Real Estate entities, such as an apartment building will always have insurance against trip and falls.  However, that type of general liability insurance typically will not provide insurance against a claim of a person injured while working at the building, such as in a construction accident.  In Ruiz v 829 Realty LLC  2021 NY Slip Op 05834  Decided on October 26, 2021  Appellate Division, First Department the claim against the  attorneys is dismissed.

“Contrary to defendant/third-party plaintiff 829 Realty, LLC’s contentions, the documentary evidence submitted by Acceptance Indemnity Insurance Co. (Acceptance), 829 Realty’s insurer, utterly refuted 829 Realty’s allegations that disclaimer of coverage in the main personal injury action was improper (see generally CPLR 3211[a][1]; Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Atlantic Mut. Ins. Co. v Terk Tech. Corp., 309 AD2d 22, 29 [1st Dept 2003]). The complaint in the main action, which was properly considered by the motion court, alleged that on January 25, 2018, plaintiff “fell from a height” at the premises owned by 829 Realty, while working for defendant Arsh Gen Construction Corp., which was hired by 829 Realty. Those allegations do not suggest a reasonable possibility of coverage in light of the relevant contractor’s exception, which excluded coverage for claims premised on personal injury sustained by an employee of an independent contractor while working on behalf of an insured, or on the job site but not working for an insured (see generally City of New York v Wausau Underwriters Ins. Co., 145 AD3d 614, 617 [1st Dept 2016]). The third-party complaint and the affidavit from 829 Realty’s member did not raise an issue of fact as to whether Acceptance had actual knowledge of facts establishing a reasonable possibility of coverage, because neither directly countered plaintiff’s factual allegations that he was working for a contractor at the premises when his accident occurred (id.).

829 Realty’s arguments regarding the dismissal of its claims as against Molod, Spitz & Desantis, its former counsel in the main action, are not persuasive because a client may not evade the pleading requirements applicable to a legal malpractice cause of action by framing allegations, which sound in malpractice, in terms of breach of fiduciary duty or breach of contract (see Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 10-11 [1st Dept 2008]; e.g. Cherry Hill Mkt. Corp. v Cozen O’Connor P.C., 118 AD3d 514, 514 [1st Dept 2014]; Boslow Family Ltd. Partnership v Kaplan & Kaplan, PLLC, 52 AD3d 417, 417 [1st Dept 2008], lv denied 11 NY3d 707 [2008]; Walter v Castrataro, 94 AD3d 872, 873 [2d Dept 2012]).”

It’s relatively rare to see an AD opinion which goes into the details of a trial, and makes such certain and minute decisions on evidentiary matters.  Disa Realty, Inc. v Rao  2021 NY Slip Op 05692 Decided on October 20, 2021 Appellate Division, Second Department involves a claim of Judiciary Law § 487 and is that case.  Conclusion first: “We find that the cumulative effect of the Supreme Court’s improvident rulings with respect to the continuance and the admissibility of the defendant’s evidence was to deprive the defendant of a fair trial (see Appleton v 205 E. 17th St., LLC, 101 AD3d at 772-773).”

“Here, the defendant demonstrated that both this action and the 107-07 action arise from similar transactions, concern the same parties, and involve common questions of law and fact (see Rhoe v Reid, 166 AD3d at 920). Indeed, the two actions are “based on substantially identical loan documents” (Disa Realty, Inc. v Rao, 168 AD3d at 1038). Nevertheless, the Supreme Court denied, without reaching its merits, that branch of the defendant’s motion which was to consolidate the actions, on the grounds that the court in the 107-07 action had already denied a similar motion, and a final judgment of foreclosure and sale already had been entered in that action. Under those circumstances, the 107-07 action was not a pending action which could be consolidated with the instant action pursuant to CPLR 602(a) (see IndyMac Bank, F.S.B. v Vincoli, 105 AD3d 704, 707). However, the denial, in the 107-07 action, of the motion to consolidate the two actions, and the judgment of foreclosure and sale entered in that action, were subsequently reversed by this Court (see Disa Realty, Inc. v Rao, 168 AD3d at 1037). Accordingly, in the instant action, that branch of the defendant’s motion which was to consolidate the two actions should not have been denied. In the interest of judicial economy, rather than remit the matter to the Supreme Court for consideration of the motion on the merits, we find that the defendant has established that consolidation is appropriate here, as “it will avoid unnecessary duplication of trials, save unnecessary costs and expense, and prevent an injustice which would result from divergent decisions based on the same facts” (Viafax Corp. v Citicorp Leasing, Inc., 54 AD3d 846, 850; see Rhoe v Reid, 166 AD3d at 921). Contrary to the plaintiff’s contention, it has not demonstrated that consolidation will cause it to suffer any prejudice to a substantial right (see U.S. Bank, N.A. v Westwood, LLC, 115 AD3d 935, 937-938; Viafax Corp. v Citicorp Leasing, Inc., 54 AD3d at 850).

