Bianco v Law Offs. of Yuri Prakhin, 2020 NY Slip Op 07849 [189 AD3d 1326]
December 23, 2020 Appellate Division, Second Department  tells a familiar legal malpractice story.  Plaintiff slips and falls on ice on subway steps in NYC.  Attorneys hired by her successfully file a Notice of Claim against NYC, but do not file against the NYCTA.  Service of a Notice of Claim is a condition prerequisite to suing the NYCTA.  Case goes on to attorney B and attorney C.

“The plaintiff allegedly slipped and fell on ice on a subway staircase in Brooklyn on January 21, 2014. Shortly thereafter, she retained the defendants Law Office of Yuriy Prahkin and Yuriy Prahkin (hereinafter together the Prahkin defendants) to represent her in a personal injury action relating to the fall. The Prahkin defendants served a timely notice of claim on the City of New York, but failed to do so with respect to the New York City Transit Authority (hereinafter NYCTA). In July 2014, the plaintiff retained the defendants Schneider Law Group and William Z. Schneider (hereinafter together the Schneider defendants) as successor counsel to the Prahkin defendants. The Schneider defendants, in turn, retained the defendants Steven C. Kletzkin, PLLC, and Steven C. Kletzkin (hereinafter together the Kletzkin defendants) as trial counsel representing the plaintiff in an action against the NYCTA.

[*2] In February 2015, the Schneider defendants served an untimely notice of claim upon NYCTA. In March 2015, the Kletzkin defendants commenced an action on the plaintiff’s behalf against the NYCTA to recover damages for the personal injuries she allegedly sustained as a result of the slip and fall. In an order dated April 15, 2016, the Supreme Court granted the NYCTA’s motion to dismiss the complaint in the personal injury action against the NYCTA “with prejudice, and no opposition submitted thereto.”

There is no mystery in the legal malpractice claims.  The mystery resides in how a Judiciary Law 487 claim survives.  The Court does not elucidate.

“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]).”

CPLR 3211(a)(1) allows for dismissal based upon “documentary evidence.”  Such a win is usually “on the merits” and generally allows for later res judicata and collateral estoppel treatment.  Dismissal under CPLR 3211(a)(7), while more common, is not on the merits and is not “with prejudice.”  the later effects are much smaller, and a case can be repled under CPLR 205.  Cali v Maio  2020 NY Slip Op 07853 Decided on December 23, 2020 Appellate Division, Second Department displays the reasoning process.

“Contrary to the determination of the Supreme Court, the defendants failed to establish that they were entitled to dismissal of the cause of action to recover damages for legal malpractice pursuant to CPLR 3211(a)(1). “To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Gould v Decolator, 121 AD3d 845, 847; see Leon v Martinez, 84 NY2d 83, 88). Construing the complaint liberally, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible inference, as we are required to do (see Leon v Martinez, 84 NY2d at 87; Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996), the documentary evidence submitted by the defendants failed to utterly refute the plaintiff’s allegations of legal malpractice, as augmented [*2]by her affidavit in opposition to their motion (see Garcia v Polsky, Shouldice & Rosen, P.C., 161 AD3d 828, 830; Anderson v Armentano, 139 AD3d 769, 771).

However, the defendants were entitled to dismissal of the causes of action to recover damages for legal malpractice and breach of contract under the branch of their motion which was pursuant to CPLR 3211(a)(7). “On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), ‘[w]e accept the facts as alleged in the complaint as true, accord plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory'” (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 141, quoting Leon v Martinez, 84 NY2d at 87-88).

