Burke, Albright, Harter & Rzepka LLP v Sills  2020 NY Slip Op 05322 [187 AD3d 1507] October 2, 2020 Appellate Division, Fourth Department is an upstate slow legal fee – legal malpractice estate claim that percolated for 16 years before ending abruptly.

“In 2016, the third attorney to represent the coexecutors was granted permission to withdraw. In 2017, Robert passed away, and no further action occurred on the case until March 2018, when an attorney purporting to represent either defendant or decedent’s estate submitted a letter to plaintiffs’ counsel. That attorney ultimately filed a notice of appearance on behalf of, inter alia, defendant in May 2018. On June 11, 2018, plaintiffs served upon defendant a demand to resume prosecution (see CPLR 3216). After defendant failed to respond to the demand within the requisite 90-day period, plaintiffs moved to dismiss the counterclaims pursuant to CPLR 3216.

Rather than oppose the motion, defendant cross-moved for, inter alia, leave to serve a third amended answer with counterclaims on plaintiffs, “collectively and individually,” and for leave to serve a third-party complaint against an insurance company and plaintiffs’ defense lawyers, “individually and collectively.” Defendant sought to assert a counterclaim and cause of action under Judiciary Law § 487. The court granted the motion and denied the cross motion, and we now affirm.

Contrary to defendant’s contention, the court properly granted the motion and dismissed all of defendant’s existing counterclaims. Defendant provided no explanation for her failure to respond to the 90-day demand and, in our view, that failure established a valid basis for dismissal. Although the court retains some discretion in determining whether to dismiss a cause of action or counterclaim under CPLR 3216, that section “presupposes that [the party opposing dismissal will] tender[ ] some excuse in response to the motion in an attempt to satisfy the statutory threshold” (Baczkowski v Collins Constr. Co., 89 NY2d 499, 504 [1997] [emphasis added]; see Burridge v Gaines, 281 AD2d 967, 967 [4th Dept 2001]; see also Walker v City of New York, 87 AD3d 734, 735 [2d Dept 2011]; Grullon v Henry, 7 AD3d 342, 343 [1st Dept 2004]). “If [a party] unjustifiably fails to comply with the 90-day requirement, knowing full well that the action can be saved simply by filing a note of issue but is subject to dismissal otherwise, the culpability for the resulting dismissal is squarely placed at the door of [that party] or [its] counsel” (Baczkowski, 89 NY2d at 504-505).

Although defendant further contends that the court erred in denying the cross motion, defendant’s contentions are limited to the court’s denial of that part of the cross motion that sought leave to serve a third amended answer with further counterclaims against plaintiffs only. Defendant does not address the court’s denial of that part of the cross motion that sought leave to add the individual attorneys in plaintiffs’ firm to the instant action or that part of the cross motion that sought leave to serve a third-party complaint against an insurance company and the attorneys representing plaintiffs in this action. We thus deem those issues abandoned (see Ciesinski v Town of Aurora, 202 AD2d 984, 984 [4th Dept 1994]).

It is well settled that “[l]eave to amend the pleadings ‘shall be freely given’ absent prejudice or surprise resulting directly from the delay” (McCaskey, Davies & Assoc. v New York City Health & Hosps. Corp., 59 NY2d 755, 757 [1983], quoting CPLR 3025 [b]). Here, there was a 14-year delay between the time the complaint was filed and the time defendant sought leave to amend the answer to add the new counterclaim. Nevertheless, “ '[m]ere lateness is not a barrier to the amendment. It must be lateness coupled with significant prejudice to the other side, the very elements of the laches doctrine’ ” (Edenwald Contr. Co. v City of New York, 60 NY2d 957, 959 [1983]). “Prejudice may be found where a party has incurred some change in position or hindrance in the preparation of its case which could have been avoided had the original pleading contained the proposed amendment” (Whalen v Kawasaki Motors Corp., U.S.A., 92 NY2d 288, 293 [1998]).