“In reviewing a determination made after a nonjury trial, this Court’s power is as broad as that of the trial court, and this Court may render the judgment it finds warranted by the facts, taking into account that, in a close case, the trial court had the advantage of seeing and hearing [*3]the witnesses” (US Bank N.A. v Pierre, 189 AD3d 1309, 1310 [internal quotation marks omitted]; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499; Deutsche Bank Natl. Trust Co. v Bucicchia, 193 AD3d 682, 685). “An error in a ruling of the court shall be disregarded if a substantial right of a party is not prejudiced” (CPLR 2002).

The defendant testified that he had paid the plaintiff a total of $805,000 in cash and checks to Amarain and others, namely, relatives and associates of Amarain, some of whom the defendant did not know, for fictional services the defendant never received, all at the behest of Amarain, to be credited toward the mortgages on the subject property and the 107-07 property. He further testified that the purpose of the third-party payments was to enable the plaintiff to avoid paying taxes on the money. Critical to proving this defense were audio recordings, and transcriptions thereof, of conversations between the defendant and Amarain, and between the defendant and Amarain’s employee, Lakhram Indel, regarding the cash payments and checks to third parties and their purpose. The Supreme Court improvidently exercised its discretion multiple times in ruling that certain items of evidence, critical to the defense at issue on trial, were inadmissible on various grounds. “Moreover, the probative value of this evidence was not substantially outweighed by any danger that it would unfairly prejudice the respondent[ ]” (Appleton v 205 E. 17th St., LLC, 101 AD3d 772, 773). First, the court cited no statute or case law when it refused, in this action, to admit any document that had been marked for identification in the 107-07 action, and there does not appear to be any legal basis for such a ruling. Second, the court improvidently exercised its discretion in declining to consider certain documents created by the defendant’s dietary supplement business, bearing written notes to the effect that payment for dietary supplements purchased by Amarain and his wife would be credited toward the mortgages. Mistakenly concluding that the documents constituted medical records, the court returned them to the defendant, because they did not have “a proper authorization of the release of medical records,” and advised the defendant “to be very careful when it comes to people’s medical records.”

The Supreme Court also improvidently exercised its discretion in denying the defendant’s request, by motion filed on February 20, 2018, for “a first single adjournment of trial” so as to have “[t]ime to pay and call Experts crucial in this case for audio and forensic document examiners who submitted affidavits” (see Zysk v Bley, 24 AD3d 757, 758). Specifically, the defendant hired Paul Ginsberg, an audio expert, to “determine the authenticity” of 17 conversation segments that were on the recordings he received from the defendant. Ginsberg had prepared written transcripts of the conversations, transferred the recordings to CDs, and written a report with respect to the recorded evidence, in which he concluded, based on his examination of the recordings, that “[a]ll segments [were] continuous, with no observation of discontinuities,” and “[t]he recorded segments accurately reflect[ed] the words and conversation, as spoken at the time of recording.” The court first denied the defendant’s request for a continuance to arrange for Ginsberg to testify and provide a foundation for the recordings, and then ruled that the recordings were inadmissible, because, although the defendant had testified that they had left his custody and had been in the custody of Ginsberg, Ginsberg “was not [there] to testify as to [the recordings’] authenticity before [the court].”

