Beneficiaries to a will can often show losses, and even damages (which are not necessarily the same), but almost always lack the standing to sue estate planning attorneys, as beneficiaries are not the Administrator or Executor(trix) of the estate.  In Alford v Katz 2022 NY Slip Op 05397 Decided on September 30, 2022 Appellate Division, Fourth Department, plaintiff was the Executor of the estate, had standing, and could demonstrate potential damage.

“Memorandum: Plaintiff commenced this legal malpractice action as executor of and on behalf of the estate of her father, Robert J. Genco (decedent), alleging that defendants were negligent in the drafting of decedent’s will. In 2006, and before decedent and his wife were married, they entered into a prenuptial agreement that provided that decedent’s wife waived any rights to decedent’s retirement and deferred compensation accounts, and decedent’s will would include a $1 million qualified terminal interest property trust (QTIP trust) for his wife’s benefit. In 2007, decedent executed a will that included the QTIP trust bequest. In 2015, decedent changed the designation on his retirement accounts to designate his wife as the primary beneficiary of contributions decedent made after the date of their marriage and, in 2017, he signed a will that was prepared by defendants. In that will, decedent bequeathed to his wife $1 million, reduced by testamentary substitutes including retirement accounts for which she was the beneficiary, but there was no bequest for a QTIP trust. After decedent died, his wife filed a claim against his estate pursuant to SCPA 1803, claiming that she was entitled to, inter alia,

$1 million to fund the QTIP trust and, when that claim was rejected, decedent’s wife commenced an action against plaintiff as executor of decedent’s estate. Plaintiff then commenced this action, alleging that defendants negligently drafted the 2017 will. Specifically, in this action plaintiff alleges that decedent changed the beneficiary designation on his retirement accounts in exchange for his wife’s waiver of her right under the prenuptial agreement to receive the QTIP trust, but defendants negligently failed to have decedent’s wife execute a written amendment and/or waiver to the prenuptial agreement.

Before any discovery was conducted, defendants moved for summary judgment dismissing the complaint on the ground that it was premature because the action of decedent’s wife against plaintiff was still pending. Although the two actions were not consolidated, Supreme Court issued a decision and order that resolved both actions. In the wife’s action against plaintiff, the court granted the wife’s motion for summary judgment and ordered plaintiff to fund a QTIP trust with $1 million. In this action, the court, inter alia, granted defendants’ motion and dismissed the complaint and, as limited by her brief, plaintiff now appeals from the order to that extent.

We agree with plaintiff that the court erred in granting defendants’ motion. Even assuming, arguendo, that plaintiff’s action was premature at the time defendants brought their motion, it was no longer premature once the court granted the wife’s motion for summary judgment in the wife’s action against plaintiff. Contrary to defendants’ contention, plaintiff, as the personal representative of decedent’s estate, may bring a claim for legal malpractice alleging that defendants were negligent in the estate planning for decedent (see Estate of Schneider v Finmann, 15 NY3d 306, 309-310 [2010]). “Damages in a legal malpractice case are designed to ‘make the injured client whole’ ” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 443 [2007], quoting Campagnola v Mulholland, Minion & Roe, 76 NY2d 38, 42 [1990]), and defendants failed to meet their initial burden of establishing that decedent’s estate did not sustain any damages or that any damages were speculative (cf. Leeder v Antonucci, 195 AD3d 1592, 1593 [4th Dept 2021]; see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).”

Attorneys are afforded a very wide swath of protection when they act as criminal defense attorneys.  They cannot be successfully sued for legal malpractice unless the client can show that they are “free of a conviction” or demonstrate “actual innocence”  That did not happen in Brooks v Shechtman  2022 NY Slip Op 33155(U)  September 19, 2022  Supreme Court, New York County  Docket Number: Index No. 158640/2020  Judge: Alexander M. Tisch.