We conclude that plaintiffs established significant prejudice resulting from the delay inasmuch as their primary witness died in 2017 and another significant witness suffers from dementia and is unable to recall the events underlying the proposed amendment (see e.g. Slavet v Horton Mem. Hosp., 227 AD2d 465, 466 [2d Dept 1996]; Chemicraft Corp. v Honeywell Protection Servs., 161 AD2d 250, 250 [1st Dept 1990]). Moreover, defendant has failed to offer any excuse for the delay in attempting to assert the new counterclaim. “Where[, as here,] there has been an extended delay in moving to amend, the party seeking leave to amend must establish a reasonable excuse for the delay” (Jablonski v County of Erie, 286 AD2d 927, 928 [4th Dept 2001] [emphasis added]; see Raymond v Ryken, 98 AD3d 1265, 1266 [4th Dept 2012]; J.B. Stauffer Constr. Co., Inc. v Mailloux, 35 AD3d 1207, 1207 [4th Dept 2006]). “Given [defendant’s] extensive and unexplained delay in seeking to amend [the second amended answer] based on facts that were known to [defendant] since the onset of the litigation” and the substantial prejudice to plaintiffs resulting from the delay, we see no basis to disturb the court’s discretionary determination to deny the cross motion (Schelchere v Halls, 120 AD3d 788, 788 [2d Dept 2014]; see Raymond, 98 AD3d at 1266; Gross, Shuman, Brizdle & Gilfillan v Bayger, 256 AD2d 1187, 1187 [4th Dept 1998]).”

United States Life Ins. Co. in the City of N.Y. v Horowitz  2021 NY Slip Op 01877 [192 AD3d 613] March 25, 2021 Appellate Division, First Department os the rare case in which the Appellate Division soundingly finds that a Judiciary Law § 487 claim is stated.

“Judiciary Law § 487 (1) provides that an attorney who is “guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party . . . [i]s guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action.” Judiciary Law § 487 does not require a showing of detrimental reliance (see Bill Birds, Inc. v Stein Law Firm, P.C., 35 NY3d 173, 178 [2020]). Contrary to the holding in Blum v Perlstein (47 AD3d 741 [2d Dept 2008]) which cited to this Court’s decisions in Berkowitz v Fischbein, Badillo, Wagner & Harding (7 AD3d 385 [1st Dept 2004]) and Argyle Capital Mgt. Corp. v Lowenthal, Landau, Fischer & Bring (261 AD2d 282 [1st Dept 1999]), none of which dealt with a violation of Judiciary Law § 487, a decision we decline to follow because Judiciary Law § 487 is a statute that has its origins in the penal law and its “intent [is] to enforce an attorney’s special obligation to protect the integrity of the courts and foster their truth-seeking function” (Amalfitano v Rosenberg, 12 NY3d 8, 14 [2009]), here, the release did not bar plaintiff’s claim under Judiciary Law § 487 (see Schindler v Issler & Schrage, 262 AD2d 226, 228-229 [1st Dept 1999] [allowing claim based on violation of Judiciary Law § 487 to proceed despite settlement of the underlying action]). Here, the deceit and collusion were in obtaining the settlement and release. Plaintiff’s [*2]claim alleges deceitful conduct in the Kings County action where the attorney-defendants purportedly bribed a nonparty witness (by giving him cash and a Rolex watch) to make false statements that they later presented to plaintiff to exact a favorable settlement and obtain a release. Furthermore, the release covers only claims that could have been asserted in connection with the policy and those claims that were known to it at the time. Since it is alleged that the attorney defendants violated Judiciary Law § 487, and engaged in a separate fraud from the subject of the release (Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 NY3d 269, 276 [2011]), the motion to dismiss plaintiff’s claims against the attorney defendants for violation of Judiciary Law § 487 (1) was properly denied. Concur—Manzanet-Daniels, J.P., Mazzarelli, Mendez, Shulman, JJ. “

The Big Accounting firms in the US dispense CPA and some legal advice on taxes.  How to parse one from the other is discussed in Boesky v Levine  2021 NY Slip Op 02059 [193 AD3d 403] April 1, 2021 Appellate Division, First Department.

“The motion court properly dismissed as time barred the legal malpractice claims that pertain to legal services received from Levine and Herrick Feinstein from 2002-2005. The complaint does not allege that at the time defendant Levine provided legal services to plaintiffs regarding structuring and investing in the tax shelters from 2002-2005, the parties contemplated future services in connection therewith. Nor does the complaint contain allegations that there was continuous representation from 2002 forward regarding the structuring of the tax shelters (Johnson v Proskauer Rose LLP, 129 AD3d 59, 67-68 [1st Dept 2015]). However, the complaint sufficiently alleges that Levine subsequently represented plaintiffs in connection with audits by the Internal Revenue Service (IRS) and New York Department of Taxation and Finance (NYDTF) and in tax litigation continuously from May 16, 2008, the date Boesky signed a power of attorney permitting Levine to represent him before the NYDTF, through 2016. Whether the advice Levine allegedly dispensed with regard to the audits and litigation was provided solely in his capacity as tax matters partner for one of the limited liability companies in which plaintiffs invested, and not as their attorney, is an issue of fact that cannot be resolved on the pleadings.