 

Fraud on the court is not really “fraud” as it is generally used. Pritsker v Zamansky LLC  2021 NY Slip Op 05678 Decided on October 19, 2021
Appellate Division, First Department discusses a selective quote and whether it was fraud on the court.

“As the basis for seeking vacatur of the November 2018 order, plaintiff postulates that defendants engaged in a fraud on the court. Plaintiff asserts that defendants submitted a deceptively elided quotation from the underlying arbitral decision, which was intended to suggest that plaintiff himself was responsible for the unsuccessful investment at issue, rather than the investment firm he commenced the arbitration against. The purpose of this, he contends, was to immunize defendants from liability, since plaintiff could not prevail against them for legal malpractice if there was no meritorious claim to pursue in the first place.

Plaintiff’s fraud theory is not viable. Notably, plaintiff admits that, in addition to the selectively edited quotation, defendants submitted the entire arbitration decision as an exhibit. Nor does plaintiff claim that defendants’ quotation was literally misquoted or otherwise inaccurate. These facts cut sharply against plaintiff’s theory. Defendants accurately noted that they were selectively quoting from a larger document, and then attached the entire source document for the court’s reference and verification. Defendants gave their opinion of the import of the quoted language. Again, however, defendants also submitted the entire document to the court, so that it might shape its own view of the arbitral decision. We see here only advocacy by defendants, not fraud. Since plaintiff has not met his burden of showing fraud, he has not shown any entitlement to relief under CPLR 5015(a)(3) either (see Molina v Chladek, 140 AD3d 523, 524 [1st Dept 2016]; Miller v Lanzisera, 273 AD2d 866, 868 [4th Dept 2000]).”

Plaintiff enunciated a good legal malpractice claim, but failed to state a good damages claim for loss of sales value in real estate,  In 83 Willow, LLC v Apollo  2020 NY Slip Op 05843 [187 AD3d 563]  October 20, 2020
Appellate Division, First Department the court wrote:

“For purposes of the motion, defendant does not dispute that his alleged failure to advise plaintiff of the consequences of a contingency clause in its contract to sell property was negligent, but contends that plaintiff cannot demonstrate that his negligence was the “but for” causation of ascertainable damages. On this record, triable issues of fact exist as to whether, but for defendant’s failure to inform plaintiff’s principal that it could be locked into the sale agreement in perpetuity if it did not obtain municipal approval for redevelopment, it would not have entered into the contract as written and would have avoided litigation with the buyer who sued for specific performance (see Leggiadro, Ltd. v Winston & Strawn, LLP, 151 AD3d 413 [1st Dept 2017]; Escape Airports [USA], Inc. v Kent, Beatty & Gordon, LLP, 79 AD3d 437, 438-439 [1st Dept 2010]). Plaintiff’s alleged damages, as they relate to legal expenses defending the specific performance action, may be found to be proximately related to defendant’s negligent advice related to the issue of the contingency clause (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 443).

However, plaintiff’s claims to recover damages based on the difference between the price it agreed to in settlement and either the original contract price or the fair market value of the property as of the date of closing were properly dismissed. The purpose of compensatory damages in attorney malpractice cases is to make the injured party whole. Plaintiff made a substantial profit on the deal, and its principal acknowledged that the settlement price was not much less than the contract price, taking into account a brokerage commission issue and that it did not have to continue incurring costs to obtain zoning approvals. Furthermore, plaintiff cannot recover legal fees it incurred to defend the slander of title matter and to prosecute the case to obtain the escrow funds since those suits are not causally related to defendant’s alleged negligence (see Pyne v Block & Assoc., 305 AD2d 213 [1st Dept 2003]).”

Accountants (in general) may rely upon information given to them by the client and are not under a general requirement to investigate.  This state of affairs doomed Deane v Brodman 2021 NY Slip Op 01842 [192 AD3d 577] March 25, 2021 Appellate Division, First Department.

