Legal malpractice plaintiffs rarely get procedural wins.  Fernandez v McCarthy  2020 NY Slip Op 03079  Decided on May 28, 2020 Appellate Division, First Department is an exception.

“Under the circumstances, we find that, although plaintiff delayed in seeking an extension of his time to re-serve the complaint, the motion court appropriately exercised its discretion when it extended plaintiff’s time in the interest of justice (CPLR 306-b), as plaintiff established the existence of several relevant factors weighing in favor of an extension (see Leader v Maroney, Ponzini & Spencer, 97 NY2d 95, 104-105 [2001]; Chase Home Fin. LLC v Adago, 171 AD3d 533 [1st Dept 2019]). Plaintiff’s legal malpractice claim, which would otherwise be lost due to the running of the statute of limitations, seems to be potentially meritorious, and defendants have not established that they would suffer substantial prejudice from the extension, where they had actual notice of this action and the allegations against them from early on (see Wimbledon Fin. Master Fund, Ltd. v Laslop, 169 AD3d 550 [1st Dept 2019]; Pennington v Da Nico Rest., 123 AD3d 627 [1st Dept 2014]).”

This is an attorney v. attorney case in which it is alleged that defendants withdrew from defending plaintiff in a disciplinary action and then engaged in a campaign to sully his name.  Bearing in mind that plaintiff is both an attorney and pro-se, the outcome of this motion to dismiss is not particularly surprising.  As happens in cases between siblings, Savitt v Krinsky
2020 NY Slip Op 31590(U) May 27, 2020 Supreme Court, New York County Docket Number: 154052/2019  Judge: W. Franc Perry is a sad, strange and somewhat terrifying story.

“Savitt avers that he terminated the Krinsky defendants as his attorneys “for cause” on or about January 2016 (Complaint at ¶ 11). The Krinsky defendants assert, however, that they “withdrew” as Savitt’s attorneys on January 15, 2016 and closed his file on February 1, 2016 after which they had no further contact with him (Krinsky 7/22/19 affidavit, ¶ 4) (Doc No. 6).
Savitt asserts that when he terminated the Krinsky defendants in 2016, he hired Michael Gentile to represent him in the Disciplinary Matter. Both Scott and the Krinsky defendants
interfered in his relationship with the newly hired attorney and as a result of their interference, attorney Michael Gentile withdrew from representing him (Savitt 7/31/19 affidavit at ¶¶ 49-54 and 9/30/19 affidavit at ¶ 40 [Doc No. 20]).

Savitt further alleges that in January or February of 2016 Scott and the Krinsky defendants published by email, text, phone, and social media “horrible, vicious, egregious, [and]
false” (Complaint at ¶ 24) defamatory statements claiming that Savitt was “mentally ill” and had a “substance abuse problem” (Complaint at ¶ 68). Savitt contends that these defamatory statements caused personal and professional harm to him (Complaint at ¶¶ 24-25).

Plaintiff additionally states that from May 2015 through July 2019 Krinsky and/or Scott have been: calling, texting, emailing, corresponding and communicating with [his family,
friends, colleagues, client’s] the New York Grievance Committee, likely the Connecticut Grievance committee, informing them that they had diagnosed [him] as being mentally ill, that they had determined that [he has a] substance abuse problem, that [he] was practicing law without a license, that [he] was a liar, that [he] lied in court, that [he] lied to a Judge, that [he] failed to respond to emails/phone calls, that [he] failed to turn over documents/records that were in [his] possession custody and control, that [he] bounced a check from my IOLA
account etc. ”

“The sufficiency of a pleading to state a cause of action depends upon whether there is substantial compliance with CPLR 3013, which requires that “[s]tatements in a pleading shall be
sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense.” CPLR 3026 also requires that pleadings be liberally construed, and defects ignored if a substantial right of a party is not prejudiced, placing the burden upon the one who attacks a pleading for deficiencies in its allegations to show they are prejudiced. It is further noted that a defamation claim, as is the case here, is subject to the heightened pleading standard of CPlR 3016 (a) which states that “… the particular words complained of shall be set forth in the complaint, but their application to the plaintiff may be stated generally” (see Rubin v Napoli Bern Ripka Shkolnik, LLP, 151 AD3d 603, 604 [1st Dept 2017]).

