Sometimes the AD finds that a consent to change attorney is the terminating event for continuous representation and sometimes not. Ellison v Seltzer,  2022 NY Slip Op 05786
Decided on October 18, 2022  Appellate Division, First Department is a case where the “mutual understanding of the need for further representation” trumped the “failure to move to be relieved” standard.

“Supreme Court correctly determined that the legal malpractice claim was barred by the three-year statute of limitations (CPLR 214 [6]). While the claim accrued at the latest on September 23, 2016, the continuous representation doctrine tolled the statute of limitations until December 8, 2016, when defendants informed plaintiff that they would not represent him on his appeal in the underlying employment action, but plaintiff did not commence this action until December 13, 2019 (see Shumsky v Eisenstein, 96 NY2d 164, 170-171 [2001]). Contrary to plaintiff’s contentions, the outstanding counterclaim in the employment action and defendants’ failure to move to be relieved in that action did not show a mutual understanding of a need for further representation (see McCoy v Feinman, 99 NY2d 295, 306 [2002]; Farina v Katsandonis, P.C., 197 AD3d 1033, 1033-34 [1st Dept 2021]; Hirsch v Fink, 89 AD3d 430, 431 [1st Dept 2011]).”

Lee v Leifer  2022 NY Slip Op 05793  Decided on October 18, 2022  Appellate Division, First Department is the startling story of an attorney who told his client that it was better and more efficient not to answer a complaint.  The strategy worked well, until it didn’t.

“The Leifer defendants (Leifer) represented Lee in a lawsuit against him, which arose out of Lee’s ownership of a restaurant. Lee alleges that Leifer erroneously informed him that the damages sought were limited to an agreed-upon purchase price, although the plaintiff in that case actually sought significantly more in punitive damages. Lee further alleges that, on Leifer’s advice, he did not file an answer. The court found that Lee had failed to assert a meritorious defense to the punitive damages claim and entered a default judgment for the plaintiff. At an inquest, the court awarded punitive damages of $700,000, as well as compensatory damages, interest, and attorneys’ fees. Lee has appealed to the Second Department. Lee sued for legal malpractice. The motion court denied Leifer’s motion to dismiss.

Lee’s legal malpractice complaint adequately alleges that Leifer’s failure to advise him of the punitive damages claim asserted against him in the underlying action and failure to file a responsive pleading, “proximately caused plaintiff to sustain actual and ascertainable damages,” i.e., that he would not have incurred the punitive damages award but for Leifer’s negligence (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). Lee claims that he would have avoided the punitive damages award by asserting a meritorious defense in his responsive pleading. However, Lee’s default required the court to accept as true all allegations against him as to liability (see Amusement Bus. Underwriters v American Intl. Group, 66 NY2d 878, 880 [1985]). While Lee had the opportunity to contest the punitive damages claim at the subsequent damages inquest, he was not permitted to introduce evidence to counter the underlying cause of action (Suburban Graphics Supply Corp. v Nagle, 5 AD3d 663, 665 [2d Dept 2004]).

Although the inquest court rejected the substance of Lee’s purportedly meritorious defense, it did so on a limited record. “[W]hile [defaulting] defendants are entitled to present testimony and evidence and cross-examine the plaintiff’s witnesses at the inquest on damages, they may not conduct discovery” (Rudra v Friedman, 123 AD3d 1104, 1005 [2d Dept 2014] [internal quotation marks omitted]). Because Lee, having defaulted, forfeited the right to discovery, he was deprived of the opportunity to amass a record on which the inquest court might have credited his defense to the punitive damages claim.”

In York v Frank  2022 NY Slip Op 05738  Decided on October 12, 2022  Appellate Division, Second Department, after discarding the statute of limitations as a reason to dismiss, the Second Department took up an alternative reason to dismiss.  This was done even though the parties did not address the issue.

