Marcum LLP v L’abbate, Balkan, Colavita & Contini, LLP   2022 NY Slip Op 31913(U)  June 17, 2022  Supreme Court, New York County Docket Number: Index No. 151586/2021  Judge: Joel M. Cohen is a decision on a motion to reargue.  The legal malpractice case was earlier dismissed as too speculative.  The Fee claims remain.

“Plaintiff brought a single claim for legal malpractice against Defendants alleging, among other things, failure to timely produce relevant documents in discovery, negligently producing privileged and protected materials, and withdrawing from the representation of Marcum in the underlying litigation just months before trial with a motion for sanctions pending (NYSCEF 1). In its claim for damages, Plaintiff sought recovery of additional attorneys’ fees incurred by having to hire new counsel due to the negligence of L’ Abbate (NYSCEF 1 ,52) and disgorgement of attorneys’ fees paid to L’ Abbate since the inception of L’ Abbate’s allegedly negligent conduct and breaches of its duty, including a $2.0 million self-insured retention paid by Marcum (NYSCEF 1 ,57-58). Defendant moved to dismiss the Complaint in its entirety, but did not address the sufficiency of Plaintiff’s claim for legal fees or disgorgement in its papers.”

“In seeking leave to reargue the Court’s denial of the motion to dismiss in its entirety, Defendant’s core argument is that Plaintiff has not sustained any actual damages because it has
not paid any fees that it was not otherwise required to pay under its primary policy. Defendant does not, however, establish that “the court overlooked or misapprehended the relevant facts, or misapplied any controlling principle oflaw” (Pro Brokerage, Inc. v Home Ins. Co., 99 AD2d 971 [1st Dept 1984 ]).

Converting this motion into one to renew, which Defendant attempts in its reply brief, is unavailing. Defendant argues that “where the additional facts presented relate to an issue which had not previously been raised by the parties but, rather, has been raised sua sponte by the court in its memorandum … it [is] error for the court not to consider these additional facts” (Kosovsky v. Park S. Tenants Corp. 45 Misc3d 1216(A) [Sup Ct, NY County 2014]) But unlike Kosovsky v Park S. Tenants Corp., where the court denied plaintiffs motion for summary judgment based on procedural grounds not raised by the parties, here the burden was always on Defendant to show that dismissal of the complaint in its entirely was warranted, which Defendant failed to do. The Court simply noted at argument that Defendant failed to address a portion of Plaintiffs claim. A motion for leave to renew “is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation” (Renna v Gullo, 19 AD3d 472, 473 [2d Dept 2005]). ”

One Edgewater Equities LLC v Law Firm of Hall & Hall LLP     2022 NY Slip Op 31919(U) June 16, 2022 Supreme Court, New York County Docket Number: Index No. 158110/2021 Judge: Barry R. Ostrager stands for the simple proposition that the failure to file a notice of appeal is a departure from good practice, and successor attorney, who came into the case long after the 30 day notice of appeal period had passed cannot be blamed.

“The Court declines to dismiss the first cause of action for legal malpractice against the three defendants. It is undisputed that neither the associate nor anyone else at the firm filed a
Notice of Appeal to preserve the client’s rights, which was well within the scope of the Retainer Agreement. Efforts by successor counsel were limited as a result to motions before the same trial judge who had sua sponte issued the restraint, which was subject to a different standard than the standard for an appeal. While it is unclear whether plaintiff can ultimately prove that they would have prevailed “but for” the alleged malpractice of the defendants, enough has been shown at the pleading stage. Since the motion was on notice, the decision that included the restraint could have been challenged on appeal. And successor counsel was ultimately able to get the restraint vacated. However, successor counsel could not pursue a prompt appeal of the August 31, 2018 order because he was not substituted in until April 8, 2019, well beyond the 30-day deadline to file a notice of appeal. Nor can the Court find as a matter of law at this stage of the litigation that the manner in which successor counsel litigated the case was an “intervening cause” that relieved the Hall firm of liability. Damages have been sufficiently stated at the pleading stage. Therefore, based on the liberal construction of the pleadings and defendants’ failure to produce documentary evidence that establishes a defense as a matter of law, dismissal of the claim is not warranted and plaintiff can pursue discovery. Leon v Martinez, 84 NY2d 83, 87-88 (1994). “

A legal malpractice case was lost in discovery disputes.  In a fairly rare application of CPLR 3126, the complaint was stricken in Gorbatov v Tsirelman  Decided on June 22, 2022
Appellate Division, Second Department.