“In or about January 2007, Brooks consulted with and subsequently retained ,and hired defendants Paul Schectman (Schectman), the principal of member of defendant Stillman
Friedman & Schectman P .C. (SFS) (collectively, defendants) (id. at 13, 11 ). The complaint alleges that, pursuant to Federal Rule of Criminal Procedure 6 (g), the grand jury’s lawful term lasts only eighteen months and therefore expired on October 6, 2007 (id. at 1 13). The complaint alleges that on or about October 24, 2007, Schectman advised Brooks during a meeting that the federal grand jury that was investigating Brooks had or was about to expire (id. at, 12). Nevertheless, Brooks was arrested and taken into custody on charges set forth in a superseding indictment on October 25, 2007 (id. at 1 15). The complaint alleges that defendants knew, or in the exercise ofreasonable care should have known, that the grand jury’s term had expired and therefore had no lawful authority to indict (see, e.g., id. at 1 17). ”

“”In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney ‘failed to exercise the ordinary :reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages'” (Rudolf Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438,442 [2007], quoting McCoy v Feinman, 99 NY2d 295, 301-302 [2002]). When the alleged negligent representation arises from a criminal proceeding, plaintiff must also “allege his innocence or a colorable claim of innocence of the underlying offense” (Carmel v Lunney, 70 NY2d 169, 173 [1987]; see Sgambelluri v Ironman, 78 AD3d 924,925 [2d Dept 2010). “In order to open the door for even a colorable claim of innocence, criminal defendants must free themselves of the conviction, for the conviction precludes those potential (plaintiffs from asserting innocence in a civil suit” (Britt v Legal Aid Socy., 95 NY2d 443, 447 [2000]). Plaintiff must also “show that the attorney was the proximate cause of his or her conviction” (Britt v Legal Aid Socy., 95 NY2d 443, 446 [2000]; see Dombrowski v Bulson, 19 NY3d 347, 350-351 [2012]). More specifically, the law requires that the plaintiff “bear the unique burden to plead and prove that the client’s conviction was due to the attorney’s actions alone and not due to some consequence of his guilt” (id. at 447; see Rudolf, 8 NY3d at 442 [“To establish causation, a plaintiff must show that he or she would have prevailed in the underlying · action or would not have incurred ary damages, but for the lawyer’s negligence”]) .”

“Here, because Brooks plead guilty to certain tax evasion counts, those convictions were not abated by the Second Circuit in United States v Brooks (872 F3d 78, 87-88 [2d Cir 2017)).
Accordingly, the legal malpractice action may not be maintained as to those counts (see Sgambelluri, 78 AD3d at 925 [“A plea of guilty bars recovery for legal malpractice, ‘[r]egardless
of the plaintiffs subjective reasons for pleading guilty”‘], quoting Casement v O’Neill, 28 AD3d 508, 509 [2d Dept 2006] [internal citations omitted]).

As for the remaining convictions, plaintiff argues that.the mere abatement of them due to Brooks’ death suffices for the purposes of a legal malpractice claim, given the significance of the abatement “ab initio” as if the convictions never happened (see NYSCEF Doc No 9, plaintiff’s mem in opp at’7). However, the Court finds that the abatement of the conviction due to Brooks’ death, by itself, falls short of being construed as a “colorable claim of innocence” required for the legal malpractice claim. Notably, there are no allegations of innocence in the entire complaint and, without it, “public policy prevents maintenance of a malpractice action against his attorney” (Carmel, 70 NY2d at 1 73 [i 987]). “

Relief for violation of Judiciary Law § 487 is not “lightly given.” Facebook, Inc. v. DLA Piper LLP (US)  .  As an example, in AmTrust N. Am., Inc. v Pavloff  2022 NY Slip Op 02862 [204 AD3d 599] April 28, 2022 the Appellate Division, First Department found, in essence, that a mere lie is not enough to trigger the deceit statute.  The deceitful statement has to be “egregious.”

“The amended complaint states a cause of action for legal malpractice and the documents submitted do not utterly refute the factual allegations underlying that cause of action (see generally Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; CPLR 3211 [a] [1], [7]). Dismissal of the cause of action for violation of Judiciary Law § 487 (1) is, however, warranted. The amended complaint does not allege, and the documents submitted do not indicate, that defendant Sherri Pavloff’s statement at the August 2017 proceeding in the underlying motor vehicle accident action was untrue. Even assuming Pavloff’s statement was deceitful, it is not sufficiently egregious to support a section 487 (1) cause of action (e.g. Mazzocchi v Gilbert, 185 AD3d 438, 438 [1st Dept 2020], lv denied 37 NY3d 908 [2021]; Shawe v Elting, 161 AD3d 585, 588 [1st Dept 2018], lv denied 32 NY3d 907 [2018]).”

Feng Li v Shih  2022 NY Slip Op 04293 [207 AD3d 444] [207 AD3d 444]  July 6, 2022 Appellate Division, Second Department is a case so rife with wrongdoing, fee disputes, disbarments and other extreme forms of play that it stands out in a field which is awash with wrongdoing.  Here, the Court dismisses all causes of action.