“Although the Supreme Court did not address the defendants’ contention that the amended complaint should be dismissed pursuant to CPLR 3211(a)(7) for failure to state a cause of action, we reach that issue as an alternative ground for affirmance (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 544-546; Kauffman v Turner Constr. Co., 195 AD3d 1003, 1005).

“On a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint, the pleading is to be afforded a liberal construction” (Farber v Breslin, 47 AD3d 873, 876; see Bernhardt v Schneider, 190 AD3d 919, 920). To state a valid cause of action alleging legal malpractice, the plaintiff must plead sufficient facts to “show that an attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession” (McCoy v Feinman, 99 NY2d 295, 301 [internal quotation marks omitted]; see Ackerman v Kesselman, 100 AD3d 577, 579). The “plaintiff must [also] show that he or she would have prevailed in the underlying action or would not have incurred any damages but for the attorney’s negligence” (Mackey Reed Elec., Inc. v Morrone & Assoc., P.C., 125 AD3d 822, 823). In addition, the plaintiff must plead actual and ascertainable damages that resulted from the alleged legal malpractice or that “might be reasonably inferred” (id. at 823; see McCoy v Feinman, 99 NY2d at 301-302; Hall v Hobbick, 192 AD3d 776, 778).

Here, the plaintiff failed to plead sufficient facts to state a cause of action alleging legal malpractice in connection with the divorce action. The plaintiff’s allegations as to how the Supreme Court might have ruled had her attorney moved ex parte for an order of preclusion were speculative (see Denisco v Uysal, 195 AD3d 989, 991). Moreover, the plaintiff’s allegations that the failure of the defendants to make such an application constituted negligence were conclusory (see [*3]Katsoris v Bodnar & Milone, LLP, 186 AD3d 1504, 1506; Hashmi v Messiha, 65 AD3d 1193, 1194-1196). Further, the plaintiff’s allegation that she sustained actual and ascertainable damages as a result of the defendants’ negligence also was conclusory and speculative (see Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1506; Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 847-848). In sum, “the conclusory allegations of the [amended] complaint failed to adequately plead specific facts to establish that, but for the defendants’ alleged negligent conduct, the outcome in the underlying action would have been any more favorable to the plaintiff[ ], or that the plaintiff[ ] would not have incurred any damages” (Kahlon v DeSantis, 182 AD3d 588, 589; see Denisco v Uysal, 195 AD3d at 991; Janker v Silver, Forrester & Lesser, P.C., 135 AD3d 908, 910; Hashmi v Messiha, 65 AD3d at 1195; cf. McCoy v Feinman, 99 NY2d at 305; Stewart Tit. Ins. Co. v Wingate, Kearney & Cullen, 134 AD3d 924, 924-925).”

Courts determine when the statute of limitations begins to run against an attorney in one of two general ways.  Either continuous representation ends when there is no longer a relationship of trust and confidence (acrimonious communication) or when the attorney withdraws.  Both can be the basis for the onset of the statute.  In York v Frank  2022 NY Slip Op 05738  Decided on October 12, 2022  Appellate Division, Second Department takes the more conservative position, which it does not always do.

“On October 5, 1999, the plaintiff entered into a retainer agreement with the defendant Blank Rome, LLP, formerly known as Tenzer Greenblatt, LLP (hereinafter the law firm), to provide legal representation, inter alia, in a divorce action. The defendant Donald Frank, an attorney with the law firm, executed the retainer agreement on behalf of the law firm. The attorney-client relationship subsequently deteriorated, and in an order dated June 8, 2001, the Supreme Court, inter [*2]alia, granted that branch of the defendants’ motion which was to withdraw as counsel for the plaintiff in the divorce action. On August 15, 2001, the plaintiff retained new counsel.

On June 2, 2004, the plaintiff commenced this action to recover damages for legal malpractice. Thereafter, the defendants moved pursuant to CPLR 3211(a) to dismiss the amended complaint on the grounds, inter alia, that it was time-barred and that it failed to state a cause of action. In an order entered March 28, 2019, the Supreme Court, among other things, granted the defendants’ motion to dismiss the amended complaint on the ground that it was time-barred. The plaintiff then moved for leave to reargue her opposition to the defendants’ motion. In an order entered September 16, 2019, the court, inter alia, denied the plaintiff’s motion for leave to reargue. In a judgment entered September 19, 2019, the court dismissed the amended complaint. The plaintiff appeals.