In order for the court to conduct its review, the plaintiff must set forth exact words of the  offending statements (Offor v Mercy Med. Ctr., 171 AD3d 502, 502 [1st Dept 2019]; Rubin, 151
AD3d 603, at 604 [1st Dept 2017]). Failure to allege the offending words in haec verba, or the use of paraphrasing, requires dismissal (BCRE 230 Riverside LLC v Fuchs, 59 AD3d 282, 283
[1st Dept 2009]). Moreover, “[a]ny qualification in the pleading thereof by use of the words ‘to the effect’, ‘substantially’, or words of similar import generally renders the complaint defective” (Gardner v Alexander Rent-A-Car, Inc., 28 AD2d 667, 667 [1st Dept 1967]). The plaintiff is further required to provide the “time, place and manner of the purported defamation” (Offor, 171 AD3d 502, at 503, quoting Buxbaum v Castro, 104 AD3d 895, 895 [2d Dept 2013]). The cause of action for defamation, libel and slander per se must be dismissed for failure to state a cause of action. The statements that defendants claimed Savitt was “mentally ill” and had a “substance abuse problem” alone are insufficient to satisfy the strict pleading requirements necessary to state these claims against defendants (CPLR 3016; see, Rubin, 151 AD3d at 604). Indeed, Savitt admits that he does not have possession of any documents to substantiate his claims, and even after his friends stated in their affidavits that they turned over to him all documents proving Scott and the Krinsky defendants’ defamatory statements communicated to them, plaintiff did not refer to those documents in the Complaint, nor did he produce them in the motion papers in support of his claims for defamation, libel and slander per se. Savitt also failed to allege special damages for the alleged per se defamatory statements, rendering the Complaint fatally deficient (Rall v Hellman, 284 AD2d 113, 114 [1st Dept 2001]).

Savitt’s cause of action for negligent infliction of emotion distress is dismissed for failure to allege the requisite essential element of an “extreme and outrageous” conduct by defendants to sustain this cause of action (see, Xenias v Roosevelt Hosp., 180 AD3d 588, 589 [1st Dept 2020]). Similarly, the Complaint fails to set forth the four elements of “(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress” to sustain a cause of action for intentional infliction of emotional distress (Howell v New York Post Co., 81 NY2d 115, 121–122 [1993]).”

“Savitt’s motion to amend the Complaint, pursuant to CPLR 3025, is denied. Leave to amend a pleading is freely given absent prejudice or surprise resulting directly from the delay
(CPLR 3025 [b]). “[W]hether the pleading was sufficient to state a cause of action for legal malpractice posed a question of law which could be determined on a motion to dismiss” (see
Rosner v Paley, 65 NY2d 736, 738 1985]). Here, there is no dispute that the purported legal malpractice occurred on or about February 1, 2016, the time Savitt “terminated” and/or the Krinsky defendants “withdrew” their representation of Savitt in the Disciplinary Matter. “An action to recover damages arising from an attorney’s malpractice must be commenced within three years of accrual, and the claim accrues when the malpractice is committed” (see Marzario v Snitow Kanfer Holzer & Millus, LLP 178 AD3d 527, 527 [1st Dept 2019]; CPLR 214 [6] [internal citations omitted]). This action was commenced on April 10, 2019 as reflected in the court’s docket as the date the Summons  and Complaint was filed. The malpractice claim must have been commenced no later than February 1, 2019, three years after the alleged malpractice and therefore the proposed action for legal malpractice is time-barred having commenced this action in April of 2019. Moreover, Savitt failed to state a cause of action for legal malpractice in his proposed amended complaint. “An action for legal malpractice requires proof of three elements: (1) that the attorney was negligent; (2) that such negligence was a proximate cause of plaintiff’s losses; and (3) proof of actual damages” (Excelsior Capitol LLC v. K&L Gates LLP, 138 AD3d 492, 492 [1st Dept 2016]). Additionally, to the extent that the breach of contract claim is alleged and based on the same factual assertions supporting the proposed legal malpractice claim, said cause of action must be dismissed as it is a duplicative claim and/or a claim guised as a breach of contract but is
in fact alleging legal malpractice (see Courtney v McDonald, 176 AD3d 645 [1st Dept 2019]). “

Lawyers are, if nothing else, inventive.  A claim against another lawyer is almost always subject to legal malpractice analysis, and with that, legal malpractice standards.  Claims of fraud, breach of contract, breach of fiduciary duty, intentional infliction of emotional distress, libel, slander, prima facie tort, and even more.  Nevertheless, courts almost always revert to the mean, and apply legal malpractice standards.  Lewis v Pierce Bainbridge Beck Price Hecht LLP  2020 NY Slip Op 31468(U)  May 21, 2020 Supreme Court, New York County Docket Number: 155686/2019 Judge: Andrea Masley is no exception.