“The plaintiff represented a number of clients in a lawsuit that resulted in a substantial judgment. The proceeds of the judgment were received by the plaintiff and deposited into his trust account. The plaintiff and the clients disagreed as to whether the plaintiff’s legal fees should be calculated pursuant to the terms of the retainer agreement they had signed or pursuant to New York’s contingency fee rules, and as to whether funds collected prior to the plaintiff’s representation of the clients should be included in that calculation as well (see Matter of Feng Li v Knight, 201 AD3d 1048, 1048-1049 [2022]). Before the fee dispute had been resolved, the plaintiff unilaterally disbursed approximately $1.2 million of the amount collected on behalf of the clients to himself and thereafter used the disputed funds to pay off foreign debts (see Feng Li v Peng, 161 AD3d 823, 824 [2018]; Feng Li v Peng, 516 BR 26, 32 [Bankr D NJ 2014], affd 610 Fed Appx 126 [3d Cir 2015]). The plaintiff “was subsequently disbarred in New Jersey and suspended from the practice of law in New York for misappropriating the disputed portion of his legal fee” (Feng Li v Peng, 161 AD3d at 824; see Matter of Feng Li, 149 AD3d 238 [2017]; In re Feng Li, 201 NJ 523, 65 A3d 254 [2013]). The fee dispute concluded in 2015 when a New Jersey court entered a judgment in favor of the clients and against the plaintiff in the total sum of approximately $1 million.

[*2] The plaintiff subsequently commenced this action against the defendant, an attorney who represented the plaintiff’s former clients in a number of actions and proceedings arising out of the fee dispute. The complaint asserted eight causes of action, sounding in malicious prosecution, abuse of process, prima facie tort, and intentional infliction of emotional distress, among other things. The complaint alleged that the plaintiff justifiably disbursed the disputed portion of the fee to himself, and that the defendant, despite knowing this to be true, pursued relief on the clients’ behalf in the New Jersey action that resulted in the money judgment and in two attorney discipline proceedings that resulted in the plaintiff’s disbarment in New Jersey and suspension in New York. The defendant moved, inter alia, pursuant to CPLR 3211 (a) to dismiss the complaint. The plaintiff opposed the motion, and separately moved pursuant to CPLR 3025 (b) for leave to supplement the complaint by adding a cause of action to recover treble damages under Judiciary Law § 487 and allegations that the defendant falsely accused the plaintiff of misappropriating client funds and misrepresenting the terms of the retainer agreement in communications with a number of courts and other bodies.”

“Nevertheless, the defendant was entitled to dismissal of the entire complaint. “The doctrine of collateral estoppel, a narrower species of res judicata, precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action . . . and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). “ ’Collateral estoppel comes into play when four conditions are fulfilled: (1) the issues in both proceedings are identical, (2) the issue in the prior proceeding was actually litigated and decided, (3) there was a full and fair opportunity to litigate in the prior proceeding, and (4) the issue previously litigated was necessary to support a valid and final judgment on the merits’ ” (Wilson v City of New York, 161 AD3d 1212, 1216 [2018], quoting Conason v Megan [*3]Holding, LLC, 25 NY3d 1, 17 [2015]). Here, numerous courts, including this Court, have determined that the plaintiff may not relitigate the merits of the fee dispute with his former clients and the question of whether he misappropriated their funds (see e.g. Matter of Feng Li v Knight, 201 AD3d at 1048-1051; Feng Li v Peng, 161 AD3d at 825-826; Feng Li v Lorenzo, 2016 WL 10679578, *2, 2016 US Dist LEXIS 200997, *3-6 [SD NY, Sept. 7, 2016, No. 16-CV-4092 (CM), McMahon, J.], affd on other grounds 712 Fed Appx 21 [2d Cir 2017]; Feng Li v Peng, 516 BR at 42-48; Peng v Law Off. of Feng Li, 2017 WL 1166454, *6, 2017 NJ Super Unpub LEXIS 800, *15-16 [Mar. 29, 2017, No. A-3280-14T2]). The plaintiff’s first through fourth causes of action are all renewed attempts to relitigate these issues. Consequently, these causes of action are barred under the doctrine of collateral estoppel.”