“Defendants are entitled to summary judgment dismissing the professional negligence claims asserted against them as plaintiff has not offered evidence of a departure from a recognized and accepted professional standard for accountants. “A party alleging a claim of accountant malpractice must show that there was a departure from the accepted standards of practice” (KBL, LLP v Community Counseling & Mediation Servs., 123 AD3d 488, 488 [1st Dept 2014]). Plaintiff does not identify any applicable professional standard which would have required defendants to inquire whether the transactions at issue were approved in accordance with the procedures contained in the operating agreement. To the contrary, the standards proffered by plaintiff’s expert permit an accountant engaged for tax preparation services to rely on information furnished by the taxpayer unless it appears to be incorrect, incomplete or inconsistent. There is no allegation here that the information provided to defendants was incorrect, incomplete or inconsistent.”

Gill v. Doubherty, 2020 NY Slip Op 06758 [188 AD3d 1008] November 18, 2020 Appellate Division, Second Department is a reversal of Supreme Court’s denial of a CPLR 3211 motion.

“In an action, inter alia, to recover damages for violation of Judiciary Law § 487 and defamation, the defendants Iona College and Kathleen McElroy appeal, and the defendants Anthony D. Dougherty and Tarter Krinsky & Drogin, LLP, separately appeal, from an order of the Supreme Court, Westchester County (Gerald E. Loehr, J.), entered May 13, 2019. The order denied the separate motions of the defendants Iona College and Kathleen McElroy and the defendants Anthony D. Dougherty and Tarter Krinsky & Drogin, LLP, pursuant to CPLR 3211 (a) to dismiss the amended complaint insofar as asserted against each of them.

Ordered that the order is reversed, on the law, with one bill of costs, and the motion of the defendants Iona College and Kathleen McElroy and the defendants Anthony D. Dougherty and Tarter Krinsky & Drogin, LLP, pursuant to CPLR 3211 (a) to dismiss the amended complaint insofar as asserted against each of them is granted.

The plaintiff commenced this action, inter alia, to recover damages for violation of Judiciary Law § 487 and defamation against Anthony D. Dougherty, Tarter Krinsky & Drogin, LLP, Iona College (hereinafter Iona), and Kathleen McElroy. The plaintiff worked for the City of New Rochelle and previously worked as General Counsel for Iona. Dougherty worked for the law firm Tarter Krinsky & Drogin, LLP (hereinafter together the TKD defendants). McElroy worked as General Counsel for Iona (hereinafter together the Iona defendants).”

“We disagree with the Supreme Court’s determination to deny the Iona defendants’ motion pursuant to CPLR 3211 (a) to dismiss the amended complaint insofar as asserted against them. The statements made with respect to the plaintiff in the prior hybrid action/proceeding were pertinent to that action/proceeding, and were therefore protected by absolute privilege (see Ifantides v Wisniewski, 181 AD3d 575, 576 [2020]; Weinstock v Sanders, 144 AD3d 1019, 1021 [2016]; Brady v Gaudelli, 137 AD3d 951, 952 [2016]; Rabiea v Stein, 69 AD3d 700, 701 [2010]). Further, the context of the complained-of statement in a campus publication was such that a reasonable reader would have concluded that he or she was reading an opinion, and not facts, about the plaintiff (see Rosner v Amazon.com, 132 AD3d 835, 837 [2015]; Silverman v Daily News, L.P., 129 AD3d 1054, 1055 [2015]; Hollander v Cayton, 145 AD2d 605, 605-606 [1988]). Likewise, the cause of action alleging prima facie tort failed because the plaintiff did not sufficiently plead “malicious intent or disinterested malevolence as the sole motive for the challenged conduct” of the Iona defendants, and failed to sufficiently plead special damages (Ahmed Elkoulily, M.D., P.C. v New York State Catholic Healthplan, Inc., 153 AD3d 768, 772 [2017]; see Nachbar v Cornwall Yacht Club, 160 AD3d 972, 973-974 [2018]).