“In 2014, the plaintiffs commenced this action against, among others, the defendant Leon Kucherovsky and the defendants Gary Tsirelman and Law Office of Gary Tsirelman, P.C. (hereinafter together the Tsirelman defendants, and collectively with Kucherovsky, the defendants), the plaintiffs’ former attorneys, inter alia, to recover damages for legal malpractice and violation of Judiciary Law § 487. In August 2015, Kucherovsky served the plaintiffs with demands for a bill of particulars and discovery. In July 2016, the Tsirelman defendants also served the plaintiffs with demands for a bill of particulars and discovery. The plaintiffs failed to respond to the demands. Thereafter, pursuant to a stipulated preliminary conference order dated January 11, 2018 (hereinafter the January 2018 order), the plaintiffs were directed to respond to the defendants’ demands by February 12, 2018. Although the plaintiffs consented to the January 2018 order, they did not respond to the defendants’ demands. Thereafter, in a compliance conference order dated May 31, 2018 [*2](hereinafter the May 2018 order), the Supreme Court directed the plaintiffs to respond to the defendants’ demands within 20 days. The plaintiffs did not do so.”

“”Pursuant to CPLR 3126, a court may impose discovery sanctions, including the striking of a pleading or preclusion of evidence, where a party ‘refuses to obey an order for disclosure or wilfully fails to disclose information which the court finds ought to have been disclosed'” (Aha Sales, Inc. v Creative Bath Prods., Inc., 110 AD3d 1019, 1019, quoting CPLR 3126). “If a party served with a demand for a bill of particulars willfully fails to provide particulars which the court finds ought to have been provided . . . , the court may make such final or conditional order with regard to the failure or refusal as is just, including such relief as is set forth in [CPLR 3126]” (CPLR 3042[d]). The nature and degree of the penalty to be imposed pursuant to CPLR 3126 is a matter within the discretion of the court (see Smookler v Dicerbo, 166 AD3d 838, 839). “The drastic remedy of striking a pleading is appropriate when there is a clear showing that the failure to comply with discovery demands or orders was willful and contumacious” (Henry v Atlantis Rehabilitation & Residential Healthcare Facility, LLC, 194 AD3d 1021, 1022; see CPLR 3126[3]; Gafarova v Yale Realty, LLC, 174 AD3d 862, 863). Moreover, “[t]he willful or contumacious character of a party’s conduct can be inferred from the party’s repeated failure to respond to demands or to comply with discovery orders, and the absence of a reasonable excuse for these failures, or by the failure to comply with court-ordered discovery over an extended period of time” (Nationstar Mtge., LLC v Jackson, 192 AD3d 813, 815 [internal quotation marks omitted]; see Henry v Atlantis Rehabilitation & Residential Healthcare Facility, LLC, 194 AD3d at 1022-1023).

Here, the Supreme Court providently exercised its discretion in granting those branches of the defendants’ motions which were to strike the complaint upon finding, inter alia, that the plaintiffs’ repeated disregard of the defendants’ demands for discovery and bills of particulars, the plaintiffs’ failure to provide responses to the demands despite having participated in discovery conferences wherein they stipulated to provide such responses, the plaintiffs’ inadequate responses when they did respond, and the absence of an adequate excuse for these failures constituted willful and contumacious behavior (see Sparakis v Gozzer Corp., 177 AD3d 1011, 1012-1013; Williams v Suttle, 168 AD3d 792, 793-794).”

Scopia Windmill LP v Olshan Frome Wolosky LLP  2022 NY Slip Op 03996 Decided on June 21, 2022 Appellate Division, First Department succinctly describes how legal malpractice is a comparison of the actual outcome versus the hypothetical better outcome had mistakes not been made.

“Plaintiffs assert a legal malpractice claim alleging that defendant law firm was negligent in failing to perfect a security interest by timely filing a UCC-1 financing statement in connection with a loan they made. Contrary to defendant’s contention, the allegations underlying the claim are not “couched in terms of gross speculations on future events” (see Phillips-Smith Specialty Retail Group II v Parker Chapin Flattau & Klimpl, 265 AD2d 208 [1st Dept 1999], lv denied 94 NY2d 759 [2000]). To the contrary, supported by plausible expert opinion, they depict a hypothetical course of events flowing from the failure to file that caused plaintiffs ascertainable damage that would not have occurred had the lien been timely filed, thereby raising an issue of fact sufficient to defeat summary dismissal of the claim (see e.g. A&L Vil. Mkt., Inc. v 344 Vil., Inc., 170 AD3d 1095 [2d Dept 2019]).”