Murphy v Kozlowska  2022 NY Slip Op 32947(U)  September 2, 2022   Supreme Court, New York County  Docket Number: Index No. 150978/2022  Judge: Lisa S. Headley presents the classic “catch-all” bag of claims against an attorney/lawfirm.  It appears that the attorneys were defending Plaintiffs (at least one of whom is an attorney) and Plaintiffs became disenchanted with the representation when they were strongly advised to settle for $ 750,000.

“On February 2, 2022, the plaintiff filed this action against defendants for alleged illegal acts committed by defendants, including conversion, trespass to chattel, defamation, libel, slander, extortion by attorneys, fraud and deceit, theft, coercion, extortion, blackmail, intentional infliction of emotional distress, negligent infliction of emotional distress, and punitive damages. In the complaint, plaintiff alleges, inter alia, that defendant Gary Certain told plaintiff that if the case was not settled quick, “it will not look good for him” and “to lay out $750,000 if [plaintiff] didn’t want any problems.” Plaintiff alleges that such interaction is considered blackmail and extortion. Plaintiff contends that this interaction caused emotional distress to plaintiff. Further, plaintiff alleges that defendant Kozlowska is in possession of electronic devices belonging to plaintiff that Kozlowska is using, along with her co-defendants, in order to blackmail and extort plaintiff. Plaintiff alleges that defendant Kozlowska has been saying “untrue things” about plaintiff to third parties, causing damage to plaintiffs reputation. ”

“Defendants’ motion to dismiss must be granted in its entirety as plaintiff has failed to state a cause of action for conversion, trespass to chattel, defamation, libel, slander, extortion by attorneys, fraud and deceit, theft, coercion, extortion, blackmail, intentional infliction of emotional distress, negligent infliction of emotional distress, and punitive damages as the complaint on its face is based on bare legal conclusions and insufficient factual evidence to fit within any cognizable legal theory. ”

“Likewise, plaintiff failed to state a cause of action for deceit. “A violation of Judiciary Law § 487 may be established either by the defendant’s alleged deceit or by an alleged chronic, extreme pattern of legal delinquency by the defendant.” Duszynski v. Allstate Ins. Co., 107 A.D. 3d 1448, 1449 ( 4th Dep’t 2013). Plaintiff does not set forth any evidence to show how defendants’ conduct was deceitful, nor how plaintiff was misled by defendants’ conduct. “

An attorney can be a free agent, or part of a team.  Increasingly, it seems the attorney can be both, at once.  Carasco v Schlesinger   2022 NY Slip Op 33021(U)  September 8, 2022
Supreme Court,  New York County Docket Number: Index No. 156729/2019,  Judge: David B. Cohen is an example of an attorney taking a case on in a partnership, leaving the partnership, moving on to a new firm, taking a case with him, but not transferring it to a new firm.  When it all goes wrong, the question remains:  Who is the attorney?

On or about December 8, 2014, plaintiff signed a retainer agreement with defendant law firm Julien & Schlesinger (“J&S”). Doc. 1 at par. 21; Doc. 46. Pursuant to the agreement, J&S
was to represent plaintiff in connection with personal injuries she sustained when she tripped and fell at Second Avenue and 58th Street in Manhattan on October 31, 2014 (“the accident”). Doc. 1 at par. 22; Doc. 46.”

“It is undisputed that, on January 6, 2016, Schlesinger, was no longer an employee of J&S, which ceased operations in 2015, became an associate at defendant Morelli Law Firm, PLLC
(“MLF”). Doc. 39 at pars. 22, 27. On or about January 28, 2016, plaintiff commenced a personal injury action in this Court styled Hazel Carasco v City of New York, Consolidated Edison
Company, and Halcyon Construction Company, et. al., under Ind. No. 105779/16 (“the underlying action”). Doc. 1 at par. 24; Doc. 47. The summons and complaint in the underlying
action listed counsel for plaintiff as “Michael S. Schlesinger of the Schlesinger Law Firm, P.C.” Doc. 47.”