The claim should also be reinstated against Herrick Feinstein (see Waggoner v Caruso, 68 AD3d 1, 6-7 [1st Dept 2009] [finding that sound policy considerations support the tolling of the statute of limitations under the continuous representation doctrine while the representation of the same matter in which the malpractice is alleged is ongoing], affd 14 NY3d 874 [2010]). This Court, in HNH Intl., Ltd. v Pryor Cashman Sherman & Flynn LLP (63 AD3d 534, 535 [2009]), held that the statute of limitations was tolled as to a malpractice claim against a law firm because the attorney(s) who handled the case continued to represent the plaintiffs in the same matter, albeit while at different law firms. Additionally, the claim should be reinstated against Moritt Hock for the period from September 2012 through 2016, when Levine was a partner at the firm and was [*2]allegedly still representing plaintiffs in connection with the audits and tax litigation. The complaint sufficiently alleges that Levine, while at Moritt, continued to advise plaintiffs regarding the tax litigation and sufficiently alleges that but for Levine’s continued failure to properly advise them of the weaknesses of their case, they would have settled with the IRS to reduce their financial exposure and litigation costs.”

The statute of limitations is approaching, yet the underlying case is not yet finished. How to handle this problem?  Aydiner v Karasik Law Group, P.C.  2021 NY Slip Op 30781(U) March 15, 2021 Supreme Court, Richmond County Docket Number: 151944/2020 Judge: Ralph J. Porzio catalogues the possibilities.

“The key question in the instant Motion is whether Plaintiffs’ legal malpractice cause of action is premature based on Plaintiffs’ pending Order to Show Cause with respect to the Underlying Foreclosure Action. This Court finds that the answer to this question is yes.
In Spitzer v. Newman, the plaintiff brought an action for legal malpractice against his attorney who represented him during loan transactions with borrowers. (See Spitzer v. Newman, 163 AD3d 1026, 1027 [2d Dept 2018]). The Supreme Court denied the attorney’s motion to dismiss and stayed the action pending the resolution of the plaintiff’s underlying action against  the borrowers. (See id.) The Appellate Division, Second Department held that to the extent that
the plaintiff’s action might have been premature since it could not be determined that the defendants’ alleged legal malpractice proximately caused him to sustain damages, the Supreme Court providently exercised its discretion by staying the case instead of dismissing it under CPLR §3211(a)(7). (See id. at 1028).

In the case of Kahan Jewelry Corp v. Rosenfeld, the Supreme Court dismissed a plaintiff’s legal malpractice action, with leave to replead, against defendants based on their representation of plaintiff in a mortgage foreclosure action. (See Kahan Jewelry Corp. v. Rosenfeld, 295 AD2d 261, 261 [1st Dept 2002]). The Appellate Division, First Department upheld the Supreme Court’s decision since the foreclosure action was still pending at the time and the plaintiff therefore had not suffered any actual damages attributable to the alleged malpractice. (See id.). In Parametric Capital Mgt., LLC v. Lacher, the Appellate Division, First Department dismissed the Plaintiff’s legal malpractice claim in part since the subject matter of the services provided by the defendant attorneys was still pending and there was no adverse decision that but for defendants’ alleged negligence, would have been more favorable to plaintiffs. (See Parametric Capital Mgt., LLC v. Lacher, 15 AD3d 301, 302 [1st Dept 2005]).

Here, the Court recognizes that a final Judgment and Sale of Foreclosure was entered against the Plaintiffs in the Underlying Foreclosure Action. The Court has also considered Plaintiffs’ argument that this fact demonstrates that the Underlying Foreclosure Action is not “pending.” However, the Court finds that the relevant issue of whether Defendants’ alleged breach of duty caused Plaintiffs to suffer actual and ascertainable damages is not ripe due to Plaintiffs’ Order to Show Cause, which is still pending.”