“In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, quoting McCoy v Feinman, 99 NY2d 295, 301). “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442). Here, the plaintiff failed to adequately plead specific factual allegations showing that, but for the defendants’ alleged negligence, she would have obtained a more favorable outcome in the foreclosure action (see Janker v Silver, Forrester & Lesser, P.C., 135 AD3d 908, 909; Benishai v Epstein, 116 AD3d 726, 728). Although the plaintiff’s alleged damages are based on the loss of her home due to foreclosure, the plaintiff failed to allege that, but for the defendants’ negligence, the foreclosure action would not have resulted in a judgment of foreclosure and sale. Accordingly, the complaint failed to state a cause of action to recover damages for legal malpractice and the defendants were entitled to dismissal of that cause of action pursuant to CPLR 3211(a)(7) (see Janker v Silver, Forrester & Lesser, P.C., 135 AD3d at 909; Benishai v Epstein, 116 AD3d at 728). Since the breach of contract cause of action arose from the same operative facts as the legal malpractice cause of action and did not allege distinct and different damages it was duplicative of the legal malpractice cause of action and thus, also subject to dismissal (see Prott v Lewin & Baglio, LLP, 150 AD3d 908, 910; Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d 812, 813-814).

The defendants also were entitled to dismissal of the third cause of action, which alleged that the defendants overbilled the plaintiff for legal fees. Although overbilling can constitute a cause of action to recover damages for breach of contract by a client against her or his attorney (see O’Connor v Blodnick, Abramowitz and Blodnick, 295 AD2d 586, 587), here, that cause of action was barred by res judicata under CPLR 3211(a)(5). The defendants submitted, among other things, an arbitration case report which indicated that the parties had participated in an arbitration relating to fees owed for legal services rendered by the defendants. The plaintiff’s allegations evidence that her overbilling cause of action is directly related to the fee dispute, and that it should have been litigated during that arbitration proceeding. Thus, the final arbitration award bars the cause of action to recover damages for overbilling (see CPLR 3211[a][5]; Breslin Realty Dev. Corp. v Shaw, 72 AD3d 258, 263, 265; see also Mahler v Campagna, 60 AD3d 1009, 1012).”

As  Schoolman v. NcAuliffe 2020 NY Slip Op 34228(U) December 21, 2020 Supreme Court, Suffolk County Docket Number: 4311/2019 Judge: Sanford Neil Berland demonstrates, bankruptcy can serve as a sheering tool. Enter into bankruptcy and sone/all of your possessions are gone.

“”‘Upon the filing of a voluntary bankruptcy petition. all property which a debtor owns.including a cause of action, vests in the bankruptcy estate,”‘(Burbacki v. Abrams, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, 172 AD3d 1300, l 300. 99 NYS3d 671 [2d Dept 2019), quoting Keegan v. Moriarty-Morris, 153 AD3d 683, 684 (2d Dept 20 17), citing
11 USC§ 541 [a][IJ; In re Oshome, 2013 WL 113177662, *2, 2013 US Dist LEXIS 190402, *5-6 {SONY 2013)). Therefore, a plaintiff may not maintain a legal malpractice cause of action in his or her individual capacity relating to a bankruptcy. The right to sue is only exercisable by
the trustee in bankruptcy. whether the claim asserted in the complaint accrued prior to the filing of the bankruptcy petition. or post-petition (see 11 USC § 541 [a][ I): Burbacki v. Abrams, Fensterman, Eiseman, Formato, Ferrara & Wolf, LLP, supra 172 AD3d at 1300, citing Williams v. Stein, 6 AD3d 197, 775 NYS2d 255 (1st Dept 2004). /n re Osborne, 2013 WL 11317662, *2-3. 2013 US Dist LEXIS I 90402. *7-8. Jn re Alvarez, 224 F3d 1273. 1275-1278 [11th Cir 2000)). Therefore, to the extent that plaintiff asserts claims for legal malpractice in connection with defendant’s representation of the three companies, plaintiff lacks the capacity to sue as a matter of bankruptcy law.”

Attorney takes over for departing defense counsel in a trip-and-fall case.  Attorney moves for dismissal, fails.  Attorney takes the case to trial, succeeds with a defense verdict.  Attorny want to get paid, isn’t.  Attorney sues client  Flanagan Law, PLLC v Perno  2020 NY Slip Op 51488(U) [70 Misc 3d 1201(A)] Decided on December 18, 2020 Supreme Court, New York County Lebovits, J. discects both sides’ errors.

