In a brisk and unequivocal grant of a CPLR 3211 motion, Justice Borrok makes some sweeping findings of fact in Walk v Kasowitz Benson Torres LLP, 2022 NY Slip Op 50031(U) [74 Misc 3d 1203(A)], Decided on January 20, 2022, Supreme Court, New York.

“Upon the foregoing documents and for the reasons set forth on the record (1.18.22), the motion to dismiss pursuant to CPLR 3211(a)(1) and (7) must be granted. The gravamen of the complaint against Kasowitz Benson Torres LLP and Marc E. Kasowitz (collectively, hereinafter, the Defendants) is that Charlie Walk alleges that he entered into a certain Settlement Agreement (hereinafter defined) without being fully informed by counsel as to the meaning of the Settlement Agreement and his alternatives for not settling such that if he had been fully informed he would have restored his reputation and would have gone on to earn approximately $60 million over the course of the next few years. At its core, Mr. Walk complains that the Defendants did not make certain arguments to Universal Music Group (UMG), his former employer, when they were investigating serious public sexual harassment and assault claims made against him and otherwise advised him to accept the Settlement Agreement which he now thinks was inadequate. The arguments fail. Dismissal is required because the entire premise of this lawsuit is based on a false narrative. The substantial documentary evidence in the record consisting of emails sent by Mr. Walk or letters sent by the Defendants on his behalf is such that the facts are simply not as Mr. Walk alleges.

To wit, the documentary evidence (CPLR 3211[a][1]) unequivocally establishes (i) that [*2]the Defendants did in fact make the very arguments that Mr. Walk asserts were not made to UMG, (ii) that the Defendants were not the only lawyers providing advice to him when he entered the Settlement Agreement, and (iii) that he has failed to state a claim (CPLR 3211[a][7]) because, among other things, his interpretation of his rights under his Employment Agreement (hereinafter defined) is wrong. He was not entitled to his 2017 bonus in the event of a for cause firing by UMG. Additionally, the emails and letters in the record firmly establishes that Mr. Walk was well aware of the very issues that he now feigns a lack of knowledge of and that these very issues were discussed with the Defendants and his other lawyers. Mr. Walk also fails to allege facts which would suggest that he could prove his case within a case and achieve a better result than the Settlement Agreement (Katz v Essner, 136 AD3d 575, 576 [1st Dept 2016]).

Although Mr. Walk may allege today that he wishes that he pursued a different legal strategy, and further contested the many detailed sexual harassment and assault claims made against him, this is not actionable (Brook Plaza Ophthalmology Assoc., P. C. v Fink, Weinberger, Fredman, Berman & Lowell, P. C., 173 AD2d 170, 171 [1st Dept 1991]). His decision can not be said to have been uninformed or based on faulty advice. The fact that he resigned from his employment from the television program The Four: Battle for Stardom prior to hiring the Defendants and in the wake of these detailed allegations against him highlights the speculative failure of his claim against these Defendants. Finally, Mr. Walk’s envious allegation that others accused of misconduct have received more money in their settlements with their employers is simply not a fact leveled against these Defendants that they gave him bad advice to settle based on the specific allegations made against him and the shroud of predatory conduct with which he was cloaked.”

It is rare for a CPLR 3211 motion to dismiss a legal malpractice case is denied in Supreme Court and reversed on appeal.  That’s what happened in Frydco Capital Group, LLC v Carlton Fields, P.A.  2022 NY Slip Op 02619  Decided on April 21, 2022  Appellate Division, First Department.

“The legal malpractice claims should have been dismissed pursuant to CPLR 3211(a)(7) on the ground that plaintiffs failed to plead how defendants’ alleged acts or omissions proximately caused plaintiffs to sustain any loss in connection with a Florida real estate transaction (see Pellegrino v File, 291 AD2d 60, 63-64 [1st Dept 2002]).

