Continuing a line of cases containing the unique Schiller v. Bender Burroughs & Rosenthal allocution anomaly, Valentina v Beckerman 2025 NY Slip Op 04682 decided on August 13, 2025 Appellate Division, Second Department finds that the pro-forma question “are you satisfied with your attorney’s representation?” kills a subsequent legal malpractice claim that she was “effectively compelled” to settle.

In 2019, the plaintiff, proceeding pro se, commenced this action against the defendants, asserting causes of action alleging legal malpractice, fraud, breach of contract, breach of fiduciary duty, intentional and negligent infliction of emotional distress, and sex discrimination. The plaintiff alleged, inter alia, that the defendants represented her in a matrimonial action (hereinafter the underlying action), which resulted in a settlement agreement that the plaintiff described as “unconscionable” and “fraudulent.” The defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint, arguing, among other things, that the legal malpractice cause of action was barred by the plaintiff’s allocution regarding the settlement agreement in the underlying action. The plaintiff opposed the motion and thereafter moved for leave to amend the complaint. In an order entered December 21, 2020, the Supreme Court granted the defendants’ motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. In a separate order also entered December 21, 2020, the court denied, as academic, the plaintiff’s motion for leave to amend the complaint. A judgment entered January 6, 2021, upon the orders, dismissed the complaint. The plaintiff appeals.

“Under CPLR 3211(a)(1), a dismissal is warranted only where the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (374-76 Prospect Place Tenants Assn., Inc. v City of New York, 231 AD3d 911, 912 [*2][internal quotation marks omitted]; see Klein v Catholic Health Sys. of Long Is., Inc., 231 AD3d 797, 798). “For the purpose of CPLR 3211(a)(1), judicial records . . . , the contents of which are essentially undeniable, would qualify as documentary evidence” (Oparaji v ABN Amro Mtge. Group, Inc., 202 AD3d 985, 987 [internal quotation marks omitted]). “On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory” (Gorbatov v Tsirelman, 155 AD3d 836, 837). “Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one and, unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal shall not eventuate” (374-76 Prospect Place Tenants Assn., Inc. v City of New York, 231 AD3d at 913; see Guggenheimer v Ginzburg, 43 NY2d 268, 274-275).

“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” (Glenwayne Dev. Corp v James J. Corbett, P.C., 175 AD3d 473, 473-474 [internal quotation marks omitted]; see Givens v De Moya, 193 AD3d 691, 693). “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” (Glenwayne Dev. Corp v James J. Corbett, P.C., 175 AD3d at 474 [internal quotation marks omitted]). “A legal malpractice cause of action is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel” (id. [internal quotation marks omitted]).

Here, in support of their motion, the defendants submitted, inter alia, a transcript of the court proceeding in the underlying action containing the plaintiff’s allocution conducted by the court regarding the settlement agreement, which conclusively established that the plaintiff was not effectively compelled to settle the underlying action (see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 757-758). The plaintiff’s allegations that she was coerced into settling the underlying action were utterly refuted by her admissions during that proceeding that she authorized the defendants to prepare the settlement agreement, was satisfied with the defendants’ representation, was not forced to enter into the settlement agreement, and was not under the influence of stress or duress (see Glenwayne Dev. Corp v James J. Corbett, P.C., 175 AD3d at 474). Although the plaintiff alleged, among other things, that the defendants failed to obtain temporary maintenance during the pendency of the underlying action, improperly advised her that the court was required to impute income to her, and advised her of the possible pitfalls of proceeding to trial rather than settling, those actions did not proximately cause any injuries to the plaintiff since the underlying action was settled and, in light of the plaintiff’s admissions in the underlying action, the “settlement of the [underlying] action was [not] effectively compelled by the mistakes of counsel” (id. [internal quotation marks omitted]). The fact that the plaintiff subsequently was unhappy with the settlement she obtained does not rise to the level of legal malpractice (see Floral Park Ophthalmology, P.C. v Ruskin Moscou Faltischek, LLP, 216 AD3d 1136, 1137; Williams v Silverstone, 215 AD3d 787, 789). Accordingly, the legal malpractice cause of action was properly dismissed.”

Deutsche Bank Natl. Trust Co. v Lopresti 2025 NY Slip Op 51235(U) Decided on July 28, 2025 Supreme Court, Rockland County Fried, J. is a case where history has caught up with the current law. Foreclosures in the past were more mechanistic than today, and after a raft of scandalous “auto-signing” and other foreclosure problems many new protections are in place.

This case references standing in legal malpractice cases involving estates.