“I. Plaintiff’s Motion for Summary Judgment

A. Plaintiff’s Claim for an Account Stated

Plaintiff moves for summary judgment on its cause of action for an account stated. The motion is denied.

An account-stated claim arises from an implicit agreement between the parties on the amount that one party owes the other on past transactions between them. (See Rodkinson v Haecker, 248 NY 480, 485 [1928].) A party seeking judgment as a matter of law on an account-stated claim must show that the invoices were properly addressed and mailed to a client, using a regular office mailing procedure. (See Morrison Cohen Singer & Weinstein, LLP v Brophy, 19 AD3d 161, 161-162 [1st Dept 2005].) In addition, plaintiff must establish “with admissible evidence, the receipt and retention of bills without objection within a reasonable time.” (LD Exch., Inc. v Orion Telecom. Corp., 302 AD2d 565, 565 [2d Dept 2003].)

Plaintiff has not met that burden here. It relies on one conclusory statement in an affidavit from its principal, Richard J. Flanagan, that invoices were mailed to the address provided by defendants based on plaintiff’s normal office procedure.^[FN1] But plaintiff provides no information about that putative office procedure. And there is no documentary evidence indicating that the invoices were mailed, mailed to the correct address, paid in part, or received and retained without objection. Indeed, the invoices attached to plaintiff’s motion papers do not [*3]even list defendants’ address(es) at all.^[FN2]

B. Plaintiff’s Claim for Breach of Contract

Plaintiff also moves for summary judgment on its contract claim. This court concludes that the motion should be denied because plaintiff has not established prima face its entitlement to judgment as a matter of law.

To prevail on a breach of contract claim, a party must establish the existence of a contract, the plaintiff’s performance, the defendant’s breach of that contract, and resulting damages. (Harris v Seward Park Hous. Corp., 79 AD3d 425, 426 [1st Dept 2010].) In the case of an attorney-client relationship, 22 NYCRR § 1215.1 requires attorneys to provide all clients with a written letter of engagement or to execute a written retainer agreement explaining the scope of legal services, the fees to be charged, billing practices to be followed, and the right to arbitrate a dispute. (Seth Rubenstein, P.C. v Ganea, 41 AD3d 54, 60 [2d Dept 2007].)

Here, plaintiff has not submitted an attorney-client retainer agreement or letter of engagement to establish that it satisfied the requirements of § 1215.1. Defendant Thomas Perno also represents in an affidavit that no such letter or agreement was provided or executed. Although plaintiff disputes Perno’s representation in his affidavit, it does not offer any documentary evidence supporting its assertion that a retainer agreement existed from the outset.^[FN3] Thus, with respect to the breach-of-contract claim plaintiff has thus failed to offer sufficient evidence to meet its initial prima facie burden at summary judgment.

C. Plaintiff’s Claim in Quantum Meruit

Alternatively, plaintiff claims that it is entitled to the reasonable value of its legal services in quantum meruit. This court again concludes that plaintiff’s motion for summary judgment should be denied.

It is true that an attorney’s failure to comply with the rules on retainer agreements or engagement letters established in 22 NYCRR § 1215.1 would not preclude it from later recovering legal fees in quantum meruit. (See Miller v Nadler, 60 AD3d 499, 500 [1st Dept 2009].) But plaintiff has not established the absence of any material dispute of fact. To recover in quantum meruit, a plaintiff must establish “(1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services.” (Fulbright & Jaworski, LLP v Carucci, 63 AD3d 487, 489 [1st Dept 2009].) Defendants in this case have submitted affidavits and documents to dispute that plaintiff performed services in good faith—suggesting both that plaintiff padded its legal bills by performing unnecessary services and submitted a bare-bones summary-judgment motion that was plainly inadequate on its face. This court concludes that defendants have thereby established a material dispute of fact that precludes the grant of summary judgment on plaintiff’s quantum-meruit claim.