Additionally, we disagree with the Supreme Court’s determination to deny the TKD defendants’ motion pursuant to CPLR 3211 (a) to dismiss the amended complaint insofar as asserted against them. The plaintiff failed to allege sufficient facts to establish that Dougherty intended to deceive through his actions in the prior hybrid action/proceeding (see Klein v Rieff, 135 AD3d 910, 912 [2016]; Seldon v Lewis Brisbois Bisgaard & Smith LLP, 116 AD3d 490, 491 [2014]; see also Doscher v Meyer, 177 AD3d 697, 699 [2019]). Notably, “ '[a]ssertion of unfounded allegations in a pleading, even if made for improper purposes, does not provide a basis for liability under [Judiciary Law § 487]’ ” (Ticketmaster Corp. v Lidsky, 245 AD2d 142, 143 [1997], quoting Thomas v Chamberlain, D’Amanda, Oppenheimer & Greenfield, 115 AD2d 999, 999-1000 [1985]). Moreover, the cause of action alleging a violation of Judiciary Law § 487 failed to sufficiently allege that the plaintiff suffered an injury proximately caused by any claimed deceit or collusion on the part of Dougherty, and no such injury can reasonably be inferred from the amended complaint (see Gumarova v Law Offs. of Paul A. Boronow, P.C., 129 AD3d 911, 911 [2015]). The cause of action alleging defamation failed because the challenged statements were absolutely privileged as a matter of law and cannot be the basis for a defamation action (see Ifantides v Wisniewski, 181 AD3d at 576; Weinstock v Sanders, 144 AD3d at 1021; Brady v Gaudelli, 137 AD3d at 952; El Jamal v Weil, 116 AD3d 732, 734 [2014]; Rabiea v Stein, 69 AD3d at 701). Tarter Krinsky & Drogin, LLP, cannot be held vicariously liable for Dougherty’s primary liability absent a cognizable theory of liability against Dougherty (see Karaduman v Newsday, Inc., 51 NY2d 531, 546 [1980]; Pereira v St. Joseph’s Cemetery, 54 AD3d 835, 837 [2008]; Rojas v Feliz, 24 AD3d 652 [2005]).”

Pinkesz Mut. Holdings, LLC v Pinkesz  2021 NY Slip Op 05359  Decided on October 6, 2021 Appellate Division, Second Department makes an interesting distinction between “civil fraud upon the court” and Judiciary Law §487.  There is a question raised (and not decided) whether certain conduct during the course of litigation can give rise to a private cause of action outside of Judiciary Law § 487,

“The Supreme Court also should have granted dismissal of Edward’s and Anthony’s third-party causes of action alleging violations of Judiciary Law § 487, which are asserted against Rubenstein, Horowitz & Rubenstein, Feder, RESF, Goldberg, and Herrick Feinstein. As a threshold matter, neither Rubenstein nor Horowitz & Rubenstein are alleged to have acted as attorneys in this action, and Judiciary Law § 487 “applies to an attorney acting in his or her capacity as an attorney, not to a party who is represented by counsel and who, incidentally, is an attorney” (Oakes v Muka, 56 AD3d 1057, 1058). The allegations of wrongdoing against Feder, RESF, Goldberg, and Herrick Feinstein are equally deficient inasmuch as they fail to allege specific facts from which it could be reasonably inferred that Feder, RESF, Goldberg, and Herrick Feinstein acted with the requisite degree of scienter (see Sammy v Haupel, 170 AD3d 1224, 1225), and/or otherwise fail to allege specific facts from which it could be inferred that the alleged deceit was the proximate cause of any injury to Edward or Anthony (see Parks v Leahey & Johnson, 81 NY2d 161, 164-165; Gumarova v Law Offs. of Paul A. Boronow, P.C., 129 AD3d 911, 912).

Further, the Supreme Court should have granted dismissal of Edward’s cross claim, counterclaim, and third-party cause of action alleging civil fraud upon the court insofar as asserted against each of the appellants. Even assuming, without deciding, that judicially sanctionable conduct during the course of litigation can give rise to a private cause of action for damages outside of Judiciary Law § 487 (cf. Bill Birds, Inc. v Stein Law Firm, P.C., 35 NY3d 173, 178; see generally CDR Créances S.A.S. v Cohen, 23 NY3d 307, 315; ), no such cause of action has been pleaded in this case (see DeMartino v Abrams, Fensterman, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, 189 AD3d 774, 775).”