“This is a defamation action initiated by plaintiff Donald Lewis on June 7, 2019 against his former law firm, defendant Pierce Bainbridge Beck Price & Hecht LLP (PB). (NYSCEF 2, Complaint.) In the FAC, plaintiff alleges the following against the Putney Defendants: aiding and abetting defamation (second cause of action, ,m 230-244), intentional infliction of
emotional distress (fourth cause of action ,m 251-263), and prima facie tort (sixth cause of  action, ~~279-285). 2 (NYSCEF 37.)

Initially, the Putney Defendants were not named as parties in this defamation action, though plaintiff expressly incorporates by reference the allegations from his New York action
(Index No. 652931/2019) initiated on May 16, 2019, against PB and Putney among others (NY Action /.)(Id.; NYSCEF 37, FAG ~3.) In NY Action I, plaintiff alleged aiding and
abetting breach of fiduciary duty against Yim; tortious interference with contract against the Putney Defendants; and legal malpractice against the Putney Defendants. (NY Action I,
NYSCEF 79.) ”

“Like NY Action I, this action must be dismissed against the Putney Defendants which are entitled to immunity “under the shield afforded attorneys in advising their clients, … in
the absence of fraud, collusion, malice or bad faith.” (Beatie v OeLong, 164 AD2d 104, 109 [1st Dept 1990] [citations omitted].) It is in the public interest that attorneys are not subject
to civil liability for doing their jobs ‘”when performed in good faith and for the honest purpose of protecting the interests of their clients.”‘ (Hahn v Wylie, 54 AD2d 629, 629 [1st Dept
1976].) Here, the Putney Defendants were engaged to investigate an employee’s allegations against plaintiff and to issue a report regarding that investigation, which are
within the scope of their duties as attorneys. (Art Capital Group, LLC v Neuhaus, 70 AD3d 605, 609 [1st Dept 2010] [immunity applied on motion to dismiss claims against attorney
who documented and negotiated a loan transaction and office space because these were within the scope of defendant’s duties as an attorney and giving advise that may result in
breach of contract is not enumerated as exception to immunity].) These are also precisely the activities about which plaintiff complains here.

However, despite a 70-page complaint with 286 paragraphs, not including subparts, plaintiffs claims against the Putney Defendants are woefully insufficient for application of
the exception to immunity. Repeating the words “fraud,” “collusion,” and “malice” does not make it so. It is conclusory, and, thus, is not sufficient. (See Abrams v Pecile, 84 AD3d
618, 619 [1st Dept 2011 ].) Moreover, the bad act here is PB’s use of the report in the LA Action and the press, with which plaintiff takes issue, to defame, discredit and silence
plaintiff. However, the Putney Defendants’ actions to which plaintiff objects are limited to investigating plaintiff’s alleged harassment and drafting the report. (See Peci/e v Titan
Capital Group, LLC, 96 AD3d 543, 544 (1st Dept 2012), leave to appeal denied, 20 NY2d 856 [2013].)

As additional support in opposing the Putney Defendants’ assertion of immunity in this action, plaintiff relies on the affirmation of Peter C. Contino, who represents the Putney
Defendants in this action and NY Action I, which was filed in NY Action I. (NY Action I, NYSCEF 21, Contino Affirmation.) In its motion to dismiss the amended complaint in NY
Action I, the Putney Defendants submitted the LA Action complaint arid quote from it to support their contention that their investigation terminated on November 30, 2018.
However, the Contino affirmation does not, either alone or in conjunction with the other alleged acts, create the fraud, collusion, malicious acts or other special circumstances that
are missing from the FAC. Indeed, it is entitled to an absolute privilege as a relevant statement made by attorneys in connection with a proceeding before a court. (Front, Inc. v
Khalil, 24 NY3d 713, 718 [2015].) “

Litigators should read Garr Silpe, P.C. v Gorman  2020 NY Slip Op 31517(U)  May 20, 2020  Supreme Court, New York County  Docket Number: Index No. 650247/2017
Judge: Kathryn E. Freed and consider whether how to address the Court on the issue of “fundamental fairness.”