“An action to recover damages for legal malpractice must be commenced within three years from the accrual of the claim” (Farage v Ehrenberg, 124 AD3d 159, 163; see CPLR 214[6]). “Accrual is measured from the commission of the alleged malpractice, when all facts necessary to the cause of action have occurred and the aggrieved party can obtain relief in court, regardless of when the operative facts are discovered by the plaintiff” (Farage v Ehrenberg, 124 AD3d at 164 [citations omitted]; see Shumsky v Eisenstein, 96 NY2d 164, 166). The doctrine of continuous representation tolls the three-year statute of limitations “for the period following the alleged malpractice until the attorney’s continuing representation of the client on a particular matter is completed” (Farage v Ehrenberg, 124 AD3d at 164).

Here, the defendants failed to establish, prima facie, that the action was commenced more than three years after the plaintiff’s claims alleging legal malpractice in connection with the divorce action accrued. The plaintiff commenced this action by filing a summons with notice on June 2, 2004 (see CPLR 304(a); Jones v Bill, 10 NY3d 550, 554; LeBlanc v Skinner, 103 AD3d 202, 208). Based on the defendants’ submissions, the parties’ attorney-client relationship did not end until at least June 8, 2001, when the Supreme Court granted that branch of the defendants’ motion which was to withdraw as counsel for the plaintiff in the divorce action (see Tulino v Hiller, P.C., 202 AD3d 1132, 1135; Garafalo v Mayoka, 151 AD3d 1018, 1019; Farage v Ehrenberg, 124 AD3d at 165). Thus, in this action, the Supreme Court should not have granted dismissal of the amended complaint on the ground that it was time-barred.”

Purchase at an auction at your risk.  That is one of the lessons in Markov v Barrows  2022 NY Slip Op 04780 [208 AD3d 401]  August 2, 2022  Appellate Division, First Department.  Of course, what is true in the underlying case is true in a legal malpractice case which follows the purchase of a medal which did not live up to its description.

“This legal malpractice action stems from defendant’s representation of plaintiff in a prior action in which plaintiff sought to recover damages he allegedly sustained after purchasing at auction a particular medal that he asserted was worth far less than his winning bid. Plaintiff alleges that defendant failed to timely sue the proper parties—namely, Stack’s LLC and its auctioneers—leading to the dismissal of the prior action and precluding any recovery by plaintiff for alleged misrepresentations by Stack’s and the auctioneers regarding the materials comprising the medal.

Supreme Court properly dismissed plaintiff’s legal malpractice cause of action in the original complaint because he failed to allege that “but for” defendant’s negligent conduct, he would have prevailed in the underlying action (Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 272 [1st Dept 2004]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). Plaintiff’s citation to a ruling in the underlying action denying dismissal of his fraud claim, among others, did not, without more, show that he would have prevailed in the underlying action had defendant timely commenced it by naming the proper parties in the original complaint (see Sonnenschine v Giacomo, 295 AD2d 287, 287 [1st Dept 2002]).”