“This Court finds that since the elements of causation and damages in Plaintiffs’ legal malpractice cause of action are dependent on the outcome of the Order to Show Cause, such cause of action is premature and must be dismissed with leave to replead under CPLR
§3211(a)(7).”

Speculation on how a judge will rule can sometimes be elided, sometimes not.  Denisco v Uysal  2021 NY Slip Op 04118 Decided on June 30, 2021 Appellate Division, Second Department was an unsuccessful example.

“In August 2015, the plaintiff retained the defendants to represent him in connection with a claim for workers’ compensation benefits based upon injuries allegedly sustained by the plaintiff in the course of his employment on July 30, 2015. At a hearing, the plaintiff testified that he was injured on a work site while performing construction work for his employer when he climbed a ladder and twice hit his head on a sprinkler, causing him to fall off the ladder and land on his back and neck. However, the insurance carrier defending against the claim presented evidence that the plaintiff was not injured in the course of his employment, but rather after he left work when he “jumped out of . . . a moving car.” On February 19, 2016, the Judge who presided over the hearing denied the plaintiff’s claim, finding that the plaintiff’s injuries did not arise out of the course of his employment, and “were caused by an unrelated intentional injury.” On September 16, 2016, the Workers’ Compensation Board affirmed the determination to deny the plaintiff’s claim.”

“Here, even accepting the facts alleged in the complaint, as amplified by the plaintiff’s affidavit, as true, and according the plaintiff the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d at 87), the plaintiff failed to plead specific factual allegations demonstrating that, but for the defendants’ alleged negligence, there would have been a more favorable outcome on his workers’ compensation claim (see Katsoris v Bodnar & Milone, LLP, 186 AD3d 1504; Janker v Silver, Forrester & Lesser, P.C., 135 AD3d at 910). The plaintiff’s allegations that the Judge who denied his workers’ compensation claim and/or the Workers’ Compensation Board would have credited certain evidence, including the testimony of alleged eyewitnesses, if such evidence had been presented by the defendants were speculative and conclusory (see Janker v Silver, Forrester & Lesser, P.C., 135 AD3d at 910; Cusimano v Wilson, Elser, Moskowitz, Edelman & Dicker LLP, 118 AD3d 542).”

Almost uniformly claims of overbilling or unnecessary legal work and fees are dismissed as “duplicitive” of a legal malpractice claim.  Dubon v Drexel  2021 NY Slip Op 04119 Decided on June 30, 2021 Appellate Division, Second Department is a rare example where the Court distinguishes between a real contract claim and one which is based on the lack of quality of legal work.

“The plaintiff hired the defendants, Allen Drexel and Drexel, LLC (hereinafter together Drexel), to represent him in a divorce action. The plaintiff and Drexel entered into a retainer agreement (hereinafter the retainer), which set forth the terms of Drexel’s representation of the plaintiff. Pursuant to the retainer, Drexel, among other things, would provide the plaintiff with itemized billing statements at least every 60 days. The retainer further provided that any modifications to the agreement, fee estimates, budgets for work to be done for the plaintiff, or adjustments to Drexel’s bills “will be valid only if in writing and signed by [both parties]” (emphasis in original).

In November 2016, the plaintiff commenced the instant action against Drexel, in which he asserted two causes of action alleging breach of contract and one cause of action alleging fraudulent inducement. The first breach of contract cause of action alleged, among other things, that Drexel breached a provision of the retainer pursuant to which Drexel agreed to defend the plaintiff in his divorce action and “to provide all necessary legal services for an estimated cost of ‘no more than $100,000.'” The second breach of contract cause of action alleged that Drexel failed to provide invoices to the plaintiff as required by the retainer. The fraudulent inducement cause of action alleged that the plaintiff was fraudulently induced into entering into the retainer by relying on Drexel’s representations as to the cost of its legal services.”

“However, the Supreme Court should have denied that branch of Drexel’s motion which was to dismiss so much of the first breach of contract cause of action as alleged that Drexel overbilled and charged the plaintiff for unnecessary legal services (see Ullmann-Schneider v Lacher & Lovell-Taylor, P.C., 121 AD3d 415, 416; O’Connor v Blodnick, Abramowitz and Blodnick, 295 AD2d 586, 587). In opposition to that branch of Drexel’s motion which was to dismiss the first breach of contract cause of action, the plaintiff submitted an affidavit in which he averred that Drexel double-billed him for legal services in the sum of $291,000 and charged him at least $70,000 for unnecessary legal services. Contrary to Drexel’s contention, the plaintiff’s claim that Drexel overbilled and charged him for unnecessary legal services is distinct from a legal malpractice cause of action, as the plaintiff’s claim does not challenge the quality of Drexel’s work (see Ullmann-Schneider v Lacher & Lovell-Taylor, P.C., 121 AD3d at 416; Tanenbaum v Molinoff, 118 AD3d 774, 775-776).”