In addition, the legal malpractice claims should have been dismissed pursuant to CPLR 3211(a)(1). Defendants submitted documentary evidence, including the purchase agreement for the property and the seller’s partial assignment of its interests in that agreement, that refutes plaintiffs’ allegations that the seller’s alleged breach of the purchase agreement prevented the closing from occurring, resulting in plaintiffs’ loss of the increased value of the property (see Ladera Partners, LLC v Goldberg, Scudieri & Lindenberg, P.C., 157 AD3d 467, 467 [1st Dept 2018]). The purchase agreement between plaintiff Southside and the seller explicitly permitted the seller to engage in a section 1031 transfer, required Southside to cooperate and did not prohibit the seller from assigning its interest as long as it did not allow another party to acquire the property. The assignment agreement between the seller and the assignee clearly bound the assignee to all of the seller’s obligations to plaintiffs. Moreover, the assignment agreement and correspondence from seller’s counsel made clear that it was not the seller who delayed and prevented the closing, but rather, plaintiff Frydco, Southside’s managing member, which did so unilaterally.

Plaintiffs’ new theory of causation, that plaintiffs’ position in prior litigation with the seller was weakened by an unauthorized consent to the assignment signed by Southside’s former manager with defendants’ knowledge, is unpreserved for appellate review as it is raised for the first time on appeal. In any event, this new theory of causation is equally speculative concerning how defendants proximately caused any loss to plaintiffs, who now acknowledge that they elected not to close and to instead seek return of their down payments and other damages from the seller. It is thus insufficient to state a claim for legal malpractice.”

Drasche v Edelman & Edelman  2022 NY Slip Op 00044 [201 AD3d 434]
January 6, 2022 Appellate Division, First Department is the story of an offer (or was there really one) which was not accepted, and if it was made, not communicated.  Beyond that information, the rest is hazy,

“Plaintiff retained defendant Edelman & Edelman, P.C. (the Edelman firm) to undertake an investigation and lawsuit against Banana Republic, LLC and/or The Gap, Inc. for injuries she allegedly sustained at the retail establishment. The Edelman firm commenced the underlying lawsuit in Supreme Court, New York County. The retainer agreement between the parties contained the following terms: “Edelman & Edelman is authorized to enter into negotiations regarding possible settlement, but will not settle or compromise this matter without the prior express consent of the Client. Edelman & Edelman will keep Client informed of the status of this matter and consult with Client when appropriate.”

The underlying defendants ultimately prevailed on a motion for summary judgment, which was affirmed by this Court in Turso-Drasche v Banana Republic, LLC (172 AD3d 485 [1st Dept 2019]). Plaintiff then commenced the instant action against the Edelman firm and two of its attorneys, asserting three causes of action, each of which sought to recover for alleged “damages” arising from defendants’ failure to “advise” her of a purported settlement offer by the underlying defendants. The first cause of action sounded in negligence/malpractice, the second for breach of contract, and the third for violation of rule 1.4 of the Rules of Professional Conduct (22 NYCRR 1200.0).

We find that Supreme Court correctly dismissed the complaint in its entirety. Plaintiff’s claim for legal malpractice is based upon a vague and conclusory assertion that after her deposition, counsel for the defendants in the underlying action made a settlement offer to her attorney, and that her attorney did not relay the offer to her. Regardless, the complaint fails to allege that plaintiff would have accepted the offer if she had known of it (see Rubenstein & Rubenstein v Papadakos, 31 AD2d 615, 615 [1st Dept 1968], affd 25 NY2d 751 [1969]).

Further, plaintiff fails to allege that, but for defendants’ alleged negligence, she would have accepted the settlement offer and would not have sustained any damages (see Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562 [2d Dept 2003], lv denied 100 NY2d 511 [2003]; Cannistra v O’Connor, McGuinness, Conte, Doyle, Oleson & Collins, 286 AD2d 314, 316 [2d Dept 2001], lv denied 97 NY2d 611 [2002]).”

Joseph v Fensterman  2022 NY Slip Op 02398  Decided on April 13, 2022 Appellate Division, Second Department is a reversal, in part, of what we believe are all too common legal malpractice CPLR 3211 dismissals.

“In November 2014, the plaintiffs commenced this action, inter alia, to recover damages for violations of Judiciary Law § 487 and legal malpractice. The plaintiffs thereafter amended the complaint, asserting, as is relevant to this appeal, causes of action to recover damages for violations of Judiciary Law § 487, fraud, legal malpractice, breach of fiduciary duty, tortious interference with prospective business relations, breach of contract, and an accounting. The defendants then moved, inter alia, pursuant to CPLR 3211(a)(1), (5), and (7) to dismiss the amended complaint. As is relevant to this appeal, in an order dated January 3, 2018, the Supreme Court granted those branches of the defendants’ motion which were to dismiss the first through sixth, eighth, tenth, thirteenth, and fourteenth causes of action in the amended complaint. The plaintiffs appeal.