“By placing a bid in the auction, plaintiff, a numismatic dealer who buys, sells, and collects Russian coins and medals, acknowledged receipt of the auction catalog and agreed to adhere to the terms of sale (see Terms of Sale ¶¶ 5, 40). Bidders were “encouraged to carefully examine all lots prior to sale,” because the lots would not be shown at the sale (Terms of Sale ¶ 15; see Terms of Sale ¶ 26). Stack’s assumed no liability for the facts stated concerning the items in the auction, except as specified in the terms of sale (Terms of Sale ¶¶ 15, 18 [k]; see Terms of Sale ¶ 31 [“Stack’s hereby disclaims all liability for damages, incidental, consequential or otherwise, arising out of or in connection with the sale of any property by Stack’s to purchaser”]). While offering a limited warranty “that any numismatic item sold is authentic (i.e., not counterfeit, that its date or mintmark has not been altered, and that the coin has not been repaired as those terms are used in the trade),” Stack’s made clear that “all other warranties of authenticity of authorship, whether express or implied, [were] disclaimed” (Terms of Sale ¶ 16). Elsewhere in the terms of sale, Stack’s warned bidders (in bold text) that, “[e]xcept as otherwise expressly stated in the Terms of Sale, Stack’s and its agents and employees make no warranties or guaranties or representations, and expressly disclaim all warranties and guaranties and representations, including, without limitation, a warranty of merchantability, in connection with any numismatic properties sold by Stack’s” (Terms of Sale ¶ 18 [h]; see Terms of Sale ¶ 18 [i] [“All oral and written statements made by Stack’s are statements of opinion only and are not warranties or representations of any kind, unless stated as a specific written warranty, and no employee or agent of Stack’s has authority to vary or alter these Terms of Sale”]).

In light of the constellation of disclaimers and conditions in the terms of sale, plaintiff cannot demonstrate that, but for defendant’s alleged legal malpractice, plaintiff would have prevailed in the underlying action against Stack’s and the auctioneers.”

Curtis v Berutti  2022 NY Slip Op 22307  Decided on August 24, 2022  Supreme Court, Orange County  McElduff Jr., J. illustrates two points which frequently come up in legal malpractice cases:  privity and collateral estoppel.  If a guardian hires an attorney to represent the guardian (and his ward) does the ward eventually have standing to sue the attorney?  This is an issue of Near Privity.

If the attorney successfully obtains a court order granting the attorney fees, is the guardian or ward collaterally estopped from suing for legal malpractice?  Often yes, and in this case definitely yes.

“Mr. Curtis’ Verified Complaint, dated December 19, 2019, contained four, labeled causes of action against the Defendants: (1) breach of fiduciary duty, (2) breach of contract, (3) unjust enrichment and (4) a demand for common law accounting. (See Iaconis Affm. Ex. A). The breach of fiduciary duty, breach of contract and unjust enrichment causes of action arise from the same set of facts and sought the same damages, which are “believed to be in excess of” $600,000.00, with such additional finance and interest charges that have accrued, including costs of legal fees. (See Iaconis Affm. Ex. A). Mr. Curtis’ accounting cause of action alleges that the Defendants are in possession of books and records without having returned them and demands that the Defendants provide him with “an accounting” for his Brooklyn property (1190 Bedford Avenue), turn over their files and “account” for the two lawsuits handled by the Defendants on Mr. Curtis’ behalf (the Tabak and Phillip cases).”

“The precise question of whether an attorney who represents a guardian also represents the guardian’s ward (under a “near privity” exception or otherwise) has not been answered in New York. Other states, however, have answered the question in the affirmative. Such states have recognized that an exception to the privity requirement for legal malpractice liability must exist when a guardian hires an attorney specifically the benefit their ward. For example, in Illinois, courts have recognized that an attorney-client relationship extended from the attorney to the ward where the attorney, although hired by the ward’s guardian, was acting for the primary benefit or best interests of the ward. See Schwartz v. Cortelloni, 177 Ill. 2d 166, 174—75 (1997) (stating that the key factor to be considered is whether the attorney acted at the direction of or on behalf of the client for the benefit of the ward). Similarly, in Florida, it has been held that the attorney for guardian owes a duty to the ward where the ward is the intended third-party [*4]beneficiary of the attorney’s services. See Saadeh v. Connors, 166 So. 3d 959 (Fla. Dist. Ct. App. 2015) (reinstating the ward’s legal malpractice claim against the guardian’s attorney and noting that the relationship between the guardian and the ward is such that the ward must be considered to be the primary or intended beneficiary and cannot be considered an “incidental” beneficiary). Further, Arizona courts have held that when an attorney undertakes to represent the guardian of an incompetent ward, the attorney assumes a relationship not only with the guardian but also with the ward as the intended beneficiary, whose interests overshadow those of the guardian and, thus, an attorney cannot escape liability for wrongful conduct on the ground of lack of privity. See In re Guardianship of Sleeth, 226 Ariz. 171 (Ct. App. 2010); see also Fickett v. Superior Court, 27 Ariz. App. 793 (1976).