“”Under the doctrine oflaw of the case, the parties or those in privity [with them] are ‘preclud[ed] [from] relitigating an issue decided in an ongoing action where there previously was
a full and fair opportunity to address the issue’ (Town of Massena v Healthcare Underwriters Mut. Ins. Co., 40 AD3d 1177, 1179, 834 NYS2d 736 [3d Dept 2007]).” Matter of Goldstein v
Zabel, 146 AD3d 624, 631 (1st Dept 2017). Although counsel for defendant argues that “[t]he merits of Gorman’ s malpractice claims against [plaintiff] have never been determined, by this Court or by either the Referee or Justice Drager in the [m]atrimonial action” (Doc. 138 at 1), this representation is clearly false, since this Court held in its 7 /29/19 order that Justice Drager “resolved the issue of plaintiff’s alleged legal malpractice in plaintiff’s favor and determined the amount ofreasonable attorneys’ fees owed to defendant.” Docs. 101-103 at 11. Defendant did not move to reargue the 7 /29/19 order and has not perfected her appeal therefrom. Thus, the law of the case doctrine applies and precludes defendant from relitigating the issue of plaintiff’s alleged malpractice herein.  Additionally, as plaintiff asserts, defendant’s proposed counterclaim sounding in breach of contract is duplicative of the legal malpractice claim and must be dismissed as well. See lphas v Smith, 147 AD3d 557 (!81 Dept 2017) citing Mamoon v Dot Net Inc., 135 AD3d 656, 658 (!81 Dept 2016).

Since the proposed claims in defendant’s third amended complaint are insufficient as a matter of law (Cross beat NY v Liirn, 169 AD3d 604 [1st Dept 2019]), the motion to amend the
answer is denied. Further, although not raised by plaintiff, defendant failed to comply with the requirement of CPLR 3025(b) that “the proposed amended … pleading clearly show[] the changes or additions to be made to the pleading.” Thus, this Court denies defendant’s motion on this ground as well.
This Court would be remiss if it did not address certain representations made by defense counsel in support of Gorman’ s motion. Specifically, defendant’s attorney states that the motion is being filed “to right the wrongs that have been committed against [ d]efendant and to reinstitute a semblance of fundamental fairness to these proceedings.” Doc. 111 at par. 2. To the extent that counsel appears to be impugning the integrity of this Court, he should consider himself on notice that such conduct will not be tolerated in the future.”

The situation is not unusual.  Attorneys represent client in a transnational setting, and the transaction is compromised, but not yet finished.  Three years are about to pass.  What is the plaintiff to do?  If you do not sue, the statute will pass.  if you do sue, defendant will say that it is too early.  Economic Alchemy LLC v Fincham Downs, LLC  2020 NY Slip Op 31177(U)  May 6, 2020 Supreme Court, New York County,Docket Number: Index No. 156052/2018,  Judge: Louis L. Nock shows one way for resolution.

“As alleged in the amended verified complaint (the “Complaint”), 1 plaintiff, a financial technology intellectual property holding company, retained defendant law firm in 2013 to represent it with regard to five pending patent applications. Those applications seek to acquire
patents for plaintiff’s “methods and systems to estimate market risks and present and future economic conditions . . . . ” (Complaint ¶ 7.) Plaintiff retained defendant law firm after discharging a prior law firm which, in plaintiff’s view, made “incorrect[]” and “negligent[]”
filings in respect of the applications (id., ¶ )9  Plaintiff ultimately discharged defendant law firm, as well, and retained a third law firm to carry on the patent application work. Notably, the applications were still pending before the U.S. Patent and Trademark Office (the “USPTO”) as of the time of the commencement of this lawsuit and the making of the instant motion to dismiss.

In other words, there is, as yet, no determination from the deciding authority – the USPTO – on whether or not plaintiff is entitled to her applied-for patents. As will be observed below, that is a significant factor in the assessment of plaintiff’s claim herein that it has been economically injured through any alleged negligence by defendants, causing a delay in obtaining the patents.

In this action, plaintiff alleges the following:

• Defendant law firm “unnecessarily introduced a limiting feature in the applications that
was not contained in the specification portion of the applications wherein plaintiff’s
inventions are described” (Complaint ¶ 11);
• Defendant law firm “filed a design patent application . . . which included references to
some of plaintiff’s registered trademarks that were incorrectly used and not followed by
the” trademark protective symbols (id., ¶ 13);
• Defendant law firm “filed a specification” which similarly did not include trademark
protective symbols (id., ¶ 15).
The motion to dismiss presents a variety of arguments, including an assertion of lack of
personal jurisdiction over defendants, who are Connecticut domiciliaries; the fact that plaintiff’s
current, third, patent counsel can correct any alleged patent application infirmities claimed to
have been committed by defendants prior to the retention of said third law firm; and that the
economic losses alleged by the plaintiff are purely speculative.