“On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory” (Gorbatov v Tsirelman, 155 AD3d 836, 837). “‘Whether a plaintiff can [*2]ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (Bianco v Law Offs. of Yuri Prakhin, 189 AD3d 1326, 1329, quoting EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19; see Carlson v American Intl. Group, Inc., 30 NY3d 288, 298).

The Supreme Court should have denied that branch of the defendants’ motion which was to dismiss the first cause of action in the amended complaint, which sought to recover damages for violations of Judiciary Law § 487 related to the defendants’ representation of the plaintiffs in a litigation concerning the sale of the plaintiffs’ interests in three skilled nursing facilities known as New Franklin, Fort Tyron, and Split Rock (hereinafter the New Franklin litigation). An attorney is liable under Judiciary Law § 487(1) if he or she “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party,” and under Judiciary Law § 487(2) if he or she “[w]illfully delays his [or her] client’s suit with a view to his [or her] own gain” (see Melcher v Greenberg Traurig, LLP, 23 NY3d 10, 12; Gorbatov v Tsirelman, 155 AD3d at 838). “‘Allegations regarding an act of deceit . . . must be stated with particularity'” (Gorbatov v Tsirelman, 155 AD3d at 838, quoting Facebook, Inc. v DLA Piper LLP [US], 134 AD3d 610, 615).

Here, the first cause of action adequately pleaded a claim to recover damages for violations of Judiciary Law § 487 (see Bianco v Law Offs. of Yuri Prakhin, 189 AD3d at 1329), as it alleged that the defendants Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP (hereinafter the law firm), Howard Fensterman, and Sarah C. Lichtenstein intentionally interfered with the settlement of the New Franklin litigation, causing years of additional litigation, in order to generate legal fees in the amount of $1.7 million, which amount the plaintiffs alleged was paid from the proceeds of the sale of the skilled nursing facilities. The plaintiffs alleged that they were entitled to a portion of those proceeds. The amended complaint also alleged that Howard Fensterman made false statements to the plaintiffs, and filed a motion without the plaintiffs’ knowledge or consent. The Supreme Court’s determination that Howard Fensterman’s conduct during the settlement of the New Franklin litigation “was simply a product of his conflict of interest in representing both buyers and sellers in the New Franklin and Fort Tyron transactions” is a premature factual finding inappropriate at this stage of the litigation (see Warney v State of New York, 16 NY3d 428, 436-437; Matter of Gerard P. v Paula P., 186 AD3d 934, 938).

The Supreme Court also should have denied that branch of the defendants’ motion which was to dismiss the second cause of action, to recover damages for fraud the plaintiffs allege was perpetrated against the plaintiff Anthony Bacchi and Martin Farbenblum, the decedent of the plaintiff Stanley Joseph, by the law firm and Howard Fensterman. “‘The elements of a cause of action for fraud require a material misrepresentation of a fact, knowledge of its falsity, an intent to induce reliance, justifiable reliance by the plaintiff and damages'” (Emby Hosiery Corp. v Tawil, 196 AD3d 462, 464, quoting Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559). “‘When a plaintiff brings a cause of action based upon fraud, the circumstances constituting the wrong shall be stated in detail'” (Edelman v Berman, 195 AD3d 995, 997, quoting Sargiss v Magarelli, 12 NY3d 527, 530 [internal quotation marks omitted]; see CPLR 3016[b]). “However, the pleading requirements of CPLR 3016(b) may be met when the facts are sufficient to permit a reasonable inference of the alleged conduct” (Berkovits v Berkovits, 190 AD3d 911, 915; see Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 492).