“On February 13, 2008, Plaintiff’s predecessor-in-interest, IndyMac, commenced a foreclosure action against Borrower/Decedent Charles Joseph Lopresti (“Decedent”) (Index No. 2008-01426). While a judgment of foreclosure and sale was entered in the aforesaid 2008 action as against Decedent, same was vacated. An answer to the 2008 complaint with counterclaims and a reply thereof were subsequently filed in or about 2009. On February 1, 2010, Decedent died. Notwithstanding Decedent’s death, and while the 2008 action was still pending, on April 27, 2010, Plaintiff commenced a second foreclosure action on the mortgage against Decedent (Index No. 2010-004359 [later converted to e-filing under Index No. 034370/2023]). Decedent was not served process in the 2010 action prior to his death. Plaintiff did not discontinue the 2010 action nor commence a new action against Decedent’s heirs and distributees or against the estate representative, once one had been appointed. Instead, Plaintiff continued the action and moved for an order from the Supreme Court to appoint a personal representative of the estate — a motion that the Supreme Court denied. In late 2010, Plaintiff moved to discontinue the 2008 action, which the Court granted on January 10, 2011.

Litigation proceeded in the 2010 action, including an appeal to the Appellate Division, which resulted in the order granting summary judgment to Plaintiff being reversed. (Deutsche Bank Natl. Tr. Co. v. LoPresti, 203 AD3d 883 [2d Dept 2022].) Following remittance from the Appellate Division, Plaintiff moved again for summary judgment and Defendant cross-moved to dismiss the complaint as a nullity because Decedent had been named as defendant but had died prior to the commencement of the action. The Supreme Court entered an order granting the cross-motion and dismissing the complaint on May 24, 2024. While Plaintiff appealed that decision and order, same was withdrawn on November 5, 2024.

On September 5, 2024, Plaintiff commenced this foreclosure action by filing the Summons, Complaint, Notice of Pendency, and Certificate of Merit via NYSCEF. On November 13, 2024, Defendant Karen LoPresti, as Administratrix of the Estate of Decedent (“Defendant”), served a Verified Answer with affirmative defenses and counterclaims via NYSCEF. On December 2, 2024, Plaintiff served its verified reply to Defendant’s counterclaims.

On January 30, 2025, a Note of Issue was filed. The time to file Motions for Summary Judgment was extended on consent of the parties, with a stipulated briefing scheduled entered on May 22, 2025. On June 25, 2025, Defendant brought the within Motion Sequence No. 1 seeking an order granting summary judgment dismissing the Complaint and for judgment on Defendant’s counterclaim to cancel and discharge the subject Mortgage as barred by the statute of limitations. Plaintiff opposes said Motion.”

“As to the issue of Defendant’s standing to raise the aforesaid statute of limitations defense and the two counterclaims, Defendant was appointed administrator of Decedent’s estate on May 13, 2014. Defendant demonstrated this fact by submitting documentary evidence (NYSCEF Doc. No. 73 [a copy of the Letters of Administration from the Surrogate’s Court for Rockland County appointing Defendant as administratrix of Decedent’s estate]). Defendant’s counsel affirms that said document was mailed to him, as Defendant’s attorney, by the Clerk of the Surrogate’s Court and maintained in his file for this case (NYSCEF Doc. No. 63). As such, contrary to Plaintiff’s contention, Defendant’s Motion is supported by competent and admissible evidence (see, Olan v. Farrell Lines, 64 NY2d 1092, 489 N.Y.S.2d 884, 479 N.E.2d 229 [1985]; and Silverite Constr. Co. v. Town of N. Hempstead, 229 AD2d 387, 644 N.Y.S.2d 565 [2nd Dept. 1996]). Plaintiff has failed to raise a triable issue of fact regarding same. Moreover, Plaintiff, in the caption of its Complaint herein, named Defendant Karen LoPresti, as Administratrix of the Estate of Charles Joseph Lopresti a/k/a Charles J. Lo Presti a/k/a Charles J. Lopresti.

Also contrary to Plaintiff’s contention, based on the foregoing, Defendant has standing to raise the statute of limitations defense and the two counterclaims. “[T]he estate essentially ‘stands in the shoes’ of a decedent’ (Schneider v. Finmann, 15 NY3d 306, 933 N.E.2d 718, 907 N.Y.S.2d 119, [2010] [quoting Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 192 SW3d 780, 787 (Tex 2006)] [finding that an estate representative can maintain a claim against an attorney for professional malpractice, even though a third party without privity could not]). See also, Russo v. Rozenholc, 130 AD3d 492, 13 N.Y.S.3d 391 (1st Dept. 2015) [executor of decedent’s estate had standing to maintain breach of contract action and legal malpractice action against attorney, . . . although executor was not signatory to retainer agreement, where estate stepped into decedent’s shoes, and specifically authorized attorney to represent estate’s interests under retainer agreement].

Accordingly, since Defendant has succeeded in her defense against the Plaintiff’s action to foreclose the mortgage, and she did assert a counterclaim for attorney’s fees (NYSCEF Doc. No. 39), she is entitled to attorneys’ fees and expenses pursuant to RPL §282 (see, U.S. Bank N.A. v. Bajwa, 208 AD3d 1197, 175 N.Y.S.3d 247 [2nd Dept. 2022]; and Deutsche Bank Natl. Trust Co. v. Gordon, 179 AD3d 770, 774, 117 N.Y.S.3d 688).