To succeed on a legal malpractice claim, a plaintiff must demonstrate “(1) that the attorney was negligent; (2) that such negligence was a proximate cause of plaintiff’s losses; and (3) proof of actual damages” (Global Business Inst. v Rivkin Radler LLP, 101 AD3d 651, 651 [1st
Dept 2012]; see also, Rudolph v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438 [2007]). “Proximate cause requires a showing that ‘but for’ the attorney’s negligence, the plaintiff would . . . not have sustained any ascertainable damages” (Barbara King Family Trust v Voluto
Ventures LLC, 46 AD3d 423, 424 [1st Dept 2007]). “[T]he failure to show proximate cause mandates the dismissal of a legal malpractice action regardless of whether the attorney was negligent” (Wo Yee Hing Realty Corp. v Stern, 99 AD3d 58, 63 [1st Dept 2012]). An ultimate determination by the USPTO on whether plaintiff will be granted her applied-for patents or not, and whether, fundamentally, plaintiff’s processes are patentable property to begin with, can change the entire landscape of the instant litigation. If the determination is “no” on either or both of those two yet-unanswered questions, plaintiff may be hard pressed to demonstrate, if not incapable of demonstrating, any tangible loss, and, for that matter, any tangible loss that was proximately caused (via “but for” causation) by the defendants herein. That is because the entire factual theory of this case is predicated on an assumption that patentable property was deprived of its rightful protection on account of actions and/or inactions of the defendants. The USPTO will need to first determine the keystone questions of patentability, non-patentability, and the reasons therefor, relating to plaintiff’s patent applications lying at the very heart of this action at law for damages. Therefore, the court perceives no just option at this time but to grant the motion to dismiss to the extent of staying the prosecution of this action pending a final determination by the U.S. Patent and Trademark Office concerning the subject matter patent applications.”

Spoliation of evidence is a certain basis for dismissal.  Negligently, or even worse, intentionally allowing key evidence to be lost or destroyed deprives the opponent of discoverable exculpatory evidence.  Such loss is rarely countenanced.

Manno v Hayes Law Practice, PLLC  2020 NY Slip Op 31228(U)  May 6, 2020  Supreme Court, Kings County  Docket Number: Index No. 520104/16  Judge: Edgar G. Walker discusses what to do when the central piece of evidence is gone.

“Defendants Hayes Law Practice, PLLC and Patrick J. Hayes, Esq.=s motion seeking an order dismissing the plaintiff=s complaint, pursuant to CPLR ‘3126, for spoliation of evidence
and for failure to provide outstanding discovery, is granted. This is a legal malpractice claim that the plaintiffs brought after their underlying lawsuit was dismissed. In that case, the plaintiffs claimed that their home was badly damaged as a result of construction and demolition work done to the home on the neighboring property, which shared a common wall with their home. The plaintiffs= original claims were dismissed because some were brought beyond the governing statute of limitations and the others were dismissed because
of a filing error. Thereafter, the plaintiffs commenced the within action. The plaintiffs’claims against all but the moving defendants were previously dismissed, and now the remaining
defendants move to dismiss based upon claims of spoliation of evidence and failure to comply with court ordered discovery.

The movants argue that the plaintiffs have failed to provide responses to their discovery demands despite several court orders instructing them to do so. More egregiously, the defendants contend that the plaintiffs disposed of the one piece of evidence that is at the center of this case when they sold their home, which was thereafter demolished before the defendants= experts had an opportunity to inspect it. The defendants argue that as a result of the plaintiffs= actions, they cannot mount a proper defense.
Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR ‘3126.
Holland v W.M. Realty Mgt., Inc., 64 A.D.3d 627 (2nd Dept. 2009). The Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of
evidence and may, under appropriate circumstances, impose a sanction even if the destruction occurred through negligence rather than wilfulness. Biniachvili v Yeshivat Shaare Torah, Inc., 120 A.D.3d 605 (2nd Dept. 2014).