Lee Anav Chung White Kim Ruger & Richter LLP v Capone  2022 NY Slip Op 31731(U) May 25, 2022 Supreme Court, New York County Docket Number: Index No. 657197/2020 Judge: Arlene Bluth stands for the proposition that an account stated is stronger than almost any defense.  Failure to object to an attorney’s bills basically precludes any arguments made later that the bill is duplicitive or excessive.

“In this action to recover legal fees, plaintiff moves for summary judgment on its causes of action for breach of the retainer agreement and account stated. It claims it represented defendant in connection with three family court proceedings in Kings County and that defendant refused to pay her outstanding bills. Plaintiff contends that defendant received regular invoices from April 3, 2019 to November 10, 2020 and did not object to any of the invoices during the representation. It points out that defendant made some partial payments after receiving these invoices.

With respect to the counterclaim, which plaintiff contends is one for legal malpractice, plaintiff argues that defendant’s allegations relate to excessive billing and not a legal malpractice claim. Plaintiff observes that in January 2020, defendant affirmed her intention to pay her  outstanding balance but then did not make the payment. It explains that as a small firm, it could not afford to keep such a large balance and so it eventually moved to be relieved as defendant’s counsel.

In opposition, defendant explains that she has not had the opportunity to present her evidence and counterclaims to the Court and complains that all the conferences were adjourned
by stipulation. She insists that the work done by plaintiff was “extremely sloppy” and the bills were unreasonably inflated. Defendant maintains that there were many duplicative requests and that she was double and triple charged.

She recounts an incident in which the attorney for her child (in the custody dispute) was allegedly not licensed to practice and that plaintiff was slow to address the problem. Defendant complains about her child’s attorney and insists this attorney (who apparently worked for nonparty the Children’s Law Center) did significant damage to defendant’s case. She also takes issue with the fact that plaintiff left the representation “mid-trial” although she admits that the case eventually settled.

In reply, plaintiff argues that defendant did not object to any of the factual assertions made by plaintiff and instead focuses on irrelevant topics. It insists that defendant’s counterclaim
is baseless and should be dismissed.”

“Here, plaintiff met its prima facie burden for summary judgment on the account stated cause of action by submitting the retainer agreement (exh 1 to the complaint) and the invoices
(exh 2 to the complaint). Defendant did not deny receiving these invoices nor did she point to objections she raised within a reasonable time of receiving these invoices. In fact, defendant admitted in an email to plaintiff from January 2020 that “Yes, I am aware of the outstanding balance. I can not pay $88,764.73 all at once, as I mentioned to Young on the phone. I can send $10,000 now, and get on a payment plan with the firm for the rest of the money” (NYSCEF Doc. No. 44).

“Specifically, defendants’ receipt and retention of plaintiff’s accounts, without objection within a reasonable time, and agreement to pay a portion of the indebtedness, gave rise to an
actionable account stated, thereby entitling plaintiff to summary judgment in its favor” (Rosenman Colin Freund Lewis & Cohen v Edelman, 160 AD2d 626, 626, 559 NYS2d 249 [1st
Dept 1990]). That is exactly what happened here: defendant admitted she owed plaintiff and expressed her intention to pay the outstanding amount. Defendant cannot object to the invoices only after plaintiff brought this case. ”

National Air Cargo, Inc. v Jenner & Block, LLP  2022 NY Slip Op 01900 [203 AD3d 1655] March 18, 2022 Appellate Division, Fourth Department discusses two important issues:  scope of retainers and the effects of a bankruptcy filing.