Because this action is barred by the statute of limitations, this Court need not address Plaintiff’s Cross-Motion Sequence No. 2 for Summary Judgment.”

We will be the first to admit surprise at the application of Anti-Slapp principles to legal malpractice cases. Nevertheless, references have started to creep into court’s decisions. Avanza Group, LLC v Golenbock Eiseman Assor Bell & Peskoe LLP 2025 NY Slip Op 32125(U) June 13, 2025 Supreme Court, New York County Docket Number: Index No. 659427/2024 Judge: Lyle E. Frank is one such case.

“Plaintiff the Avanza Group, LLC is a provider of merchant cash advances (“MCAs”). Plaintiff entered into a series of agreements with non-party BFG 102, LLC, a factoring company that provides funding for MCA companies. During the relevant time, BFG was represented by defendant Golenbock Eiseman Assor Bell & Peskoe LLP, who had assigned attorney Elizabeth C. Conway (collectively with Golenbock Eiseman, “Defendants”) to the matter. In April of 2023, Plaintiff and BFG agreed over email to modify the terms of these agreements as relating to Plaintiff’s financial obligations. Shortly thereafter, Defendants sent out letters to many of Avanza’s MCA merchants, describing Plaintiff as in default and directing the diversion of funds from Plaintiff to BFG (the “April Letters”). A letter was also sent to non-party ACH, who processes electronic fund transfers. Plaintiff alleges that they were not genuinely in default at this time and that the default was “manufactured” in order to rectify BFG’s poor financial condition. Plaintiff also alleges that Defendants were motivated to assist in manufacturing a default by a desire to ensure payment of their legal fees.”

“Defendants have moved to dismiss the complaint for failure to state a claim and as contradicted by documentary evidence. They have also moved to dismiss under New York’s Anti-SLAPP law, arguing that this proceeding was instigated in a “bad faith effort to harass and retaliate against” BFG and Defendants. Plaintiff opposes. For the reasons that follow, the motion is granted.
Defendants Have Shown That This Is a SLAPP Suit
A threshold issue in this matter is whether the Anti-SLAPP law applies to this proceeding. This statute is found in New York’s Civil Rights Law Article 7, which permits a “defendant in an action involving public petition and participation” to recover costs and attorneys’ fees if it is determined that “the action involving public petition and participation was commenced or continued without a substantial basis in fact and law.” N.Y. Civil Rights Law 70-a.1 According to a recently expanded definition of the term “public petition and participation”, this encompasses claims that are based upon “any other lawful conduct in furtherance of the exercise of the constitutional right […] of petition.” N.Y. Civil Rights Law § 76-a(1)(a)(2). The right of petition includes litigation as well as “activity incidental to litigation.” Matter of People of the State of New York v. Northern Leasing Sys., Inc., 193 A.D.3d 67, 77 [1st Dept. 2021]. The First Department has confirmed that this right encompasses litigation regardless of whether the subject matter of that suit could be considered private or public. Sweetpea Ventures Inc. v. Belmamoun, 231 A.D.3d 460, 461 [1st Dept. 2024].

Defendants argue that this case was brought against them because of their representation of BFG and for their legal advocacy work on behalf of their client, therefore it is considered a retaliatory action involving the right to public petition. Plaintiff disagrees and argues that a claim for tortious interference cannot be considered a SLAPP suit. They do not cite to any binding authority for this proposition. In Black, the First Department found that a malicious prosecution claim that was “rooted in allegations involving defendants’ commencement and prosecution of a
legal action” invoked the right to petition and therefore the procedural requirements of the Anti- SLAPP law. Black v. Ganieva, 236 A.D.3d 427, 427 [1st Dept. 2025]. The First Department has also applied the Anti-SLAPP law to a case involving claims of tortious interference pled against an opposing party and their counsel. 215 W. 84th St. Owner LLC v. Bailey, 217 A.D.3d 488, 488 [1st Dept. 2023]; see 215 W. 84th St. Owner LLC v. Bailey, 2022 N.Y.L.J. LEXIS 1717, *1 [Sup. Ct. N.Y. Co. 2022].”

“But Defendants have argued persuasively that this instant proceeding was brought in response to Defendants’ actions taken in the course of representing their client in the BFG Suit. The timing of this proceeding (given the context of the BFG Suit’s developments) and the contentious relationship between the parties in the course of the BFG Suit (as seen by the multiple motions for contempt and to disqualify that were brought against Defendants in that proceeding by Avanza) lend credence to the retaliation theory. The fact that the claims brought were not defamation, but rather tortious interference and Judiciary Law claims, does not bar the application of the Anti-SLAPP provisions.”