“Between February 2017 and July 2018, this Court (d’ Auguste, J. and Tisch, J.) issued orders dismissing the underlying action against the defendants therein based, inter alia, on
plaintiffs failure to provide discovery. Doc. 54. ”

“MLF has, however, established its prima facie entitlement to summary judgment by demonstrating that it did not have an attorney-client relationship with plaintiff. One of the
elements of a legal malpractice claim is the existence of an attorney-client relationship (See Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP, 129 AD3d 790, 792 [2d
Dept 2015]). Here, MLF demonstrates that it did not have a retainer agreement with plaintiff; plaintiff concedes that Schlesinger never told her that she was represented by MLF;  Schlesinger and Morelli both testified that MLF refused to accept plaintiff’s case; and plaintiff did not communicate with, or receive legal advice from, anyone from MLF other than Schlesinger, who, although not mentioned in the retainer agreement signed by J&S, filed plaintiff’s complaint in the underlying action as Michael Schlesinger of “The Schlesinger Law Firm, P.C.” Thus, the burden shifts to plaintiff to raise a material issue of fact to defeat MLF’ s motion.

Plaintiff fails to raise an issue of fact regarding whether she was represented by MLF. The sole retainer agreement she signed in connection with the underlying action was with J&S.
Plaintiff’s presumption that there would be a continuation of the retainer agreement she signed with J&S when Schlesinger moved to MLF is insufficient to raise an issue of fact (See Davis v Cohen & Gresser, LLP, 160 AD3d 484,486 [1 st Dept 2018] citing Pellegrino v Oppenheimer & Co., Inc., 49 AD3d 94, 99 [1st Dept 2008] [“a party cannot create the relationship based on his or her own beliefs or actions”]; Jane St. Co. v Rosenberg & Estis, 192 AD2d 451,451 [1st Dept 1993], lv denied 82 NY2d 654 [1993] [plaintiff’s unilateral beliefs and actions do not confer upon it the status of client”]). Plaintiff conceded at her deposition that Schlesinger never told her that MLF represented her, but rather that he was representing her and that he worked for MLF. Plaintiff even conceded that Schlesinger told her as early as April 2016 that MLF was reluctant to take her case and there is no evidence that plaintiff was ever told that MLF agreed to represent her. Therefore, MLF is entitled to summary judgment dismissing the complaint against it (See Jones v. Lopez, 12 Misc 3d 1184[A], 2006 NY Slip Op 51444[U] [Sup Ct. Bronx County 2006] [plaintiff failed to establish that the defendant law firm explicitly undertook to perform a service for her, either orally or in writing]).
This Court acknowledges that plaintiff met with Schlesinger at MLF’ s offices on 3 or 4  occasions, that MLF appeared as counsel ofrecord on eLaw and/or eCourts, evidently because
Schlesinger was affiliated with the firm, and that plaintiff received email correspondence from Schlesinger via MLF’s email server. While the foregoing facts may be some indicia that MLF represented plaintiff, this Court finds that they do not raise a material issue of fact regarding whether she had an attorney-client relationship with the firm given the conclusions in the previous paragraph (See generally Theroux v Resnicow, 2021 NYLJ LEXIS 686 [Sup Ct New York County 2021] [Lebovits, J.] [in ruling whether emails were protected by attorney-client privilege, this Court held that no attorney-client relationship existed where, as here, there was no retainer or letter of engagement, no fees were paid, the attorneys did not appear on behalf of the alleged client, and the attorneys’ names were not on any of the documents filed in the action]). Contrary to plaintiffs contention, MLF is not vicariously liable for acts committed in furtherance of Schlesinger’s personal motives and not in furtherance ofMLF’s business (See Esposito v Isaac, 54 Misc3d 134[A] [App Term 1st Dept 2017] [citation omittedJ). ”

“Schlesinger fails to establish his prima facie entitlement to summary judgment dismissing the complaint. Although Schlesinger did not personally have a retainer agreement or letter of engagement with plaintiff, he represented plaintiff at her 50-h hearing on behalf of J&S and assumed her representation in the underlying action by filing the summons and complaint therein as Michael Schlesinger of “The Schlesinger Law Firm, P.C.” which, said documents indicated, was the “Attorney[ ] for the Plaintiff.”

It is well settled that “an attorney must seek leave of the court to be relieved as counsel for a client based upon good cause, unless a consent to change attorneys signed by the client has been filed (CPLR 321 [b][2]; Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.16[d]).” (Grant v Mendez, 2013 NY Slip Op 33750[U], *3 [Sup Ct, Westchester County 2013]). In
Grant, the court held that an attorney acted improperly by advising his client that he was going to withdraw from representing him without obtaining the client’s signed consent or seeking a court order relieving him as counsel and that the attorney had an obligation to continue representing the client until such time as he was formally relieved as counsel.