Here, the second cause of action pleaded with the necessary particularity the elements of fraud against the law firm and Howard Fensterman (see Emby Hosiery Corp. v Tawil, 196 AD3d at 465). Contrary to the defendants’ contention, “‘[a] false statement, promissory in nature, may be deemed the statement of a material existing fact, because it falsely represents the [declarant’s] state of mind and the state of his [or her] mind is a fact'” (Neckles Bldrs., Inc. v Turner, 117 AD3d 923, 925, quoting Tribune Print. Co. v 263 Ninth Ave. Realty, 57 NY2d 1038, 1041 [internal quotation marks omitted]). Viewed in the light most favorable to the plaintiffs, the second cause of action alleged, inter alia, that Howard Fensterman and the law firm promised to transfer a 10% membership interest in a skilled nursing facility known as Bay Park Center for Nursing and Rehabilitation, LLC (hereinafter the Bay Park Operating Company), to Martin Farbenblum and another 10% interest to Bacchi, after the acquisition of the Bay Park Operating Company closed, if Martin Farbenblum and Bacchi made capital contributions to the Bay Park Operating Company. The second cause of action also alleged, among other things, that Howard Fensterman and the law firm made that promise while [*3]harboring an undisclosed intention never to transfer those 10% membership interests and that Martin Farbenblum and Bacchi detrimentally relied on this representation by Howard Fensterman and the law firm by making the full capital contribution (see Neckles Bldrs., Inc. v Turner, 117 AD3d at 925-926).”

Nexus Captial Invs, LLC v. Fleischmann, 2022 NY Slip Op 30808(U) March 10, 2022 Supreme Court, Kings County Docket Number: Index No. 512222/2021 Judge: Leon Ruchelsman is an example of what to do when the statute of limitation is approaching yet the underlying case has not concluded.  Here, “According to the complaint, on October 4, 2018 the plaintiff
loaned $5,200,000 to an entity called NY Ave Lofts LLC. The defendant David Fleischmann Esq. drafted the loan documents on behalf of the plaintiff. In connection with the loan the
borrower executed a mortgage in the amount of the loan against 132 Walnut Street, 25.-31 New York Avenue and 13-23 New York Avenue, all located in Newark New Jersey. Further, the defendant also drafted an Assignment of Leases and Rents and recorded a UCC-1 against the above named mortgaged properties. In addition, Jacob Tauber executed a guaranty concerning the outstanding loan. The borrower failed to make all the required payments and defaulted in April 2019. To avoid foreclosure of the properties Tauber requested the ability to borrow money from TBG Funding LLC to pay off the debt. Further, TBG agreed to lend additional funds, subordinate to the first loan, in efforts to develop the properties. Thus, a two tiered loan by TBG  was executed wherein the first mortgage remained a lien on the property and TBG loaned the borrower $3,000,000 as a paydown and an additional $2,470,000  in the form of a new note and mortgage which was intended to be subordinate to plaintiff’s remaining lien. Amended loan documents including an amended note and mortgage were executed reflecting a new loan balance of $2,470,000. Further, as noted, the plaintiff agreed that its mortgage would be subordinated to TBG’ s loan. According to the amended complaint ”upon receipt of the partial Payoff, Defendants, as Lender’s counsel, were  required to immediately and simultaneously satisfy the First Mortgage and record the Amended Mortgage. This arrangement would have been equivalent to a subordination agreement, providing TBG priority lien while maintaining the Lender’ s lien (as reduced by the payment)” (see, Amended Complaint, lZ2) . The amended complaint alleges the amended loan documents were never recorded. ”

“However, a dismissal of the action could forever forestall the ability to assert any malpractice claim since by the time any claim could ripen the statute of limitations could pass. In
Collins v. Felder, 251 F.Supp3d 634 [S.D.N.Y. 2017] the court was faced with this exact dilemma, balancing the retention of the action to preserve any potential claims and allowing discovery to proceed on presently unripe claims. The court denied the motion to dismiss the complaint on ripeness grounds but stc3.yed any further proceedings until a final judgement on appeal was rendered. The appeal was the basis the malpractice claim was unripe. This has the effect of preserving the allegations of malpractice but staying the burdens of discovery ±n case they prove to be unwarranted.  Therefore, the_ court hereby denies the motion seeking to dismiss the _action, however, all discovery is stayed pending the outcome of the foreclosure sale. The motion is granted to this extent. “

Sanctions?  Always a fear.  Costs, the same.   In Kantrowitz, Goldhamer & Graifman, P.C. v Ayrovainen  2022 NY Slip Op 02256 Decided on April 6, 2022,  Appellate Division, Second Department reversed a sanction.