“

DKSJ, LLC v Cohen 2025 NY Slip Op 32574(U) July 14, 2025 Supreme Court, New York County Docket Number: Index No. 653100/2024 Judge: Margaret A. Chan is part of a larger group of cases including a legal malpractice case. The legal malpractice case, not entirely fleshed out here, appears to be a question of whether the law firm represented the entity, each of the participants or just some of them. A Breach of Fiduciary Duty and Legal Malpractice claims were made in a separate case.

“In this action to recover for breach of a Put Agreement, plaintiff DKSJ LLC moves to renew its prior motion for summary judgment in lieu of complaint pursuant to CPLR 2221 and 3213 on the grounds that its federal lawsuit was dismissed for lack of subject matter jurisdiction. Defendant opposes and cross· moves to (a) disqualify plaintiffs counsel, the law firms Lowenstein Sandler LLP and Michelman & Robinson LLP; and (b) consolidate this action with the related proceeding Joseph S. Cohen v DKSJ LLC et al, Index No. 650971/2025. For the
reasons below, plaintiffs motion to renew is granted and, upon renewal, summary judgment in lieu of complaint is granted, and defendant’s cross-motion is denied in its entirety.”

“As summarized in this.court’s prior Decision and Order denying plaintiffs motion for summary judgment (NYSCEF # 41, Prior Order), plaintiff claims that on October 15, 2021, it entered into a series of agreements under which it would purchase 1% of the equity ofnon·party Snow Joe, LLC (Snow Joe) for $10,000,000 (NYSCEF # 4, Katz Aff ,r 5). 1 Defendant Joseph S. Cohen is the controlling manager of Snow Joe (id ,r 4). One of the agreements was a “Put Agreement” under which plaintiff could demand repayment of its $10,000,000 from defendant in exchange for plaintiffs equity in Snow Joe (Put Right) (NYSCEF # 6, Put Agreement§ l[a]). As relevant to the Prior Order, the Put Agreement contained a forum selection clause selecting the United States District Court for the Southern District of New York for any litigation or dispute (id. § 13). Plaintiff avers that on
January 30, 2023, plaintiff demanded repayment under the Put Agreement, and defendant failed to make repayments (Katz Aff ,r,r 9·14; see also NYSCEF # 7, Put Notice).”

“According to defendant, in the two years following the Put Agreement, Snow Joe’s economic standing slowly but surely began to fall due to the geopolitical circumstances at the time (Defs Aff ,r,r 11·13, 15). Defendant alleges that Katz insisted defendant hire Lowenstein to help Snow Joe through these troubles (id ,r 16). Defendant did ultimately hire Lowenstein to represent Snow Joe in late 2022 as shown by an Engagement Email from Lowenstein to defendant (NYSCEF # 25, Engagement Email). Notably, the Engagement Email makes clear that Lowenstein’s “engagement is limited to the Company [Snow Joe], and [Lowenstein did] not agree □ to represent any other person, or any business entity” (id at 1). The Engagement Email also contains a conflict waiver regarding Katz and his affiliates (id at 3-4).”

“On March 5, 2025, plaintiff filed the present motion to renew based on the District Court’s dismissal and set the return date for March 25. On March 17, the day before his opposition was due, defendant filed the complaint in the Malpractice Action bringing claims for a declaratory judgment that the Put Agreement was unenforceable against him, breach of fiduciary duty claims against Lowenstein and one of its partners, aiding and abetting breach of fiduciary duty against plaintiff and its principal, and legal malpractice against Lowenstein and its partner along
with aiding and abetting legal malpractice against plaintiff and its principal (see Index No. 650971/2025, Joseph S. Cohen v DKSJ LLC et al, NYSCEF # 3 ,r,r 134· 164). The next day, on March 18, 2025, defendant timely filed his opposition to plaintiffs renewal motion as well as the present cross-motions to disqualify plaintiffs counsel (both Lowenstein and Michelman) and consolidate this action with the Malpractice Action (NYSCEF # 50, Notice of Cross-Motion; NYSCEF # 51, Defs Renewal Opp).”

“In the first of many unsuccessful arguments, defendant argues that plaintiffs renewal motion must be denied because the District Court’s decision is not “newly discovered evidence” in that plaintiff knew about the forum selection clause even at the time of the original motion (Defs Renewal Opp at 4). However, the District
· Court’s decision and the existence of the forum selection clause are two completely different facts as is implicitly recognized in the decisions this court cited (see Spirit, 84 AD3d at 456; Micro Balanced Products, 238 AD2d at 285). It would appear that defendant conflates the forum selection clause and the District Court’s decision so to
manufacture a procedural hurdle and waste judicial resources and time. It also appears that this argument was made in bad faith given that defendant opposed the original motion on the forum selection grounds only to concede that the federal court had no subject matter jurisdiction. In any event, the District Court’s decision
constitutes a definitive ruling on the forum selection issue that defendant placed before this and the District Court. In sum, plaintiffs argument fails.