“Memorandum: Plaintiff National Air Cargo, Inc. (NAC) is a freight forwarding company, and plaintiff National Air Cargo Holdings (NACH) owns NAC. Plaintiff Chris Alf is the principal shareholder of NAC and NACH and, at all relevant times, was the chair, chief executive officer, and president of NAC. NAC was found liable on a breach of contract claim in an underlying action against it in the United States District Court for the Central District of California. Plaintiffs commenced this action alleging, inter alia, professional negligence/legal malpractice and seeking damages purportedly arising from the representation of NAC by defendant Jenner & Block, LLP (JB) in the underlying action and the representation of NAC by defendant Harter, Secrest & Emery, LLP (HSE) in NAC’s subsequent bankruptcy proceeding. Plaintiffs alleged that JB and HSE negligently failed to review whether the judgment rendered against NAC in the underlying action was covered by the directors’ and officers’ liability insurance policies issued to NAC and to advise NAC accordingly. JB and HSE thereafter each moved pursuant to CPLR 3211 to dismiss plaintiffs’ complaint against them. In appeal No. 1, plaintiffs appeal from an order of Supreme Court that granted both motions. In appeal No. 2, plaintiffs appeal from a subsequent order of the same court that granted HSE’s motion. In appeal No. 3, plaintiffs appeal from an order and judgment of the same court that granted JB’s motion.”

“n appeal No. 2, we conclude that the court properly dismissed on the ground of documentary evidence the professional negligence/legal malpractice cause of action against HSE insofar as asserted by NAC (see CPLR 3211 [a] [1]). A motion to dismiss a complaint based on documentary evidence “may be appropriately granted only where the documentary evidence utterly refutes [the] plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). In support of its motion, HSE submitted the engagement letter between HSE and NAC. “An attorney may not be held liable for failing to act outside the scope of a retainer” (Attallah v Milbank, Tweed, Hadley & McCloy, LLP, 168 AD3d 1026, 1028 [2d Dept 2019]; see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 435 [2007]). Here, HSE met its burden of establishing by documentary evidence that the scope of its legal representation did not include a review of the insurance policies for possible coverage of the judgment in the underlying action. The engagement letter stated that HSE’s engagement did “not include responsibility either for review of [NAC’s] insurance policies to determine the possibility of coverage for any . . . claims that have [been] or may be asserted against [NAC] or for notification of [NAC’s] insurance carriers concerning the matter.” Because review of NAC’s liability insurance policies to determine their potential applicability to the judgment in the underlying action fell outside the scope of HSE’s engagement, the court properly granted HSE’s motion with respect to the professional negligence/legal malpractice cause of action against HSE insofar as asserted by NAC (see Turner v Irving Finkelstein & Meirowitz, LLP, 61 AD3d 849, 850 [2d Dept 2009]).

In appeal No. 3, we conclude that the court properly dismissed the professional negligence/legal malpractice cause of action against JB, insofar as asserted by NAC, on the ground of judicial estoppel. The “doctrine of judicial estoppel may bar a party from pursuing claims which were not listed in a previous bankruptcy proceeding” (Moran Enters., Inc. v Hurst, 160 AD3d 638, 640 [2d Dept 2018], lv denied 32 NY3d 908 [2018], rearg denied 32 NY3d 1195 [2019]; see Popadyn v Clark Constr. & Prop. Maintenance Servs., Inc., 49 AD3d 1335, 1336 [4th Dept 2008]). Here, at the time NAC filed for bankruptcy, it failed to list a potential legal malpractice claim against JB as an asset and obtained a bankruptcy discharge. We conclude that “[t]he failure of . . . [NAC] to disclose a cause of action as an asset in a prior bankruptcy proceeding, the existence of which [NAC] knew or should have known existed at the time, deprive[s] [NAC] of the legal capacity to sue subsequently on that cause of action” (Green v Associated Med. Professionals of NY, PLLC, 111 AD3d 1430, 1432 [4th Dept 2013] [internal quotation marks omitted]). Contrary to the court’s determination, however, JB failed to establish that the doctrine of judicial estoppel applies with respect to NACH or Alf, because JB failed to establish as a matter of law that NACH or Alf, as non-debtors, were in privity with NAC (see In re Avaya Inc., 573 BR 93, 103-104 [SD NY 2017]).”

Ressler v Farrell Fritz, P.C.  2022 NY Slip Op 31706(U) May 25, 2022 Supreme Court, New York County Docket Number: Index No. 156946/2020 Judge: David B. Cohen is a case about representing clients who object to neighbors’ building plans in a wetlands setting, where the neighbors are asking the municipality to allow for big changes.  Clients hire a law firm to stop the development.  Law firm files some papers, but either misses or did not monitor certain public notifications.  Was it law firm’s responsibility to monitor the public notifications?