“ORDERED that the decision and order is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, and that branch of the plaintiff’s motion which was pursuant to 22 NYCRR 130-1.1 to impose sanctions against the defendant’s attorney is denied.

In June 2012, Kantrowitz, Goldhamer & Graifman, P.C. (hereinafter KGG), a law firm, commenced this action against Cindy Ann Ayrovainen, also known as Cindy Lauder (hereinafter Lauder), inter alia, to recover damages for breach of contract and on an account stated. The complaint alleged that in January 2009, Lauder executed a written retainer agreement hiring KGG to represent her in a pending matrimonial action, but at the conclusion of representation, Lauder failed to pay her outstanding bills. In her answer, Lauder alleged as an affirmative defense that KGG had breached the retainer agreement and committed legal malpractice during its representation of her. In March 2013, Lauder commenced an action against KGG and two KGG attorneys, inter alia, to recover damages for legal malpractice (hereinafter the legal malpractice action). In an order dated November 17, 2016, the Supreme Court granted the motion of KGG and the KGG attorneys for summary judgment dismissing the second amended complaint in the legal malpractice action.

After a nonjury trial in this action, KGG moved, inter alia, pursuant to 22 NYCRR 130-1.1 to impose sanctions against Lauder’s attorney, Karen Winner, for engaging in frivolous conduct during the course of this action. In a decision and order dated March 27, 2018, the Supreme Court, among other things, granted that branch of KGG’s motion which was to impose sanctions against Winner and directed Winner to pay the sum of $500 to the Lawyer’s Fund for Client Protection. Lauder appeals.

“In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct” (22 NYCRR 130-1.1[a]; see Weissman v Weissman, 116 AD3d 848, 849). “[C]onduct is frivolous if . . . (1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false” (22 NYCRR 130-1.1[c]; see Scialdone v Stepping Stones Assoc., L.P., 148 AD3d 955; Weissman v Weissman, 116 AD3d at 849). Here, the Supreme Court improvidently exercised its discretion in granting that branch of KGG’s motion which was pursuant to 22 NYCRR 130-1.1 to impose sanctions against Winner. Winner’s conduct did not rise to the level of frivolous within the definition of 22 NYCRR 130-1.1 (see Rojas v Hazzard, 171 AD3d 819, 820; Deutsche Bank Natl. Trust Co. v Homar, 163 AD3d 522, 524).”

When the attorney-client relationship ends, and continuous representation also ends are the subject of a significant number of decisions.  The requirements for continuous representation, that there is actual work performed, that there is a continuing relationship of trust and confidence and that there is a shared understanding of the need for further work are all required.  When one or the other fails, continuous representation is no longer continuous.

In Walsh v Wallace Law Off. 2022 NY Slip Op 02218 Decided on March 31, 2022 the Appellate Division, First Department applied a bright line rule, utilizing the consent to change attorney as the day continuous representation ended.

“Defendants established prima facie that this legal malpractice action was time-barred, as it was commenced on May 26, 2020, more than three years from the date it accrued. The three-year statute of limitations began to run on March 16, 2017, when a consent to change attorney form was executed by plaintiff, defendant Wallace Law Office, and defendant Leav & Steinberg, LLP (L&S), the incoming counsel (CPLR 214[6]; Frost Line Refrig., Inc. v Gaswirth, Mirsky & Stein, LLP, 25 AD3d 532, 532-533 [2d Dept 2006]). The form was also notarized by a name partner of L&S. This unambiguous written document constitutes documentary evidence that the attorney-client relationship between plaintiff and the Wallace defendants ended more than three years before plaintiff commenced this action (see Seaman v Schulte Roth & Zabel LLP, 176 AD3d 538, 539 [1st Dept 2019]).

We reject plaintiff’s argument that Supreme Court erred in failing to consider the doctrine of continuous representation. The complaint alleged no “clear indicia of an ongoing, continuous, developing[,] and dependent relationship between the client and the attorney” or a “mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” (Matter of Merker, 18 AD3d 332, 332-333 [1st Dept 2005] [internal quotation marks omitted]). Equally unavailing is plaintiff’s speculative contention that discovery is required as to the nature, if any, of the Wallace defendants’ continuing involvement in plaintiff’s underlying personal injury lawsuit.”