Edelman v Berman  2021 NY Slip Op 04120 Decided on June 30, 2021
Appellate Division, Second Department presents an interesting real estate legal malpractice claim.  It illustrates two points.  First:  No document is absolutely required to show an attorney-client relationship.  Second:  Violation of a statute or rule, combined with alleged damage can support a legal malpractice claim.

“”On a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Shah v Exxis, Inc., 138 AD3d 970, 971). “Where a court considers evidentiary material in determining a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), but does not convert the motion into one for summary judgment, the criterion becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless the movant shows that a material fact as claimed by the plaintiff is not a fact at all and no significant dispute exists regarding the alleged fact, the complaint shall not be dismissed” (Bodden v Kean, 86 AD3d 524, 526).

Applying this standard, the Supreme Court properly granted that branch of the Wisnicki defendants’ motion which was to dismiss the cause of action to recover damages for fraud insofar as asserted against them. “The elements of a cause of action sounding in fraud are a material misrepresentation of an existing fact, made with knowledge of the falsity, an intent to induce reliance thereon, justifiable reliance upon the misrepresentation, and damages” (Mitchell v Diji, 134 AD3d 779, 780 [internal quotation marks omitted]). “When a plaintiff brings a cause of action based upon fraud, ‘the circumstances constituting the wrong shall be stated in detail'” (Sargiss v Magarelli, 12 NY3d 527, 530, quoting CPLR 3016[b]). Here, the complaint did not allege in any detail any misrepresentations that were made to the plaintiff by the Wisnicki defendants or of which the Wisnicki defendants had knowledge.

However, the Supreme Court erred in granting those branches of the Wisnicki defendants’ motion which were to dismiss the causes of action alleging legal malpractice and violation of Real Property Law § 265-a insofar as asserted against them. As to the legal malpractice cause of action, the Wisnicki defendants contend that they had no attorney-client relationship with the plaintiff. An attorney-client relationship may arise even in the absence of a written retainer agreement, and a court must look to the words and actions of the parties to determine whether such a relationship exists (see Tropp v Lumer, 23 AD3d 550, 551). Here, according the plaintiff the benefit of every favorable inference, she sufficiently alleged the existence of an attorney-client relationship (see Hall v Hobbick, 192 AD3d 776; see also Tropp v Lumer, 23 AD3d at 551).

An action for damages or equitable relief for violations of Real Property Law § 265-a may be commenced against, among others, “a person who in any manner solicits, induces, arranges, or causes any equity seller to transfer title . . . to [a] residence in foreclosure” (Real Property Law § 265-a[2][j]; see id. § 265-a[2][e]; [9]). Here, construing the allegations in the light most favorable to the plaintiff, the facts alleged state a cognizable cause of action against the Wisnicki defendants for violation of Real Property Law § 265-a.”

Plaintiffs, parties to a FTC action, were co-parties with another, whom it seems, was treated differently by the attorneys.  InLabMD, Inc. v Buchanan 2021 NY Slip Op 04084 Decided on June 24, 2021 Appellate Division, First Department we see them strike out.  Dismissal is affirmed across the board.

“Despite their characterization in the amended complaint, plaintiffs’ claims all sound in subornation of perjury in the prior litigation with the FTC. Such claims are not permitted in a subsequent plenary action (Serrante v Moses & Singer LLP, 137 AD3d 697 [1st Dept 2016]).

Plaintiffs’ claim under Judiciary Law § 487 was properly dismissed because the conduct alleged did not take place in a New York court (Shawe v Elting, 161 AD3d 585, 588 [1st Dept 2018]).

Plaintiffs’ claims for negligent and fraudulent omission fail because they did not allege a “near privity” relationship with defendants, who were expressly representing a different party (cf. Millennium Import, LLC v Reed Smith LLP, 104 AD3d 190, 194 [1st Dept 2013]).