Here, there is sufficient “near privity” between The Weiner Law Group and Mr. Curtis, notwithstanding the fact that his guardian, Mishael Pine, Esq., retained The Weiner Law Group. It is patently obvious that Ms. Pine retained The Weiner Law Group for Mr. Curtis’ benefit, in that The Weiner Law Group was hired as replacement counsel to represent Mr. Curtis in two pending Supreme Court actions, in which Mr. Curtis was already a party. For purposes of meeting New York’s “near privity” exception to the privity requirement for imposing legal malpractice liability, it doesn’t get any nearer than that. Under these circumstances, it is indisputable that Defendants were aware that their services would be used for a specific purpose that benefitted the ward (i.e., both defending Mr. Curtis and prosecuting his claims in the pending litigations) and that the ward/Mr. Curtis would necessarily be relying on those services as the intended beneficiary. Accordingly, this Court concludes that the relationship between The Weiner Law Group and Mr. Curtis was so near privity that The Weiner Law Group cannot escape liability for legal malpractice on the ground of lack of direct contractual privity.”

“As summarized in the case of Chisholm-Ryder Co. v. Sommer & Sommer:

It is familiar law that the doctrine of res judicata or claim preclusion forecloses a party from relitigating a cause of action which was the subject matter of a former lawsuit or from raising issues or defenses that might have been litigated in the first suit (see Gramatan Home Investors Corp. v. Lopez, 46 NY2d 481, 485, 414 N.Y.S.2d 308, 386 N.E.2d 1328). The related doctrine of collateral estoppel precludes a party from relitigating issues which were previously determined even though the prior suit involved a separate cause of action or a different **72 adversary. By definition, collateral estoppel, or issue preclusion, does not bar the litigation of issues which were not previously raised. It will, however, foreclose issues which were necessarily decided in the first action, litigated or not (Statter v. Statter, 2 NY2d 668, 672, 163 N.Y.S.2d 13, 143 N.E.2d 10 (in an action for separation, the validity of the marriage was “necessarily determined” and barred a subsequent action for annulment).

Chisholm-Ryder Co. v. Sommer & Sommer, 78 AD2d 143, 144 (4d Dept. 1980).

Specifically, a judicial determination fixing the value of a professional’s services necessarily decides there was no legal malpractice, even if the client did not raise any issue of malpractice in the prior proceeding. See Sharp v. Chittur, No. 155098/13, 2014 WL 2042295, at [*5]*1 (Sup. Ct. 2014); See also Breslin Realty Dev. Corp. v. Shaw, 72 AD3d 258, 264 (2d Dept. 2010) (holding that a prior determination awarding fees bars a subsequent claim sounding in legal malpractice pursuant to both the doctrine of res judicata and the doctrine of collateral estoppel).

By Decision and Order dated August 22, 2022, this Court granted Defendant Weiner Law Group’s application for attorney’s fees incurred on Mr. Curtis’ behalf during pendency of his guardianship (from the period August 1, 2018 through the termination of the guardianship on January 17, 2019) over the objection of Mr. Curtis, who, with counsel, submitted opposition to the motion.^[FN1] Similar to the allegations of legal malpractice made in the instant Verified Complaint, Mr. Curtis’s opposition to The Weiner Law Group’s fee application contained allegations of fee churning, questionable billing practices and strategic choices. However, this Court’s determination of the propriety and reasonableness of The Weiner Law Group’s fees bars Mr. Curtis’ subsequent claim of legal malpractice concerning those fees pursuant to the doctrines of res judicata and collateral estoppel.”

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]). “