Although the Appellate Division did not really link the case facts to the blackletter law, Bianco v Law Offs. of Yuri Prakhin  2020 NY Slip Op 07849 [189 AD3d 1326] December 23, 2020 Appellate Division, Second Departmentis worthwhile reading for the discussion of burdens in a CPLR 3211 setting and the basic definition of a Judiciary Law § 487 claim.

“On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see CPLR 3026). The facts as alleged in the complaint are accepted as true, the plaintiff is afforded the benefit of every possible favorable inference, and the court determines only whether the facts as alleged fit within any cognizable legal theory (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]). Under CPLR 3211 (a) (1), a dismissal is warranted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law (see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d at 88). In order for evidence to qualify as documentary, it must be unambiguous, authentic, and undeniable (see Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996-997 [2010]; Fontanetta v John Doe 1, 73 AD3d 78, 86 [2010]). “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” (Fontanetta v John Doe 1, 73 AD3d at 84-85 [internal quotation marks omitted]; see First Choice Plumbing Corp. v Miller Law Offs., PLLC, 164 AD3d 756, 758 [2018]). Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211 (a) (1) (see Fox Paine & Co., LLC v Houston Cas. Co., 153 AD3d 673, 678 [2017]; Granada Condominium III Assn. v Palomino, 78 AD3d at 997). Accordingly, the hearing transcripts, affirmation, and affidavit relied upon by the Kletzkin defendants and the Schneider defendants in support of their respective motions do not constitute documentary evidence for the purposes of CPLR 3211 (a) (1). Additionally, the trial counsel agreement between the Schneider defendants and the Kletzkin defendants, which does constitute documentary evidence, did not utterly refute the factual allegations of the complaint and did not conclusively establish a defense to the claims as a matter of law.

On a motion made pursuant to CPLR 3211 (a) (7), the burden never shifts to the nonmoving party to rebut a defense asserted by the moving party (see Sokol v Leader, 74 AD3d 1180, 1181 [2010]). “Unless the motion is converted into one for summary judgment pursuant to CPLR 3211 (c), ‘affidavits may be received for a limited purpose only, serving normally to remedy defects in the complaint,’ and such affidavits ‘are not to be examined for the purpose of determining whether there is evidentiary support for the pleading’ ” (Sokol v Leader, 74 AD3d at 1181, quoting Rovello v Orofino Realty Co., 40 NY2d 633, 635, 636 [1976]; see Nonnon v City of New York, 9 NY3d 825, 827 [2007]). Affidavits submitted by a defendant “will almost never warrant dismissal under CPLR 3211 unless they establish conclusively that [the plaintiff] has no . . . cause of action” (Lawrence v Graubard Miller, 11 NY3d 588, 595 [2008] [emphasis and internal quotation marks omitted]; see Sokol v Leader, 74 AD3d at 1182). “[U]nless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, again dismissal should not eventuate” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). “Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss” (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]; see Carlson v American Intl. Group, Inc., 30 NY3d 288, 298 [2017]; AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 591 [2005]).

Here, the plaintiff adequately pleaded the cause of action alleging legal malpractice against the Kletzkin defendants and the Schneider defendants. Contrary to the contentions of those defendants, neither conclusively established that an application for leave to serve a late notice of [*3]claim or to deem the late notice of claim timely served upon the NYCTA nunc pro tunc would have been futile (see generally Matter of Newcomb v Middle Country Cent. Sch. Dist., 28 NY3d 455, 465 [2016]; Davis v Isaacson, Robustelli, Fox, Fine, Greco & Fogelgaren, 284 AD2d 104, 105 [2001]).