Spoliation sanctions are not limited to cases where the evidence was destroyed willfully or in bad faith, since a party’s negligent loss of evidence can be just as fatal to another party’s
ability to present a case or a defense. DiDomenico v C & S Aeromatik Supplies, 252 A.D.2d 41 (2nd Dept. 1998). AWhen a party alters, loses or destroys key evidence before it can be examined by the other party’s expert, the court should dismiss the pleadings of the party responsible for the spoliation.@ Squitieri v. City of New York, 248 A.D.2d 201 (1st Dept. 1998).”

it is neither novel, nor a surprise that legal malpractice might come up in a complicated trust/estate/real estate/debtor-creditor case.  Here, a valuable building in the meatpacking district of New York City was at issue. Romanoff v Trustees of the Sheryl Romanoff Irrevocable Grantor Trust. 2020 NY Slip Op 31150(U) May 4, 2020 Supreme Court, New York County
Docket Number: Index No. 157641/2014 Judge: James E. d’Auguste illustrates how the thicket grows.

“New Roads, a Delaware company, was the sole shareholder of GHC, and Gerald had sole control over New Roads. Gerald and his spouse Sheryl each owned 49.5% of the common stock of New Roads. Nicholas Romanoff (Nicholas), Robert’s son and their grandson, owned the remaining 1%. In turn, GHC owned the property located at 55 Gansevoort Street in Manhattan (the Property). Over the years, GHC, New Roads, and Gerald had taken out or guaranteed millions of dollars in loans. As a result of these guarantees, there were two mortgages on the Property. When the debtors were unable to repay their debts, the Gans defendants obtained judgments against them in New Jersey and sought their enforcement in New York. Gerald had transferred his 49.5% share of New Roads to his wife in an effort to keep the stock from his creditors. Sheryl put the stock into two trusts: The Sheryl Romanoff Irrevocable Grantor Trust (the IGT), which contained 49.5% of the shares of the common stock of New Roads, and the Sheryl Romanoff Grantor Retained Annuity Trust (the GRAT), which initially contained 49.5% of the New Roads shares. Robert and Zimmerman had been the co-trustees of both trusts, and Robert was a lifetime beneficiary. In 2012, the GRAT ceased to exist and the corpus transferred to the IGT. The Gans defendants sought and obtained an order which set aside the transfers as fraudulent (55 Gans Judgment LLC v Romanoff, Sup Ct, NY County, Feb. 6, 2013, Mendez, J., index No. 106008/2011 [the 55 Gans Judgment order], appeal dismissed 123 AD3d 452 [1st Dept 2014], lv dismissed 26 NY3d 1073 [2015]). The order effectively denuded the IGT, which by this time contained 99% of the shares of the New Roads stock. On June 25, 2012, the Gans defendants settled their disputes with Gerald, Sheryl, GHC, and New Roads (NYSCEF Doc. No. 238 [the Settlement]). Under the Settlement, the Gans defendants forgave all mortgage obligations, released Gerald’s debts, released their judgments against the debtors, satisfied an unrelated judgment against GHC, and made certain payments to GHC and its attorney. In exchange, the debtors transferred the Property to the Gans defendants. The 55 Gans Judgment order rejected Robert’s attempt to intervene in the action and oppose the settlement, and Robert’s appeals on behalf of the trusts were dismissed because the co-trustee did not take part in or support the litigation (see 55 Gans Judgment LLC v Romanoff, 123 AD3d 452 [1st Dept 2014]). ”

“Collateral estoppel and res judicata protect litigants from repetitive lawsuits, promotes judicial economy, and preserves the integrity of the judicial system (Paramount Pictures Corp. v
Allianz Risk Transfer AG, 31 NY3d 64, 73 [2018] [Paramount]). Collateral estoppel “precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Wilson v Dantas, 29 NY3d 1051, 1062 [2017]
[internal quotation marks and citation omitted]). The doctrine is a subset of the broader doctrine of res judicata (see Wilson v Dantas, 29 NY3d at 1062). Res judicata bars all claims “arising out of the same transaction or series of transactions as a claim that was previously resolved on the merits and which the party opposing preclusion had a full and fair opportunity to litigate” (Platon v Linden-Marshall Contr. Inc., 176 AD3d 409, 410 [1st Dept 2019] [internal quotation marks and citation omitted]). Res judicata applies even to claims that were not litigated if they were or could have been raised previously (Wilson, 29 NY3d at 1062; see Munroe v Park Ave. S. Mgt., 99 AD3d 426, 427 [1st Dept 2012]). For this reason, a judgment on the merits in a prior action between the same parties bars litigation under a different legal theory (see Dickerson v United Way of N.Y. City, 113 AD3d 452, 452-453 [1st Dept 2014]). Further, if the losing party does not appeal an adverse judgment in a prior case between the same parties, that party cannot assert the claim in another lawsuit (see Cohen v Glass, 173 AD3d 580, 580 [1st Dept 2019]). ”