Plaintiffs motion to renew is therefore granted, and upon renewal, the merits of the summary judgment in lieu of complaint motion are addressed here.”

“Defendant cross moves to disqualify plaintiffs counsel, both Lowenstein and Michelman. On a motion to disqualify counsel, “the moving party must prove, among other things, the existence of a prior attorney-client relationship between itself and opposing counsel” (Campbell v McKean, 75 AD3d 479,480 [1st Dept 2010]). “To determine whether an attorney-client relationship exists, a court must consider the parties’ actions …. [Aln attorney-client relationship is established where there is an explicit undertaking to perform a specific task. … While the existence of the relationship is not dependent upon the payment of a fee or an explicit agreement, a party cannot create the relationship based on his or her own beliefs or actions” (Pellegrino v Oppenheimer & Co., 49 AD3d 94, 99 [1st Dept 2008]).

“A party has a right to be represented by counsel of its choice, and any restrictions on that right must be carefully scrutinized … The decision of whether to grant a motion to disqualify rests in the discretion of the motion court” (Mayers v Stone Castle Partners, LLC, 126 AD3d 1, 6 [1st Dept 2015] [quotation marks
omitted]).

Here, defendant’s cross·motion to disqualify plaintiffs counsel fails because there was never an attorney-client relationship between defendant and either of plaintiffs law firms. Lowenstein’s engagement email makes clear that Lowenstein was only representing Snow Joe, not any other individuals (see Engagement Email at 1). This alone is dispositive, as it is well-settled that an attorney representing an organization does not represent the individuals within it, even if they are directors or majority shareholders (see 22 NYCRR 1200.0 rule 1.13 [a] [“When a lawyer
employed or retained by an organization is dealing with the organization’s directors, officers, employees, members, sh~reholders, or other constituents … the lawyer is the lawyer for the organization and not for any of the constituents.”]). Nor does defendant allege any conduct by Lowenstein that could have created an attorney·
client relationship going beyond that with Snow Joe. Similarly, defendant does not allege in any way, shape, or form that Michelman ever represented him. Defendant’s sole argument is that Lowenstein “undoubtedly” shared Snow Joe’s confidential information with Michelman and therefore should be removed (Defs Renewal Opp at 11). However, defendant offers only speculation to support this claim (id at 10·11). These conclusory arguments
fail to establish “the existence of a prior attorney-client relationship” (Campbell, 75 AD3d at 480).

There is no reason to reach defendant’s remaining arguments, including waiver, that plaintiff is not an “affiliate” of Katz for the purpose of waiver, that Lowenstein “created the event that resulted in the Put Right,” or any other
argument. All else is irrelevant in the face of defendant’s failure to establish a former attorney-client relationship with plaintiffs counsel, and so the cross·motion to disqualify must be denied.”

It is of course ironic when a legal malpractice case is dismissed for failure to engage in discovery. This appears to be the holding in Manno v Hayes Law Practice, PLLC 2025 NY Slip Op 04167 Decided on July 16, 2025
Appellate Division, Second Department.

“The plaintiffs commenced this action, inter alia, to recover damages for legal malpractice after their prior action to recover damages for injury to property (hereinafter the underlying action) was dismissed. The underlying action, in which the plaintiffs alleged that their home was severely damaged due to construction and demolition work done to a neighboring property, was dismissed because some of the causes of action were brought beyond the applicable statute of limitations and because the action was commenced without the filing of a summons.

The plaintiffs commenced the instant action against, among others, the defendants Hayes Law Practice, PLLC, and Patrick J. Hayes (hereinafter together the defendants). The defendants moved pursuant to CPLR 3126 to strike the complaint insofar as asserted against them for spoliation of evidence and for failure to comply with court-ordered discovery. In an order dated May 6, 2020, the Supreme Court granted the defendants’ motion. The plaintiffs appeal.

“The court has broad discretion to determine the nature and degree of any sanction to be imposed under CPLR 3126 for the failure to comply with discovery demands or orders” (Reyes v U.S. Sec. Assoc. Aviation Servs., Inc., 230 AD3d 708, 709 [internal quotation marks omitted]; see Pfeiffer v Shouela, 206 AD3d 941, 942). “Absent an improvident exercise of discretion, the determination to impose sanctions for conduct that frustrates the purpose of the CPLR should not be disturbed” (Elaine Farsiso, LLC v Long Is. Compost Corp., 227 AD3d 868, 870 [internal quotation marks omitted]; see Sepulveda v 101 Woodruff Ave. Owner, LLC, 166 AD3d 835, 836).

“The willful and contumacious character of a party’s conduct can be inferred from [*2]the party’s repeated failure to comply with discovery demands or orders without a reasonable excuse” (Reyes v U.S. Sec. Assoc. Aviation Servs., Inc., 230 AD3d at 709 [internal quotation marks omitted]).