II. Defendants’ Cross-Motion for Summary Judgment

Defendants cross-move for summary judgment on their malpractice counterclaim. The motion is denied.

A party must establish three elements to recover on a legal-malpractice claim: negligence of the attorney accused of malpractice, proximate causation between the attorney’s negligence and the loss sustained by the client, and proof of actual damages. (See Levine v Lacher & Lovell-Taylor, 256 AD2d 147, 149 [1st Dept 1998].) The first element requires a malpractice claimant to adduce evidence that establishes, through more than allegations of deficiencies in plaintiff’s conduct as an attorney, that plaintiff failed to meet the standard of professional care and skill. (See Thaler & Thaler v Gupta, 208 AD2d 1130, 1132 [3d Dept 1994].) To show proximate cause in a legal malpractice claim, the claimant must establish that “but for” the attorney’s negligence, the claimant would have prevailed or would not have sustained any damages. (See Levine, 256 AD2d at 149.) Therefore, “to sustain a claim for legal malpractice, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the Underlying Action ‘but for’ the attorney’s negligence.” (Leder v Spiegel, 9 NY3d 836, 837 [2007] [internal citations omitted].)

Defendants here emphasize that in their view plaintiff’s summary-judgment motion in the underlying action was so thin and unsupported as to fall below basic standards of professional care. And they assert that as a result of the (putative) deficiencies of this affidavit, defendants fared worse at summary judgment than other defendants with weaker positions in the underlying action. This court is skeptical, though, that defendants’ legal position in the underlying action (or that of the other defendants in the action), and thus the requisites of a proper summary-judgment motion in that action, are “part of an ordinary person’s daily experience.” (Suppiah v Kalish, 76 AD3d 829, 832 [1st Dept 2010] [reversing grant of summary judgment on malpractice claim].) Defendants were therefore required to come forward on this motion with an expert affidavit to [*4]establish each element of their malpractice claim. They have not done so.

Additionally, defendants have not shown—as opposed to merely asserting—that their legal position in the underlying action was comparable or even stronger than that of other defendants who prevailed at summary judgment. And although defendants maintain that their position was so strong that the judge in the underlying action dismissed the claims against them sua sponte at trial, they have not supported that claim with documentary evidence.

This court concludes that in these circumstances, defendants have not established the absence of any factual dispute and that they are entitled to judgment as a matter of law on their malpractice counterclaim.

Accordingly, it is

ORDERED that plaintiff’s motion for summary judgment under CPLR 3212 is denied; and it is further

ORDERED that defendants’ cross-motion for summary judgment under CPLR 3212 on their malpractice counterclaim is denied.

Trundle v Garr Silpe, P.C. 2020 NY Slip Op 34233(U) December 18, 2020
Supreme Court, New York County Docket Number: 159437/2019
Judge: Lucy Billings is an example of big-number financial transactions and the potential culpability for large losses.  Plaintiff alleged that defendant attorneys negligently handled his wife’s trusteeship of a pension plan, with large losses.

“Plaintiff’s identified primary goal was removing his wife as the trustee and administrator of his corporation’s pension plan. Plaintiff alleges that defendant’s lack of efforts to pursue this requested objective required him to pay a separate law firm additional attorney fees, totaling $150,000.”

“Accepting plaintiff’s allegations as true and drawing all reasonable inferences in his favor, as required upon defendant’s motioh pursuant to C.P.L.R. §3211(a) (7), plaintiff shows how defendant’s negligence adversely affected him in the divorce action and caused him actual financial damages.