“On September 19, 2018, plaintiffs executed an engagement letter (the Engagement Letter) retaining Farrell Fritz to represent them “in connection with the commencement of an
action against Village People LLC, and its principal, John Zaccaro, Jr. asserting possible adverse possession and other claims relating to real property located at Pennant Walk” (NYSCEF Doc No. 39, Ressler aff, Ex 3 at 1; NYSCEF Doc No. 71, defendants’ counterstatement of material facts, ,i,i 6-7). Guardino is a partner and Butler is an attorney at Farrell Fritz (NYSCEF Doc No. 71, ,3-4).

On September 25, 2018, Farrell Fritz, on behalf of plaintiffs, filed a summons with notice in an action captioned Ressler v Village People, LLC, Supreme Court, Suffolk County, Index No.
618618/2018 (the VP Action) (id., i19). That fall, defendants wrote four letters to DEC regarding tidal wetlands permit nos. 1- 4 728-03511, 1-4 728-05497, 1-4 728-05498 and 1-4 728-05499, which allowed Village People to construct four single-family residences on its properties (id., ,i 10; NYSCEF Doc No. 40 at 103, 107, 112 and 135). In the letter dated October 1, 2018, Guardino expressed plaintiffs’ objection to the permits and asked DEC to suspend the permits and related activities until a further review could be made (NYSCEF Doc No. 40 at 103 and 105).

In January 2019, defendants learned that Village People had applied to DEC to modify the permits issued for the tidal wetlands immediately to the west of the Property (NYSCEF Doc
No. 71, ,i 13). On May 3, 2019, DEC issued a permit modification (the 2019 Modification) for permit no. 1-4 728-05497/00001 to allow Village People to combine two lots into a single lot for the construction of one single-family dwelling and discontinued permit no. 1-4728-05498/00001 (NYSCEF Doc No. 81, Ressler aff, Ex 5).

On July 12, 2019, defendants, on behalf of plaintiffs, commenced a hybrid Article 78  proceeding captioned Ressler v New York State Dept. of Envtl. Conservation, et al., Supreme
Court, Suffolk County, Index No. 3668/2019 (the DEC Action) (together with the VP Action, the Actions) related to the 2019 Modification (NYSCEF Doc No. 71, ,i 17). The petition sought to: (1) vacate, annul and reverse a permit modification dated May 3, 2019; (2) declare the permit modification null and void; and (3) enjoin the Village of Saltaire from processing, hearing or deciding any pending or future application seeking to develop the properties that were the subject of the proceeding (NYSCEF Doc No. 40 at 4-5 and 9).
DEC moved to dismiss the petition as untimely under Environmental Conservation Law (ECL) § 25-0404, which provides that a person aggrieved by DEC’s issuance, denial, suspension
or revocation of a tidal wetlands permit may seek judicial review within 30 days of the decision. DEC argued that it had made information pertaining to the 2019 Modification available on the DEC Permit Applications (DART) Search portal, where it publicly posts detailed information on applications for tidal wetlands permits (NYSCEF Doc No. 46, Ressler aff, Ex 10 at 3). DEC posted notice that the 2019 Modification had been granted on the DART system on May 9, 2019 (id. at 4). DEC also argued that it required permit applicants to conspicuously post a permit sign at the site (id.). Village People, which had also moved for dismissal, claimed it had posted copies of the original permit and the 2019 Modification on the front gate and a tree in the walkway at its property (NYSCEF Doc No. 57, Ressler aff, Ex 21 at 4). In a decision and order dated January 29, 2020, the Supreme Court, Suffolk County (Santorelli, J.) granted the motions to dismiss (id. at 5). A motion for leave to reargue was denied on August 25, 2020 (NYSCEF Doc No. 23, ,i 21). ”

“Plaintiffs also move for partial summary judgment on the issue of defendants’ negligence in failing to timely file Article 78 proceedings challenging the 2019 and 2020 Modifications.
Plaintiffs argue that defendants should have known about DART since they had held themselves out as experts in matters involving the DEC. Plaintiffs allege that defendants failed to consult and monitor DART for information about Village People’s permit modification applications and that, had they done so, defendants would have learned when the DEC granted the modifications and could have moved for judicial review within the 30-day period fixed in ECL § 25-0404.