Here, the defendants demonstrated that, from October 2018 through July 2019, the plaintiffs did not comply with the defendants’ discovery demands, object to them, or seek to be relieved from the obligation to comply with them (see Follors v TI Ozone Park Stor., LLC, 209 AD3d 843, 845). While the plaintiffs contend in a conclusory manner that their failure to comply with the defendants’ discovery demands was not willful or contumacious, they have not offered any explanation as to why they did not comply with or respond to the defendants’ discovery demands (see id.).”

Ginsburg & Misk LLP v Eshaghpour 2025 NY Slip Op 32419(U) July 9, 2025 Supreme Court, New York County Docket Number: Index No. 161655/2024 Judge: Mary V. Rosado discusses what showing is necessary to demonstrate that settlement of the underlying case was “effectively compelled” by mistakes of counsel.

“From 2019 until July 2024, Plaintiff represented 245-02 Owner in a prior real estate dispute captioned 245-02 Owner LLC v. CVS Albany L.L.C., Index No. 719630/2018 (the “Underlying Action”).1 The Underlying Action proceeded to trial on June 24, 2024, and settled on July 16, 2024 at the close of 245-02 Owner’s case in chief. Plaintiff alleges that Defendants failed to pay $114,190.00 in legal fees and $60,089.86 for expert witness fees, and now sues to recover those fees. In tum, Defendants assert a counterclaim for legal malpractice, alleging they were forced into a less favorable settlement due to Plaintiffs malpractice. Specifically, Defendants allege Plaintiff failed to prepare witnesses for trial, failed to retain and identify experts before trial, failed to obtain certain records for use at trial, failed to advise of the items of proof required to prove damages at trial, and failed to “ensure the matter was assigned to the commercial division.” Plaintiff moves to dismiss the counterclaim pursuant to CPLR 3 211 (a)( 1) and ( a )(7), which Defendants oppose.”

“Defendants’ allegations oflegal malpractice grounded in the failure to have the Underlying Action assigned to the Commercial Division arc dismissed. The NYSCEF docket in the Underlying Action shows Plaintiff was not the attorney of record who filed the request for judicial intervention, which would have requested assignment to the Commercial Division. Plaintiff assumed representation after there had already been motion practice on a preliminary injunction, and preliminary and compliance conferences. Plaintiff cannot be held responsible for the case not being assigned to the Commercial Division. Nor is there any support for the claim that an attorneys’ failure to have a commercial lease dispute referred to the Commercial Division constitutes malpractice. Nor are there any damages arising from the case proceeding in a General IAS part as opposed to the Commercial Division. Therefore, the allegations of malpractice based on the failure to have the Underlying Action assigned to the Commercial Division are dismissed. C. Failure to Retain & Identify Experts Prior to Trial, Failure to Obtain Documents, and Failure to Prepare Witnesses Plaintiffs motion to dismiss Defendants’ allegations of malpractice grounded in Plaintiff’s alleged failure to (1) adequately retain and identify experts prior to trial; (2) to obtain certain documents, and (3) to prepare witnesses for trial is denied. Plaintiff’s two arguments for dismissal arc: (1) that Defendants voluntarily entered a settlement of the Underlying Action, and (2) Defendants’ malpractice claim is a non-actionable disagreement with Plaintiff’s legal strategy. As to Plaintiff’s first argument, it is well established that “a claim for legal malpractice is viable, despite a settlement of the underlying action, if it is alleged that settlement of the action was compelled by the mistakes of counsel” (Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435,435 [1st Dept 2011] quoting Bernstein v Oppenheim & Co., P.C., 160 AD2d 428,430 [1990]). The record establishes that a motion for summary judgment filed by Plaintiff on behalf of Defendant was denied at least in part due to Plaintiffs failure to authenticate properly certain exhibits in support of the motion for summary judgment. Moreover, the trial court in the Underlying Action issued an order precluding Glenn Adams (“Mr. Adams”), a general contractor retained by Plaintiff to opine on 245-02 Owner’s damages, from testifying based on insufficient pre-trial disclosures. The trial court also limited the testimony of Stephanie Nussbaum, a liability expert retained by Plaintiff. Finally, accepting the facts alleged as true, Plaintiff failed to subpoena Department of Building Records, resulting in certain records in support of 245-02 Owner’s case being deemed inadmissible. According to the uncontroverted affidavit of Mr. Eshaghpour, Plaintiff failed to prepare either himself or his expert, Ms. Nussbaum, resulting in muddled testimony and damaging the presentation of 245-02 Owner’s case. At the motion to dismiss stage, where the Court is obliged to accept the allegations as true, there is a sufficient showing that Plaintiffs alleged mistakes may have compelled Defendants to accept a less favorable settlement. Likewise, Defendants’ second argument, which claims the malpractice counterclaim is simply a disagreement with Plaintiffs reasonable legal strategy, does not require dismissal at the pleading stage (see Springs v L&D Law P.C., 234 AD3d 422, 424 [1st Dept 2025]). At this juncture, without a more complete record, the Court cannot find as a matter of law that Plaintiffs alleged failure to advise Defendants to compile certain pertinent documents in their possession, failure to subpoena certain Department of Buildings Records and failure to sufficiently make certain pre-trial disclosures was a reasonable trial strategy (see, e.g. Macquarie Capital (USA) Inc. v Morrison & Foerster LLP, 157 AD3d 456, 456-57 [1st Dept 2018]; Escape Airports (USA), Inc.v Kent, Beatty & Gordon, LLP, 79 AD3d 437,439 [1st Dept 2010] [counsel cannot shift to client legal responsibility for which it was hired due to counsel’s superior knowledge]). Simply put, given the legal standard on a motion to dismiss, and given the lack of documentary evidence refuting Defendants’ allegations, the Court denies Plaintiffs motion to dismiss the counterclaim alleging legal malpractice. The motion is granted solely to the extent that allegations of malpractice arising from a failure to have the Underlying Action assigned to the Commercial Division are dismissed.”

