss was directed only at the legal malpractice counterclaim, the court should not have dismissed the remaining counterclaims.”

A recurring situation where a law firm moves to be relieved shortly before a motion for summary judgment or before trial is often linked to the lack of an expert, or the reluctance of the law firm to hire (and expend funds for) an expert.  Of course, this is not the only reason law firms litigate a case for years and then abruptly exits the case.  How the law firm exits is very important.

In Davis v Siben & Siben, LLC  2022 NY Slip Op 06906 Decided on December 7, 2022  the Appellate Division, Second Department placed great weight on the day that the law firm served an order permitting withdrawal with notice of entry on Plaintiff.

“The defendant, Siben & Siben, LLC, represented the plaintiff in an underlying action entitled Davis v Commack Hotel, LLC, which sought to recover damages for, inter alia, negligence, wrongful death, and conscious pain and suffering as it related to the death of the plaintiff’s son. On or about October 1, 2014, the defendant moved to be relieved as counsel in that action, which motion was granted under the following conditions: that the defendant serve the plaintiff with a notice of entry within 20 days, and that the defendant file proof that such service had been effected. The defendant served the plaintiff with the notice of entry on November 10, 2014.

On or about January 11, 2018, the plaintiff, pro se, commenced this action alleging legal malpractice and fraudulent misrepresentation against the defendant. The defendant moved, inter alia, for summary judgment dismissing the complaint. The Supreme Court granted the motion. The plaintiff appeals, and we affirm.

“The statute of limitations for a cause of action to recover damages for legal malpractice is three years, which accrues at the time the malpractice is committed” (Tulino v Hiller, P.C., 202 AD3d 1132, 1135 [internal citations omitted]). “However, pursuant to the doctrine of continuous representation, the time within which to sue on the claim is tolled until the attorney’s continuing representation of the client with regard to the particular matter terminates” (Aqua-Trol Corp. v Wilentz, Goldman & Spitzer, P.A., 144 AD3d 956, 957). “For the doctrine to apply, there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the [*2]client and the attorney. One of the predicates for the application of the doctrine is continuing trust and confidence in the relationship between the parties” (Beroza v Sallah Law Firm, P.C., 126 AD3d 742, 743 [internal citations and quotation marks omitted]). Here, the defendant was relieved as counsel no later than November 10, 2014, when it fulfilled the obligations set out by the Supreme Court. Insofar as this action was commenced more than three years later, on January 11, 2018, the legal malpractice claims were untimely.”

Buried in the lede is the notion that legal malpractice claims were dismissed, and no appeal presented.  Breach of fiduciary duty claims in Jadidian v Goldstein  2022 NY Slip Op 06695
Decided on November 23, 2022  Appellate Division, Second Department were dismissed as well, but an appeal was attempted on the basis that the statute of limitations for Breach of Fiduciary Duty has two separate time-spans, three years or six.

“On March 24, 2021, the plaintiffs commenced this action against their former attorneys to recover damages for legal malpractice and breach of fiduciary duty. The plaintiffs alleged, inter alia, that the defendants committed legal malpractice in connection with their representation of the plaintiffs in three prior actions, each of which settled on October 16, 2015. The plaintiffs also alleged that “[i]n an attempt to cover up their . . . negligence” in connection with the three underlying actions, the defendants commenced a prior legal malpractice action on the plaintiffs’ behalf against prior counsel who had represented the plaintiffs in one of the underlying actions.

In May 2021, the defendants moved pursuant to CPLR 3211(a) to dismiss the complaint, asserting, among other things, that the plaintiffs’ causes of action were time-barred. The plaintiffs cross-moved pursuant to CPLR 3025(b) for leave to amend the complaint. In an order entered August 4, 2021, the Supreme Court granted the defendants’ motion and denied, as academic, the plaintiffs’ cross motion. The plaintiffs appeal from so much of the order as granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging breach of fiduciary duty and denied, as academic, the plaintiffs’ cross motion pursuant to CPLR 3025(b) for leave to amend the complaint.

Contrary to the plaintiffs’ contention, the Supreme Court properly granted that branch of the defendants’ motion which was to dismiss the cause of action alleging breach of fiduciary duty. There is no single statute of limitations for causes of action alleging breach of fiduciary duty (see IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 139; Matter of Hersh, 198 AD3d [*2]766, 769). “Where the relief sought is equitable in nature, the statute of limitations is six years, and where the relief sought is purely monetary, the statute of limitations is generally three years” (Matter of Hersh, 198 AD3d at 769). However, “regardless of the relief sought, ‘where an allegation of fraud is essential to a breach of fiduciary duty claim, courts have applied a six-year statute of limitations under CPLR 213(8)'” (id., quoting IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d at 139; see McDonnell v Bradley, 109 AD3d 592, 594). A cause of action alleging breach of fiduciary duty “accrues at the time of the [alleged] breach, even though the injured party may not know of the existence of the wrong or injury” (Matter of Hersh, 198 AD3d at 769 [internal quotation marks omitted]; see Sternberg v Continuum Health Partners, Inc., 186 AD3d 1554, 1557).

Here, the cause of action alleging breach of fiduciary duty was subject to a three-year statute of limitations since the relief sought was monetary in nature and the complaint failed to allege all the requisite elements of fraud, including justifiable reliance (see Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 562; IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d at 140; Oppedisano v D’Agostino, 196 AD3d 497, 499). As the plaintiffs maintain, the cause of action alleging breach of fiduciary duty began to run, at the latest, on January 11, 2016, when the defendants allegedly commenced the prior legal malpractice action “to cover up their . . . negligence.” Thus, since the plaintiffs did not commence the instant action until March 24, 2021, more than three years later, the cause of action alleging breach of fiduciary duty was time-barred.”