CPLR 3212 (e) provides that “summary judgment may be granted as to one or more causes of action, or part thereof, in favor of any one or more parties, to the extent warranted, on
such terms as may be just.” A party moving for summary judgment “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The “facts must be viewed in the light most favorable to the non-moving party” (Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012] [internal quotation marks and citation omitted]). Once the moving party has met this prima facie burden, the burden shifts to the nonmoving party to furnish evidence in admissible form sufficient to raise a material issue of fact (Alvarez, 68 NY2d at 324). The moving party’s “[f]ailure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers” (id.). ”

“It is well settled that “[a]n attorney may not be held liable for failing to act outside the scope of the retainer” (Genesis Merchant Partners, L.P. v Gilbride, Tusa, Last & Spellane, LLC,
157 AD3d 479,482 [1st Dept 2018], citingAmbase Corp. v Davis Polk & Wardell, 8 NY3d 428 [2007]). Here, plaintiffs have not dispelled all questions of material fact as to whether they had engaged defendants to monitor DART for changes to the four tidal wetlands permits issued to Village People and to commence Article 78 proceedings challenging potential modifications to those permits. In defining the scope of defendants’ representation, the Engagement Letter states that “[Farrell Fritz] will represent you in connection with the commencement of an action against Village People LLC, and its principal, John Zaccaro, Jr. asserting possible adverse possession and other claims relating to real property located at Pennant Walk” (NYSCEF Doc No. 39 at 1). The letter further states that defendants shall provide legal services “in connection with potential litigation involving title to real property located in Saltaire” (id.). While the phrase “and other claims” is ambiguous, the Engagement Letter does not mention the DEC, the permits issued to Village People or the commencement of any proceeding to challenge future modifications or amendments to those permits. Further, the DEC issued the permits to Village People in 2017,
and the time within which to challenge that determination expired long before plaintiffs executed the Engagement Letter. Plaintiffs have not shown whether the Engagement Letter was ever modified to expand the scope of defendants’ obligations to include continually monitoring the four permits issued to Village People and authorizing defendants to commence legal proceedings if DEC were to modify those permits. Given plaintiffs’ failure to meet their prima facie burden, the branch of the motion seeking partial summary judgment on the issue of defendants’ negligence is denied without regard to the sufficiency of defendants’ opposition. “

When a person is injured and successfully asserts a WC claim, a later action for damages against a third-party might be subject to a WC lien.  Here, in Continental Indem. Co. v Redzematovic  2022 NY Slip Op 03866 Decided on June 14, 2022  the Appellate Division, First Department determined that the WC carrier could assert a lien against the legal malpractice recovery.

“Plaintiffs seek to assert the lien provided by Workers’ Compensation Law § 29(1) against the monies received by defendant in settlement of her legal malpractice action against her prior attorneys who failed to timely commence an action against the tortfeasors responsible for her workplace accident. Workers’ Compensation Law § 29(1) provides that, if an employee who is eligible for workers’ compensation benefits is injured “by the negligence or wrong of another not in the same employ, such injured employee . . . [may] pursue his remedy against such other,” and, if the injured employee has received workers’ compensation benefits, the workers’ compensation carrier “shall have a lien on the proceeds of any recovery from such other, whether by judgment, settlement or otherwise,” to the extent of the compensation provided (Matter of Shutter v Phillips Display Components Co. , 90 NY2d 703, 707 [1997]). Under the statutory language, the lien does not apply against any recovery obtained by the injured employee from any source, such as from her own uninsured motorist insurance coverage, but “only against recoveries from the third-party tortfeasors who are responsible for the claimant’s injuries” (id. at 708). Although defendant did not recover directly from the tortfeasors, the legal malpractice settlement “obtained as a result of the first attorney’s failure to timely commence [an action] constitutes a third-party recovery within the meaning of Workers’ Compensation Law § 29” (Matter of Theresa M.C. v Utilities Mut. Ins. Co. , 207 AD2d 481, 482 [2d Dept 1994]) because the recovery from the legal malpractice “settlement was a substitute for the usual third-party recovery against a negligent tort-feasor or wrongdoer” (Matter of McDowell v La Voy , 63 AD2d 358 [3d Dept 1978], affd 47 NY2d 747 [1979]). Accordingly, the settlement proceeds are subject to the Workers’ Compensation lien which attaches to the recovery.”