Medley Mgt., IncLowenstein Sandler, LLP 2025 NY Slip Op 32436(U) July 6, 2025 Supreme Court, New York County Docket Number: Index No. 651987/2022 Judge: Joel M. Cohen is a thoughtfully written grant of summary judgment in a legal malpractice case. Here is the intro:

“At a high level, this case involves a financially troubled client that had to navigate the notoriously complex and contentious process of federal bankruptcy. The push and pull between negotiating with creditors and threatening to bypass them, all while under the glare of the bankruptcy court, involves countless difficult judgment calls. In this case, it was unsuccessful.
Having carefully reviewed the record, the Court finds that Plaintiff fails to raise a genuine issue of fact either that counsel’s judgments were negligent or that but for counsel’s actions this troubled company would have made it through bankruptcy intact. Instead, the summary judgment record reveals this case to be an attempt to shift the financial cost of the troubled company’s failed business from its owners to its lawyers. Indeed, much of Plaintiff’s purported evidentiary record consists of self-serving testimony of its principals (who only now, well after the fact and when it cannot actually impact them, profess willingness to have contributed additional funds to prop up the company during the bankruptcy) that is at odds with the contemporaneous documentary evidence.

Moreover, in opposing summary judgment Plaintiff has also dramatically veered from the
factual narrative of the complaint – in which it argued, among other things, that Defendants’
proposed bankruptcy plan “could not be confirmed” – to now argue that the plan would have
been confirmed if Defendants had advised and acted differently. A plaintiff “cannot defeat
[summary judgment] by contradicting the allegations of its own pleadings” (Syncora Guarantee
Inc v JP Morgan Sec, 110 AD3d 87, 94 [1st Dept 2013]).”

“Under CPLR 3212, summary judgment is appropriate when a party establishes with evidence “that there is no material issue of fact to be tried, and that judgment may be directed as a matter of law” (Brill v City of New York, 2 NY3d 648, 651 [2004]). If the moving party crosses that threshold, the party opposing the motion “must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his
claim or must demonstrate acceptable excuse for his failure to meet the requirement of tender in admissible form; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
The elements of a legal malpractice claim are: (1) attorney negligence; (2) proximate causation; and (3) damages (Russo v Rozenholc, 130 AD3d 492, 497 [1st Dept 2015]). “An attorney moving for summary judgment dismissing a legal malpractice claim has the burden of establishing, through the submission of proof in evidentiary form, that the plaintiff is unable to prove at least one of the essential elements of the cause of action” (Ali v Fink, 67 AD3d 935, 936 [2d Dept 2009]).

Here, based on the summary judgment record, and giving Plaintiff the benefit of reasonable inferences in its favor, and despite very creative efforts by Plaintiff’s counsel to flood the zone with potential areas of dispute, Plaintiff’s claims fail on all three elements.

“A. Negligence
Attorney negligence is established by showing that an attorney “failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession” (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 115 AD3d 228, 236 [1st Dept 2014], affd as mod, 26 NY3d 40 [2015]).
However, “an attorney is not held to the rule of infallibility and is not liable for an honest mistake of judgment where the proper course is open to reasonable doubt. Thus, ‘selection of one among several reasonable courses of action does not constitute malpractice’. Absent such ‘reasonable’ courses of conduct found as a matter of law, a determination that a course of conduct constitutes malpractice requires findings of fact. The general rule is that an attorney may be held liable for ignorance of the rules of practice, failure to comply with conditions precedent
to suit, or for his neglect to prosecute or defend an action” (Bernstein v Oppenheim & Co., P.C.,
160 AD2d 428, 430 [1st Dept 1990] [internal citations omitted]). In response, Plaintiff argues that this “professional judgment rule” does not apply because Defendants violated bright-line rules: section 1129(b)(2)(B) (absolute priority rule) of the US Bankruptcy Code, section 327(a) (representing an interest adverse to the estate), and the U.S. Supreme Court’s rule in Bank of Am. Natl. Trust & Sav. Assn. v 203 N. Lasalle St. Partnership (526 US 434, 437 [1999]) (new value cannot be exclusive to pre-petition equity).