Schlesinger maintains, in essence, that he drafted the complaint for plaintiff as an accommodation. However, he fails to acknowledge his responsibility to continue representing
her until such time as he successfully moved to be relieved as counsel or was discharged as counsel by plaintiff. Although Schlesinger told plaintiff that MLF would not take her case, and that she should retain new counsel, this did not fulfill his legal obligation to sever his ties with her. Thus, he remained responsible for representing her in the underlying action which, he admits, was dismissed due to “nonappearance of the plaintiff.” “

Fierro v Yellen  2022 NY Slip Op 32959(U)  August 31, 2022  Supreme Court, Kings County  Docket Number: Index No. 523796/2021  Judge: Ingrid Joseph is way too complicated a fact pattern to set forth in a paragraph or two.  You’ll have to read the multi-page facts in the case itself.

Here is the doctrinal take-away discussion on Judiciary Law § 487:

“The statute of limitations is also six years for plaintiffs’ first cause of action for violation of Judiciary Law § 487 (see CPLR § 213 [ 1]; Melcher v Greenberg Traurig,
LLP, 23 NY3d 10, 15 [2014], rearg denied 23 NY3d 998 [2014]). Since this cause of action accrued at the same time as plaintiffs’ third cause of action for fraud, it similarly is
time-barred, warranting its dismissal (see CPLR 3 211 [a] [5]). ”

“Furthermore, Judiciary Law § 487 ( 1) provides, in pertinent part, that “[ a ]n attorney or counselor who . . . [i]Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party . . . forfeits to the party ‘ injured treble damages, to be recovered in a civil action.” lt is understood that “relief under a cause of action based upon Judiciary Law § 487 ‘is not lightly given”‘ (Facebook, Inc. v DLA Piper LLP [US], 134 AD3d 610,615 [1st Dept 2015], lv denied 28 NY3d 903 [2015], quoting Chowaiki & Co. Fine Art Ltd. v Lacher, 115 AD3d 600, 601 [1st Dept 2014 ]). To warrant such relief, the plaintiff must make a showing of “egregious conduct or a chronic and extreme pattern of behavior” on the part of the defendant attorneys that caused damages (Savitt v Greenberg Traurig, LLP, 126 AD3d 506, 507 [1st Dept 2015]).  Moreover, “allegations regarding an act of deceit or intent to deceive must be stated with particularity” (Facebook, Inc., 134 AD3d at 615), and “the claim will be dismissed if the allegations as to scienter are conclusory and factually insufficient” (id.; see also . Briarpatch Ltd., L.P. v Frankfurt Garbus Klein & Selz, P’.C., 13 AD3d 296, 297-298 [1st  Dept 2004], lv denied 4 NY3d 707 [2005]; Agostini v Sobol, 304 AD2d 395, 396 [1st Dept 2003 ]). This court, upon consideration, does not find that plaintiffs sufficiently allege such “egregious conduct or a chronic and extreme pattern of behavior” on the part of the defendant attorneys to state a viable claim under Judiciary Law § 487 (see CPLR 3211 [a] [7]; Savitt, 126 AD3d at 507). “

Menkes v Greenwald  2022 NY Slip Op 32882(U)  August 24, 2022 Supreme Court, New York County  Docket Number: Index No. 159685/2021 Judge: David B. Cohen is an illustration of how the continuous representation period can end when one of the legs collapses.  Specifically the legs to continuous representation are a continuing relationship of trust and confidence, the shared understanding of the need for further legal work, and actual further legal work.

In this case, there was a lapse in the continuing relationship of trust and confidence.

“Generally, a cause of action for legal malpractice accrues on the date that the alleged malpractice was committed, and a plaintiff has three years to commence such action (see CPLR
214 [6]; Glamm v Allen, 57 NY2d 87, 93 [1982]). That three-year statute of limitations can also be tolled under the doctrine of continuous representation (see Glamm, 57 NY2d at 93-95).
However, tolling resulting from continuous representation ends “once the client is informed or otherwise put on notice of the attorney’s withdrawal from representation” (Shumsky v Eisenstein, 96 NY2d 164, 170-171 [2001]; accord RJR Mech. Inc. v Ruvoldt, 170 AD3d 515,515 [1st Dept 2019]), such as when an attorney provides a client with all of that client’s files (see Marzario v Snitow Kanfer Holzer & Millus, LLP, 178 AD3d 527, 528 [1st Dept 2019]).