Not all plaintiff’s claimed damages, however, are attributable to defendant’s negligence. First, the $150,000.00 paid to a separate law firm is not attributable to defendant’s negligence because plaintiff would have paid an attorney to close the pension fund regardless whether the attorney was defendant or a new attorney, Brookwood Cos .. Inc. v. Alston & Bird LLP, 146 A.D.3d at 666-67; Cohen v. Hack; 118 A.D.3d 460, 460 (1st Dep’t 2014); Cohen v. Kachroo, 115 A.D.3d at 513, unless plaintiff shows that, due to defendant’s conduct, he paid more fees to his new attorney than he would have paid to defendant. Exeter Law Group LLP v. Immortalana Inc., 158 A.D.3d 576, 577 (1st Dep’t 2018); Macquarie Capital (USA) Inc. v. Morrison & Foerster LLP, 157 A.D.3d 456, 457 (1st Dep’t 2018); Garnett v. Fox. Horan. & Camerini. LLP, 82 A.D.3d 435, 436 (1st Dep’t 2011). Second, as plaintiff alleges that his wife began misappropriating funds in 2003, and he retained defendant for the divbrce action in 2014, any of her misappropriations totalling the $400,000 and $500,000 alleged amounts before 2014 are not attributable to defendant. Knox v. Aronson, Mayefsky & Sloan, LLP, 168 A.D.3d at 75; Brenner v. Reiss Eisenpress, LLP, 155 A.D.3d at 438. ”

“Finally, plaintiff’s allegations that defendant unilaterally and unnecessarily conceded $205,000 when negotiating the closure
of the pension plan state a claim for legal malpractice., Roth v.
Ostrer, 161 A. D-. 3d 433 I 434 (1st Dep’ t 2018) . In support of this
claim, plaintiff alleges that the pension plan’s closure did not
require his wife’s agreement, so that defendant’s concession of
the $205,000 value of an insurance policy in exchange for her
agreement regarding the closure was an unnecessary compromise, a
claim to which defendant does not even respond. “

As we have said before, New York real estate is strongly associated with New York legal malpractice claims.  Ramos v Goldberg, Schudieri & Lindenberg, P.C.  2020 NY Slip Op 07147 Decided on December 01, 2020
Appellate Division, First Department is another example. Here, the question was whether Plaintiff owned a coop or not.

“In the underlying matter, a not-for-profit housing cooperative brought a holdover proceeding against plaintiff that sought past use and occupancy as well as challenged his rights to the unit he occupied. Plaintiff commenced a separate action in Supreme Court seeking a declaration that he was the owner of the cooperative unit in question. The housing cooperative [*2]counterclaimed in the Supreme Court action for a declaration that plaintiff’s claim of right to ownership in the apartment was invalid. The holdover proceeding was stayed pending a determination of the Supreme Court action pursuant to the parties’ stipulation. Defendants attorneys represented plaintiff in the Supreme Court action, which ultimately was resolved adversely to plaintiff, as the court granted the relief sought by the housing cooperative in its counterclaim.”

“Plaintiff’s factual allegations fail to establish that but for defendants’ alleged negligence in not calling the cooperative’s attorney to testify in the Supreme Court action, the attorney’s testimony would have established that the unit was validly transferred to him at a July 1995 closing (see generally Ambase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]). Plaintiff’s complaint offers no factual allegations as how or why the testimony from the attorney could have established the validity of a transfer of the unit to plaintiff. Moreover, it is speculative to state that the cooperative attorney’s testimony could have established the validity of the transfer when the real participants that had the authority to effect the transfer (i.e., the cooperative’s board members) either denied having participated in such a transfer and/or that the signatures alleged to be by theirs on the transferring documents were in fact their signatures. Accordingly, testimony from the cooperative’s attorney would not have altered the outcome of the Supreme Court action.

Furthermore, there are no factual allegations in the complaint to demonstrate that plaintiff would have been successful in the holdover proceeding, and would not have sustained any damages in such proceeding, but for defendants alleged negligence in having plaintiff stipulate to making the holdover proceeding dependent upon the outcome of the Supreme Court action. The issues in the two proceedings were interrelated. As recognized by the motion court, the question of whether plaintiff was subject to eviction in the holdover proceeding necessarily depended upon whether plaintiff was found to be a shareholder of the cooperative corporation, the very issue being litigated in the Supreme Court.”

It is sadly ironic when a legal malpractice case is dismissed (from plaintiff’s point of view) and even more so when it is dismissed for “willful and contumacious”discovery conduct (from everyone’s point of view).