These arguments turn on a dispute as to whether Defendants were instructed to pursue only a consensual reorganization under section 1129(a), instead of a cramdown under section 1129(b). Plaintiffs argue that they instructed Defendants to file a plan that could be crammed down under section 1129(b) and to file a plan with cash contributions to satisfy the new value exception to the absolute priority rule. However, Plaintiff has not cited any deposition testimony or contemporaneous communications identifying who, what, when, where, or how such a
definitive instruction to pursue a cramdown was given to Defendants, let alone from the Subcommittee. At most, the testimony MDLY cites reflects a view that the Plan was structured so it potentially could be confirmed over creditor objections if the Debtor later decided to shift to a cramdown approach (B. Taube Dep. At 53:9 – 54:14, 55:4-18, 208:22 – 209:6; S. Taube Dep. at 118:17 – 121:11, 114:15 – 118:4; Fredericks Dep. at 339:25 –340:25, 540:10-17, 723:16-21).”

In Matter of Blyer 2025 NY Slip Op 04005 Decided on July 2, 2025 Appellate Division, Second Department
Per Curiam., the attorney did a lot of things commented on by the Appellate Division and the Referee. Amongst them was the failure to advise the client of a potential malpractice claim.

“The amended petition contains seven charges of professional misconduct concerning the respondent’s conduct during his law firm’s representation of Kathy Chiriboga in a personal injury action. Charges one through seven are based on the facts below:

The respondent is a partner at the law firm Blyer & Kurland, P.C. (hereinafter the law firm). In February 2018, the law firm represented Chiriboga in connection with a slip-and-fall accident that occurred on February 10, 2017. The law firm was to commence an action on Chiriboga’s behalf. The statute of limitations for the cause of action expired on February 10, 2020, and the law firm failed to commence an action before the statute of limitations expired.

On or about February 18, 2020, the respondent filed a summons and complaint in Supreme Court, Queens County, titled Chiriboga v Chopenko (Index No. 702814/2020). In the complaint, the respondent asserted that Chiriboga’s accident had occurred on February 20, 2017, rather than February 10, 2017. The respondent also signed the name of another attorney, Andrew Staulcup, to the summons, complaint, and the attorney’s verification without Staulcup’s knowledge or consent. On or about June 13, 2020, the respondent served the complaint on the defendant. On or about January 27, 2021, the respondent executed a stipulation of discontinuance with prejudice in the action without Chiriboga’s consent. The respondent did not notify Chiriboga until on or about February 7, 2022, that her case had been discontinued with prejudice. As of March 31, 2022, the respondent had not informed Chiriboga that she may have a legal malpractice claim against the law firm.

Based on the foregoing, charge one, as amended, alleges that the respondent neglected a legal matter entrusted to him, in violation of rule 1.3(b) of the Rules of Professional Conduct (22 NYCRR 1200.0). Charge two alleges that the respondent failed to reasonably consult with his client about the means by which the client’s objectives were to be accomplished, in violation of rule 1.4(a)(2) of the Rules of Professional Conduct. Charge three alleges that the respondent engaged in conduct involving misrepresentation, in violation of rule 8.4(c) of the Rules of Professional Conduct. Charge four, as amended, and charge six allege that the respondent failed to promptly inform his client of material developments in the client’s legal matter, in violation of rule 1.4(a)(1)(iii) of the Rules of Professional Conduct. Specifically, charge four pertains to the respondent’s execution of the stipulation of discontinuance with prejudice without the client’s consent, and charge six pertains to the respondent’s failure to advise his client that she may have a legal malpractice claim against the law firm. Charge five alleges that the respondent failed to keep his client reasonably informed about the status of her legal matter, in violation of rule 1.4(a)(3) of the Rules of Professional Conduct. Charge seven alleges that the respondent engaged in conduct adversely reflecting on his fitness as a lawyer, in violation of rule 8.4(h) of the Rules of Professional Conduct.”

“In view of the evidence adduced at the hearing and the respondent’s admissions, we find that the Special Referee properly sustained all seven charges in the amended petition. Accordingly, the Grievance Committee’s motion to confirm the Special Referee’s report is granted. In determining an appropriate measure of discipline, we have considered the respondent’s prior [*4]
disciplinary history for similar misconduct, his lack of remorse, the injury to the client, and the mitigation provided by the respondent.”