Plaintiffs’ claims for tortious interference with the fiduciary relationship fail because they do not establish that their co-plaintiff in the joint representation agreement was a fiduciary, or a partner or joint venturer.

Their claim that defendants interfered with the joint representation agreement fails because any breach occurred before defendants’ alleged actions, and the agreement expressly carves out disclosure of information related to separate legal matters including testimony in other proceedings.

Finally, plaintiffs‘ claim that they could amend the complaint without leave is incorrect. CPLR 3025 allows a plaintiff to amend “once” without leave. Plaintiffs had already done so. Furthermore, their amended complaint did not cure the infirmities referenced above, and thus was futile. No appeal lies from the denial of plaintiffs’ motion to reargue (Crimlis v City of New York, 179 AD3d 575, 576 [2020]).”

Lewis v Pierce Bainbridge Beck Price Hecht LLP  2021 NY Slip Op 03911
Decided on June 17, 2021 Appellate Division, First Department shows the high bar for a Judiciary Law § 487 claim.  “Troubling” is just not enough.

“The alleged statements made by defendant Conley in the course of litigation are immune from liability for defamation based on an absolute privilege (see Front, Inc. v Khalil, 24 NY3d 713, 718 [2015]). Plaintiff failed to show that these statements, made in a motion to dismiss plaintiff’s initial New York complaint and after litigation had commenced, were “material and pertinent to the questions involved” in the litigation (id. [internal quotation marks omitted]; see Flomenhaft v Finkelstein (127 AD3d 634, 637 [1st Dept 2015] [test of pertinence is “extremely liberal”] [internal quotation marks omitted]). Conley’s alleged pre-litigation statements are protected by a qualified privilege (see id. 719-720 [2015]). Plaintiff failed to show that Conley did not have a good-faith basis for anticipating that litigation was bound to occur (id. at 720). Accordingly, plaintiff’s aiding and abetting defamation claim was properly dismissed.

Plaintiff’s prima facie tort claim was also properly dismissed. The vague allegation that plaintiff sustained “irreparable harm” to his reputation and career is insufficient to allege the requisite special damages so as to assert a prima facie tort claim (Freihofer v Hearst Corp., 65 NY2d 135, 143 [1985]). Similarly, dismissal of the Judiciary Law § 487 claim was appropriate. While counsel’s communications and statements surrounding the withdrawal of the action filed in New York, which we assume to be true on a CPLR 3211 (a)(7) motion, and defendants’ subsequent reliance on said withdrawal in a California action, are troubling, the complaint fails to allege damages proximately caused by the alleged deceit (see Doscher v Mannatt, Phelps & Phillips, LLP, 148 AD3d 523, 524 [1st Dept 2017]).”

We’ve often asserted anecdotally that there are far more dismissals at the pleading stage in legal malpractice than in other areas of the law.  Compare, for example, dismissals in medical malpractice.  We believe that there are almost none.  There are a lot of summary judgment dismissals in legal malpractice as well.  Here, in Leeder v Antonucci
2021 NY Slip Op 03978 Decided on June 17, 2021 Appellate Division, Fourth Department we some of both.

“Memorandum: Plaintiff commenced this action seeking damages for alleged legal malpractice arising from defendant’s representation of plaintiff in two separate matters. On a prior appeal from an order and judgment granting defendant’s cross motion for summary judgment dismissing the complaint, this Court modified the order and judgment by denying the cross motion in part and reinstating plaintiff’s second cause of action (estate cause of action)—which alleged malpractice in defendant’s handling of an estate accounting proceeding—on the ground that plaintiff raised a triable issue of fact whether that cause of action was untimely (Leeder v Antonucci, 174 AD3d 1469, 1470-1471 [4th Dept 2019]). This Court then remitted the matter to Supreme Court to address that part of the cross motion seeking summary judgment dismissing the estate cause of action on the ground that plaintiff failed to sufficiently allege damages on that cause of action (id. at 1471).

Upon remittal, the court granted that part of the cross motion seeking summary judgment dismissing the estate cause of action, concluding that defendant established that plaintiff’s damages claim was speculative and that plaintiff failed to raise a triable issue of fact in opposition. In appeal No. 1, plaintiff appeals from an order and judgment granting the cross motion to that extent and dismissing the remainder of the complaint. In appeal No. 2, plaintiff appeals from an order denying his motion for leave to reargue and renew his opposition to defendant’s cross motion with respect to the estate cause of action.

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]).”