In her complaint, plaintiff does not provide an exact date of defendants’ alleged malpractice (Doc No. 31 at 3-9). However, in support of their motion, defendants submit emails
between themselves and plaintiff discussing the representation (Doc Nos. 44-45). In a May 2016 email, defendants stated that they were “preclude[d]” from further representing plaintiff because of her threats to sue defendants for legal malpractice; and in an email from August 23, 2016, defendants stated that they had provided plaintiff with all of her files (Doc Nos. 44-45). Even under the doctrine of continuous representation, and giving plaintiff the benefit of every possible inference, the relationship between the parties ended, and the limitations period began to run, on August 23, 2016 (see Marzario, 178 AD3d at 528; Riley v Segan, Nemerov & Singer, P.C., 82 AD3d 572, 572-573 [1st Dept 2011]). Therefore, plaintiff was required to commence an action by August 23, 2019 (see CPLR 214 [6]). Since plaintiff did not commence the instant action until October 25, 2021 (Doc No. 1 at 13), her legal malpractice claim is barred by the statute of limitations and must be dismissed (see Riley, 82 AD3d at 573). “

As if a textbook discussing many of the less obvious hurdles for a legal malpractice claimant, Brooks v Baker & Hostelter, LLP  2022 NY Slip Op 32871(U)  August 23, 2022  Supreme Court, New York County  Docket Number: Index No. 655754/2021  Judge: Arlene P. Bluth defines and sets forth the law on issues of standing, commencement of the suit, actual innocence in a claim against a criminal defense attorney and the acts of subsequent counsel.

“As an initial matter, the Court finds that plaintiff lacked capacity to bring this lawsuit at the time the complaint was filed. He admitted in opposition that he petitioned the probate court in Florida on July 12, 2022 to reopen the estate (it was previously closed) and for his reappointment as personal representative. This case was filed in September 2021 and so he did not have capacity to sue on behalf of his brother’s estate when this case was commenced.

Even if the Court were to overlook plaintiff’s lack of capacity to sue, the fact is that plaintiff did not state a valid cause of action for legal malpractice. “In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal
profession and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, 835 NYS2d 534 [2007] [internal quotations and citations omitted]).

“[A]n individual convicted of a criminal offense must be able to assert his innocence or a colorable claim of innocence before he can pursue a claim against his attorney for legal
malpractice arising out of the criminal proceeding” (Britt v Legal Aid Soc., Inc., 95 NY2d 443, 445, 718 NYS2d 264 [2000]).

Here, it is undisputed that Mr. Brooks pled guilty to various tax charges and was sentenced to years in prison. That the tax charges were severed does not change the fact that
they were all part of the same purportedly insufficient indictment about which plaintiff complains. Moreover, it is undisputed that defendants were representing Mr. Brooks during a
time period when all the charges (both tax and non-tax) were included in the same indictment.

Plaintiff’s attempt to show that Mr. Brooks would not have been imprisoned if defendants had raised the issue about the defective indictment is mere speculation. This claim relies on the suggestion that, somehow, Mr. Brooks would have convinced a subsequent grand jury not to indict him. Of course, that argument fails because he pled guilty to the tax charges. It is also critical to point out that any jurisdictional defect was rendered moot when the government empaneled a new grand jury that returned a second superseding indictment containing the exact same charges against Mr. Brooks. And the courts reviewing the issue noted that any prejudice was overcome.

And, as defendants point out, Mr. Brooks hired many attorneys throughout the course of the U.S. Attorney’s investigation into his criminal conduct and defendants were long gone by the time the actual criminal trial started or when Mr. Brooks pled guilty. These other attorneys had ample opportunity to raise any number of issues on Mr. Brooks’ behalf. And so even if there was some malpractice, successor counsel had a chance to address it (Davis v Cohen & Gresser, LLP, 160 AD3d 484, 487, 74 NYS3d 534 [1st Dept 2018] [dismissing a legal malpractice claim where a successor counsel had sufficient time to protect plaintiff’s interests and failed to do so]).

Finally, the Court finds that the instant matter is time-barred. The Second Circuit’s decision vacating his conviction was issued on September 20, 2017 (see United States v Brooks,
872 F3d 78, 96 [2d Cir 2017]) and this case was not commenced until September 2021. “

Anecdotally, we believe that attorney fee claims make up the majority of attorney cases.  Legal malpractice takes up a very minor portion of the overall set of cases in which an attorney is a party.  Hand Baldachin & Amburgey LLP v John Barrett, Inc.  2022 NY Slip Op 50826(U)  Decided on August 26, 2022  Supreme Court, New York County
Reed, J. is a typical case.