Contrary to the Kletzkin defendants’ contention, the complaint adequately states a cause of action to recover damages for violation of Judiciary Law § 487. Contrary to the Schneider defendants’ contention, the cause of action alleging violation of Judiciary Law § 487 is not duplicative of the cause of action alleging legal malpractice. “A violation of Judiciary Law § 487 requires an intent to deceive (see Judiciary Law § 487), whereas a legal malpractice claim is based on negligent conduct” (Moormann v Perini & Hoerger, 65 AD3d 1106, 1108 [2009]; see Bill Birds, Inc. v Stein Law Firm, P.C., 164 AD3d 635, 637 [2018], affd 35 NY3d 173 [2020]).”

In  Pritsker v Zamansky LLC 2021 NY Slip Op 02767 [194 AD3d 432]
May 4, 2021 Appellate Division, First DepartmentPlaintiff tried to bring this claim in 201`7, only to face dismissal.  When the Claim was brought again, albeit it a different form, it was again dismissed.

“This action is barred by the doctrine of res judicata (claim preclusion) (see generally Matter of Hunter, 4 NY3d 260, 269 [2005]). The dismissal of plaintiff’s 2017 action was on the merits, and not, as plaintiff argues, based on pleading defects (Pritsker v Zamansky LLC, 2018 NY Slip Op 33980[U] [Sup Ct, NY County 2018]; see Feigen v Advance Capital Mgt. Corp., 146 AD2d 556, 558 [1st Dept 1989]). Thus, plaintiff is barred from asserting his previously-pleaded causes of action for legal malpractice, breach of fiduciary duty, and negligence. Plaintiff is also barred from asserting his “new” fraudulent inducement and breach of fiduciary duty causes of action, because at bottom, they arise out of the same transactions as his previously pleaded causes of action. Claim preclusion bars plaintiff’s claims against Jacob Zamansky as well as Zamansky LLC because both were named as defendants in the 2017 action and Jacob Zamansky is in privity with Zamansky LLC (see Rojas v Romanoff, 186 AD3d 103, 108, 112 [1st Dept 2020]). Based on the foregoing, we do not reach the other bases defendants articulate for dismissal.”

Plaintiff tried to use an expert’s report which summarized the estate’s account on a summary judgment opposition in Leeder v Antonucci
2021 NY Slip Op 03978 [195 AD3d 1592] June 17, 2021 Appellate Division, Fourth Department.  It was submitted  after oral argument of the motion.

“Addressing appeal No. 1, we conclude that the court properly granted the cross motion. “[A] necessary element of a cause of action for legal malpractice is that the attorney’s negligence caused a loss that resulted in actual and ascertainable damages” (New Kayak Pool Corp. v Kavinoky Cook LLP, 125 AD3d 1346, 1348 [4th Dept 2015] [internal quotation marks omitted]; see Leeder, 174 AD3d at 1469). Furthermore, “[c]onclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action” (New Kayak Pool Corp., 125 AD3d at 1348 [internal quotation marks omitted]). Here, defendant met his initial burden on the cross motion by establishing that plaintiff’s allegations of damages with respect to the estate cause of action are speculative (see id.; Lincoln Trust v Spaziano, 118 AD3d 1399, 1401-1402 [4th Dept 2014]). In opposition, plaintiff failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). With respect to plaintiff’s opposition, we perceive no error in the court’s rejection of the estate account summary that plaintiff submitted, [*2]which was purportedly prepared by a retained expert. Plaintiff did not submit the summary until nearly a month after the original oral argument on defendant’s cross motion (see Kopeloff v Arctic Cat, Inc., 84 AD3d 890, 890-891 [2d Dept 2011]). Contrary to plaintiff’s contention, the submission was untimely. The fact that the deadline in the court’s scheduling order for disclosure of expert witnesses had not yet passed did not relieve plaintiff of his burden to “lay bare his proof and show that a genuine question of fact exists” in opposition to the cross motion for summary judgment (Oot v Home Ins. Co. of Ind., 244 AD2d 62, 71 [4th Dept 1998]; see also CPLR 3212 [f]). In any event, the estate account summary is conclusory, speculative, and insufficient to raise a triable issue of fact (see generally Feldmeier v Feldmeier Equip., Inc., 164 AD3d 1093, 1099 [4th Dept 2018]).”