“The Court grants motion sequence no. 005 in its entirety. As the Gans defendants argue, plaintiffs lack standing to raise the trust-based claims they assert against them in the third and fifth causes of action. The issue of standing, the Gans defendants point out, has been resolved in several prior orders within and outside of the New York State courts. They cite the First Department decision in Romanoff III, which found that Romanoff I collaterally estopped Robert from pursuing trust-based claims, and that due to Nicholas’ privity with Robert, collaterally estoppel precluded Nicholas as well (Romanoff III, 148 AD3d at 617). In Romanoff I, Justice Singh emphasized in 2017 that “both Robert and Nicholas do not have standing to bring these claims on behalf of the trusts in any capacity, and Robert has no standing to bring the derivative claims on behalf of the corporations” (Romanoff I, NYSCEF Doc. No. 185 [2017 NY Slip Op 30461[U], *16 (March 8, 2017)]). That order further found that there was no standing because the trusts had been terminated, and that this also meant that plaintiff lacked standing to sue derivatively on behalf of New Roads (id. at 16-17). The Gans defendants also annex copies of the oral argument transcripts from Romanoff v New Roads Realty Corp. (Chancery Ct, DE, Civ Action 12375 –VCS, April 10, 2017, Slights, Vice Chancellor [“Slights Transcript”] [NYSCEF Doc. No. 195]), in which the Vice Chancellor adheres to the New York State court rulings. Further, the trust beneficiaries have no standing to sue regarding property that was in the trusts (see Matter of Larchmont Pancake House v Board of Assessors and/or Assessors of the Town of Mamaroneck, 33 NY3d 228, 240 [2019]; Buechel v Bain, 275 AD2d 65, 65 [1st Dept 2000]).

As Griffon correctly notes, the sixth cause of action for rescission also must be dismissed based on collateral estoppel. Justice Singh dismissed plaintiffs’ rescission claim
in Romanoff III. The trial court ruled that adequate monetary damages were available, noting that plaintiffs’ asserted goal had been to sell the Property at a higher value. It stated that plaintiffs’ assertions to the contrary were conclusory and without any evidentiary basis (Romanoff III, “

In a recurring theme, the “but for” element of legal malpractice is the place where battles are lost.  Rag & Bone Holdings LLC v Hand Baldachin & Assoc. LLP  2020 NY Slip Op 31149(U) May 2, 2020 Supreme Court, New York County Docket Number: Index No. 156994/2019  Judge: Andrea Masley is a fine example.  The Court determines that the case is timely.  It determines that there is enough of an attorney-client relationship for “privity.”  However, there is no “but for” causation.

“Defendants contend that the legal malpractice claim must be dismissed because the alleged legal malpractice occurred in 2012, and this action was not commenced until
2019, far beyond the three year statute of limitations. Holdings asserts that its claim is timely because defendants continuously represented Holdings in connection with the
matters at issue until at least January 2017.  As alleged in the complaint, defendants routinely advised Holdings relating to the MA and the calculation of T J PRP’s distributions pursuant to the operating agreement, which depended on the calculation of the management fee under the MA (NYSCEF 11, Complaint at ~~25, 33). These allegations are also supported by documentary evidence, including an email sent by defendant Hand to TJ PRP in November 2016 and defendants’ invoices (NYSCEF 38, Email; NYSCEF 40, Invoices).
While the court acknowledges that the allegations in the complaint involve references to the MA and its application, but do not involve specific action taken by defendants regarding the agreement, the references to the MA in the exhibits submitted by Holdings demonstrate a continued representation in connection with the MA. At this stage, the allegations, as supported by documentary evidence, are sufficient to deny the motion to dismiss on statute of limitations grounds. At the very least, the documentary evidence raises an issue of fact as to continuous representation. ”