“Barrett Holdings retained law firm Hand Baldachin & Associates, LLP (“HBA”) to perform legal services, pursuant to an engagement agreement dated February 25, 2015 (the “engagement agreement”), which was signed by both parties. Thereafter, HBA performed certain corporate and litigation services on behalf of Barrett Holdings and its affiliated entity, John [*2]Barrett, Inc.[FN1] HBA performed limited corporate law services in connection with a deal between Barrett Holdings and Saks & Company LLC to open John Barrett salons in Saks Fifth Avenue department stores. HBA also represented John Barrett, Inc., in connection with a lawsuit entitled Red Door Salons, Inc. v. Georges Reus, et al., Index No. 653439/2015 (Sup Ct., New York County 2015).

Thereafter, HBA issued 12 invoices to Barrett Holdings, between April 10, 2015 and April 6, 2016, for legal services rendered and expenses incurred during HBA’s representation. As of the last invoice dated April 6, 2016, Barrett Holdings owed HBA $9,246.88 for corporate work and $186,393.50 for litigation work, for a total of $195,640.38. These amounts remain outstanding.

Plaintiff commenced this action against defendant by filling a summons and complaint on November 22, 2016, asserting three causes of action: breach of contract, unjust enrichment quantum meruit and an account stated (NYSCEF Doc. No. 1, complaint, 7). On December 19, 2016, Defendants filed an answer with counterclaims, for legal malpractice, breach of fiduciary duty, and unjust enrichment.”

“As to the merits, HBA has established a valid cause of action against Barrett Holdings. The elements of a cause of action for breach of contract are: “(1) the existence of a contract, (2) the plaintiff’s performance, (3) the defendant’s breach, and (4) resulting damages.” (Alloy Advisory, LLC v. 503 W. 33rd St. Assoc., Inc., 195 AD3d 436, 436 [1st Dept 2021]). In support of this motion, Douglas Hand of HBA submitted the contract between HBA and Barrett Holdings, as well as an affidavit stating that HBA performed the legal services; incurred the expenses reflected on 12 invoices sent to Barrett Holdings; and that a balance of $195,640.38 remains outstanding. Having proven the elements of its breach of contract claim and satisfied the procedural requirements of CPLR § 3215, HBA is entitled to a default judgment in the amount of $195,640.38, plus statutory interest from Barrett Holdings.

In addition to granting a default judgment in favor of HBA, the court is also dismissing Barrett Holdings’ counterclaims against HBA asserted in the amended answer. CPLR Rule 3216(a) states, in relevant part: “Where a party unreasonably neglects to proceed generally in an action the court, on its own initiative or upon motion, with notice to the parties, may dismiss the party’s pleading on terms.” CPLR Rule 3216 may be used to dismiss counterclaims (see Burke, Albright, Harter & Rzepka LLP v. Sills, 187 AD..3d 1507, 1508 [4th Dep’t 2020]; Express Shipping, Ltd. v. Gold, 63 AD3d 669, 671 [2d Dep’t 2009]).

The conditions precedent to dismissal are: issue must have been joined [CPLR 3216(b)(1)]; one year has passed since the joinder of issue or six months have passed since the issuance of the preliminary conference order, whichever is later [CPLR 3216(b)(2)]; and the movant must serve a 90-day notice by registered or certified mail demanding the resumption of prosecution and stating that failure to do so will serve as the basis for a motion to dismiss [CPLR 3216(b)(3)].

Here, all three conditions have been satisfied. Issue was joined on December 19, 2016, when defendants filed an answer with counterclaims (NYSCEF, Doc. No. 3). It has been more than six months since the court issued the preliminary conference order on June 19, 2019 [*4](NYSCEF, Doc. No. 26). It has been more than 90 days since HBA served a notice upon Barrett Holdings, via its registered agent, to resume prosecution of its counterclaims (NYSCEF, Doc. No. 79). In that notice, HBA explicitly stated that defendant’s default in complying with the demand within 90-day period will serve as a basis for a motion by plaintiff to dismiss said counterclaims for unreasonably neglecting to proceed (id.) To date, Barrett Holdings has failed to appear by counsel as previously ordered by the Court on April 16, 2021. (NYSCEF, Doc. No. 75). Therefore, dismissing counterclaims is proper under CPLR Rule 3216(a). However, the dismissal of the counterclaims is not on the merits.”