Rosenbaum v Myers, 2022 NY Slip Op 33975(U)  November 18, 2022  Supreme Court, New York County  Docket Number: Index No. 652971/2019  Judge: Lucy Billings is a most unusual story.  Attorney and divorce client meet, successfully obtain the divorce, fashion the attorney fee payment based upon investment advice given by the attorney to the client, purchase a Lennox Avenue property and live together for years.  The attorney is supposed to get a percentage of the sale price of the property, but, alas, is not paid.

“The parties lived together from approximately 2007 to 2019. Before then, defendant was married to non-party William Kaczmarek. Defendant and Kaczmarek litigated a divorce action between 2002 and 2006, when their divorce was finalized. According to the complaint in this action, during the divorce action, “Plaintiff provided advice to Defendant, appeared on Defendant’s behalf in the divorce proceeding, assisted in negotiating the settlement, and helped obtain the favorable resolution of the proceeding.”

“Plaintiff also helped defendant deal with the acquisition and development of residential property at 202 Lenox Avenue, New York County, an asset at issue in the divorce action. · Id. ii 14-15. Defendant did not pay plaintiff for his legal services, but she later signed a document titled “Acknowledgment of Debt” dated February 7, 2005, which, on its face, acknowled~~s a debt defendant owed to plaintiff for legal advice and services he previously provided equal to 25% of the net profit from the potential future sale 0£ the Lenox Avenue propeity. Aff. of Benjamin Allee Ex. 1, NYSCEF Doc. 85. The document describes the debt as owed for plaintiff’s “extensive representation and advice in all legal proceedings and negotiations with various parties, the City of New York, and the financing and development of the property.” Id. This advice and representation dated back to at least June 7, 2004, when plaintiff alleges that he advised defendant to consider obtaining the Lenox Avenue property in her divorce settlement and dealt with the City of New York and Astoria Bank to help her acquire the property, obtain a mortgage, and develop the property. The only legal proceedings were in the divorce action. In February 2016 defendant sold the property and did not pay plaintiff. ”

“After the parties’ romantic relationship ended in 2019, plaintiff sued on a single breach of contract claim to enforce the Acknowledgment of Debt .. Defendant counterclaimed for
plaintiff’s legal malpractice in his representation of her during her divorce action and for intentional infliction of emotional distress, alleging domestic violence and physical and verbal
abuse between January 13 and February 12, 2019. ”

“To establish breach of a contract, plaintiff must demonstrate a contract that plaintiff performed and that defendant breached and damages from defendant’s breach. Alloy Advisory, LLC v. 503 W. 33rd St. Assocs., Inc., 195 A.D.3d 436, 436 (1st Dep’t 2021). For a contract, plaintiff points to the Acknowledgment of Debt, which describes plaintiff’s consideration
as prior legal services. Allee Aff. Ex. 1. It is undisputed that plaintiff provided legal services to defendant and that defendant has not paid to plaintiff her consideration: 25% of
the net profit from the sale of the property described in the Acknowledgment of Debt. Therefore plaintiff has made a prima facie showing of d~fendant’s breach of· that 6ontract, shifting the burden to defendant to demonstrate the absence of at least one of the elements of the breach of contract claim . ”

“If this consideration, legal representation and counsel in defendant’s divorce action, were prospective consideration for a promised 25% of the net profits from the sale of the Lenox Avenue property, that consideration would be unenforceable. It is undisputed that plaintiff did not abide by the rules governing attorneys’ representation of clients in matrimonial actions, which require a written retainer agreement. 22 N.Y.C.R.R. § 1400.3; Rosenbaum v. Myers, 191 A.D.3d 445, 446 (1st Dep’t 2021).

An attorney’s failure to abide by the rules in matrimonial actions bars the attorney’s recovery of fees, invalidating the Acknowledgment of Debt. Law Off. of Sheldon Eisenberger v.
Blisko, 106 A.D.3d 650, 652 (1st Dep’t 2013); Edelman v. Poster, 72 A.D.3d 182, 184 (1st Dep’t 2010); Julien v. Machson, 245 A.D.2d 122, 122 (1st Dep’t 1997); Grecco v. Grecco, 161
A.D.3d 950, 951 (2d Dep’t 2018) (collecting decisions). Plaintiff insists that 22 N.Y.C.R.R. Part 1400’s client protective requirements do not apply to him, as 22 N.Y.C.R.R. §
1400.1 excepts attorneys who are not being paid by their client from those requirements. If plaintiff is not to be paid by his client, however, his legal services are not consideration for the purpose of validating the purported contract. On the other hand, were plaintiff’s legal services prospective consideration in the contract, the exception in 22 N.Y.C.R.R. § 1400.1 would not apply, and the contract would be unenforceable. Adjmi v. Tawil, 180 A.D.3d 435, 436 (1st Dep’t 2020); Law Off. of Sheldon Eisenberger v. Blisko, 106 A.D.3d at 651; Edelman v. Poster, 72 A.D.3d at 184. Plaintiff may not circumvent important measures for the protection of clients in matrimonial actions through the cunning use of a contract after the fact, having claimed his services were pro bono only when convenient. “