Standing
“Defendants contend that the complaint must be dismissed because Holdings is not a party to the MA. Defendants contend that as a nonparty, Holdings lacks standing
to sue for damages based on defendants’ alleged malpractice in drafting the MA. Holdings asserts that the legal work that defendants performed in connection with the
MA was performed on behalf of Holdings, as evidenced by defendants’ own invoices. Holdings alleges “specific facts upon which the existence of an attorney-client
relationship or privity between the parties could be inferred” (Conti v Polizzotto, 243 AD2d 672, 673 [2d Dept 1997]). Holdings has sufficiently alleged that the existence of
an attorney-client relationship with defendants. This relationship is also supported by documentary evidence (NYSCEF 38, Email; NYSCEF 40, Invoices). It is irrelevant that
Holdings was not a party to the MA. What is relevant is the alleged attorney-client relationship between Holdings and defendants, and Holdings has sufficiently established that relationship.”

Proximate Cause

“Here, Holdings has failed to sufficiently allege that defendants’ alleged negligent drafting of the MA and operating agreement was the proximate cause of its damages.
In contrast, Holdings alleges in its complaint that Holdings was made aware of the alleged error in the calculation formula but failed to do anything to correct it besides
sending one email to defendants which went unanswered (NYSCEF 11, Complaint at  22, 23). Further, Holdings admits that, despite knowing of the calculation formula
agreed to in the MA, for five years, it continued to calculate the management fees contrary to the plain language of the MA (id. at ~24). This continued defiance of the MA
calculation was the proximate cause of Holdings’ damages. Further, although Holdings alleges that defendants continued to provide legal services in respect to T J PR P’s distributions, the complaint is bereft of an allegation that defendants continued to advise Holdings to breach the MA by calculating the fees in the manner Holdings believed that
the parties intended. The court cannot hold an attorney liable for the egregious conduct of its client. “

Matrimonial legal malpractice cases are difficult for plaintiff.  Generally they end in a settlement and courts have held that mere settlement (even if effectively compelled by mistakes of counsel) will not permit a legal malpractice case to be brought.  Other courts have held that the allocution which generally  accompanies an in-court settlement serves to immunize the attorneys when plaintiff answers the Court’s question and says that they are satisfied with the attorney’s work.

Here, in Blumencranz v Botter  2020 NY Slip Op 02452 Decided on April 29, 2020 Appellate Division, Second Department, against great odds, the motion for summary judgment was denied and affirmed on appeal.

“”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). In order to be entitled to summary judgment, the movant “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Here, the defendant failed to demonstrate the absence of triable issues of fact as to whether his actions in advising the plaintiff with regard to the stipulation of settlement evidenced a failure on his part to exercise the requisite level of skill and knowledge, and whether those actions were a proximate cause of any damages incurred by the plaintiff. Since the defendant failed to meet his prima facie burden, we agree with the Supreme Court’s determination denying his motion for summary judgment dismissing the amended complaint (see Birnbaum v Misiano, 52 AD3d 632, [*2]634), regardless of the sufficiency of the plaintiff’s opposition papers (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).”

The formulaic decision in Kahlon v DeSantis 2020 NY Slip Op 02464 Decided on April 29, 2020 Appellate Division, Second Department comes with a recitation of the standard of a CPLR 3211(a)(7) motion, and a theoretical discussion of the requirement of “but for” causation.  There is no guidance to the bar in how the alleged facts fell short of “but for” causation.

“Here, we agree with the Supreme Court’s determination granting that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging legal malpractice. Accepting as true the facts alleged in the complaint, and according the plaintiffs the benefit of every favorable inference (see Leon v Martinez, 84 NY2d at 87-88), the conclusory allegations of the complaint failed to adequately plead specific facts to establish that, but for the defendants’ alleged negligent conduct, the outcome in the underlying action would have been any more favorable to the plaintiffs, or that the plaintiffs would not have incurred any damages (see Benishai v Epstein, 116 AD3d at 728; Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d at 813; Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083). Accordingly, the complaint failed to state a cause of action to recover damages for legal malpractice.

Additionally, the plaintiffs’ remaining causes of action are duplicative of the legal malpractice cause of action, since they arise from the same facts as those underlying the legal malpractice cause of action and do not allege distinct damages; hence, they are similarly subject to dismissal (see Mackey Reed Elec., Inc. v Morrone & Assoc., P.C., 125 AD3d 822, 823; Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d at 813). Accordingly, we agree with the Supreme Court’s determination granting those branches of the defendants’ motion which were to dismiss those causes of action.”