Allstar Elecs., Inc. v DeLuca  2020 NY Slip Op 07018 [188 AD3d 1121]
November 25, 2020 Appellate Division, Second Department is an example.

“”The nature and degree of the penalty to be imposed pursuant to CPLR 3126 against a party who refuses to comply with court-ordered discovery is a matter within the discretion of the court” (Smookler v Dicerbo, 166 AD3d 838, 839 [2018]; see Pastore v Utilimaster Corp., 165 AD3d 685, 686 [2018]; Quinones v Long Is. Jewish Med. Ctr., 90 AD3d 632 [2011]). The striking of a pleading may be appropriate where there is a clear showing that the failure to comply with discovery demands or court-ordered discovery was the result of willful and contumacious conduct (see Ozeri v Ozeri, 135 AD3d 838, 839 [2016]; McArthur v New York City Hous. Auth., 48 AD3d 431 [2008]). “The willful and 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 any reasonable excuse for these failures” (Tos v Jackson Hgts. Care Ctr., LLC, 91 AD3d 943, 943-944 [2012]; see Smookler v Dicerbo, 166 AD3d at 839; Commisso v Orshan, 85 AD3d 845 [2011]).

Here, contrary to the plaintiff’s contention, the willful and contumacious character of its conduct could properly be inferred from its repeated failures, without an adequate excuse, to timely respond to discovery demands and to comply with the Supreme Court’s orders to provide outstanding discovery and set a date for the plaintiff’s deposition (see Marino v Armogan, 179 AD3d 664, 666 [2020]; Broccoli v Kohl’s Dept. Stores, Inc., 171 AD3d 846, 847-848 [2019]; Smookler v Dicerbo, 166 AD3d at 839-840; Montemurro v Memorial Sloan-Kettering Cancer Ctr., 94 AD3d 1066, 1066-1067 [2012]).”

A line of legal malpractice cases in New York, arising primarilly out of matrimonial underlying matters have found that if the client positively answers an allocution question of whether the client is satisfied with the attorneys’work, then a later legal malpractice case is forfeit.  Here in Stennett v Goldberg & Cohn, LLP   2020 NY Slip Op 33901(U) November 23, 2020 Supreme Court, Kings County Docket Number: 511918/2018 Judge: Pamela L. Fisher highlihghts the history of this doctrine.

“The court declines to dismiss plaintiffs cause of action for legal malpractice pursuant to CPLR § 321 l(a)(l), on the basis of plaintiffs llocution under oath, because New York State courts have not taken a consistent position on whether an allocution that a client was satisfied with the services of his/her attorney precludes a client from bringing a claim for legal malpractice (See Boone v. Bender, 74 A.D.3d 1111, 1113 [2d. Dept. 2010] (granting defendants’ motion for summary judgment on the grounds that the “open-court stipulation of settlement established
that the plaintiff was satisfied with the defendants’ representation of her”); Harvey v. Greenberg, 2009 NY Slip Op. 32625(U) [Sup Ct, NY County 2009] (granting motion to dismiss); ajf’d 82 A.D.3d 683, 683 [1st Dept. 2011]; Katebi v. Fink, 51A.D.3d424, 425 [l st Dept. 2008] (granting motion to dismiss); But see Cruciata v. Mainiero, 31 A.D.3d 306, 306 [1st Dept. 2006] (reversing dismissal under CPLR § 321 l(a)(l) “[d]espite the detailed on-the-record settlement of plaintiffs matrimonial action,” on the
grounds that “the former husband’s pension and other assets were overlooked in arriving at the stipulation”); Gad v. Sherman, 160 A.D.3d 622, 623 [2d. Dept. 2018] (affirming trial’s court’s order denying dismissal of complaint pursuant to CPLR § 321 l(a)(l) on the grounds that “the documentary evidence submitted by the defendant, consisting of the transcript of the April 2014 court appearance, failed to utterly refute the plaintiff’s allegations of malpractice”)). “