Salamone v Deily & Glastetter, LLP 2025 NY Slip Op 04846 Decided on September 04, 2025 Appellate Division, First Department demonstrates how clever loan scrivining can run afoul of usury laws and backfire.

“Order, Supreme Court, New York County (Shlomo Hagler, J.), entered May 8, 2024, which granted defendants’ motion to dismiss the complaint, unanimously reversed, on the law, without costs, and the motion denied.

In his complaint, plaintiff alleges that defendants “breached their duties of care, skill, and diligence” by drafting and urging plaintiff to execute a forbearance agreement that included a provision for a “forbearance fee” that was unenforceable and made the forbearance agreement “facially usurious.” As set out more fully below, the complaint adequately pleads a cause of action for malpractice against defendants and accordingly, the motion court erred in granting the motion to dismiss.”

“On November 26, 2022, plaintiff commenced this action against D&G and Hoffman seeking damages for legal malpractice. The complaint alleges that, had defendants not drafted a facially usurious forbearance agreement and counseled plaintiff to sign it, he would have “enforced his rights under the Demand Note, and separately documented the [prior] agreement [by discussions and communications with the nonparties] to compensate Plaintiff for his lost opportunity to immediately repurchase the Apple stock he liquidated to fund the 30-day loan. Plaintiff would also not have incurred considerable legal fees expended in exhausting all possible procedural avenues to avoid, minimize, or reduce the damage caused by the usurious Forbearance Agreement that Hoffman drafted, much of which was not reimbursed to Plaintiff.”

Defendants moved to dismiss. The motion court granted dismissal for failure to state a cause of action (CPLR 3211[a][7]).

Defendants state two reasons why the motion court properly dismissed the complaint. First, defendants argue that defendants could not have committed malpractice given this Court’s previous finding that plaintiff adequately alleged a “special relationship” with the nonparties to support an estoppel defense in the earlier action. Second, defendants view plaintiff’s claim for damages as “speculative.” We reject both arguments.

Defendants’ inclusion in the forbearance agreement of an unenforceable provision that made the agreement facially usurious resulted in additional legal fees for plaintiff, a substantial portion of which have not been reimbursed. The fact that this Court previously found that plaintiff adequately demonstrated in the earlier appeal that he had a “special relationship” sufficient to make out an estoppel claim against the nonparties in the earlier action does not establish that D&G selected a reasonable strategy to accomplish plaintiff’s goals (see Dweck Law Firm v Mann, 283 AD2d 292, 293 [1st Dept 2001] [“Attorneys may select among reasonable courses of action in prosecuting their clients’ cases. . . . a purported malpractice claim that amounts only to a client’s criticism of counsel’s strategy may be dismissed”]). Indeed, the fact that defendants failed to raise the estoppel argument until after the case was before this Court strongly suggests that this was not D&G’s strategy at all, but a belated attempt to cover up their errors. Moreover, whether it was a strategy or not, the estoppel claim could not and did not result in plaintiff recouping his lost opportunity costs. Furthermore, for the reasons discussed above, contrary to defendant’s claim, this Court’s prior order does not permit plaintiff to seek the $300,000 forbearance fee under an estoppel theory.

Plaintiff in a malpractice action must ultimately prove that the attorney “failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). “An attorney is obligated to know the law relating to the matter for which he/she is representing a client and it is the attorney’s duty, if he has not knowledge of the statutes, to inform himself, for, like any artisan, by undertaking the work, he represents that he is capable of performing it in a skillful manner” (Fielding v Kupferman, 65 AD3d 437, 440 [1st Dept 2009] [internal quotation marks omitted]). On this record, we find that D&G did not meet their obligation to exercise ordinary skill in representing plaintiff in this transaction by drafting an unenforceable provision that made the forbearance agreement facially usurious.

We also reject the argument that plaintiff’s damages claim is “speculative.” “To survive a pre-answer motion to dismiss pursuant to CPLR 3211(a)(7), a pleading need only state allegations from which damages attributable to the defendant’s conduct may reasonably be inferred” (Fielding, 65 AD3d at 442 [internal quotation marks omitted]). Here, plaintiff seeks damages to reimburse him for the counsel fees he incurred in attempting to “avoid, minimize or reduce the damage caused” by the facially usurious forbearance agreement defendants drafted and advised him to sign (see Rudolf, 8 NY3d at 443). Accordingly, plaintiff’s damages attributable to defendants’ conduct are not speculative and can be easily inferred from the complaint.”

In Prospect Capital Corp. v Morgan Lewis & Bockius LLP 2025 NY Slip Op 32996(U) July 24, 2025 Supreme Court, New York County Docket Number: Index No. 653941/2022 Judge Margaret A. Chan gives a primer on “at issue” privilege issues, how emails are currently handled under CPLR 2104 and how complicated discovery of written documents can be.

“The parties are now in discovery. In mid-2024, defendants filed a Rule 14 letter requesting an order compelling Prospect to produce categories 2·7, 9·10, 12· 22, 26, and 28·30 from Prospect’s categorical privilege log, each of which related to advice to or from Prospect’s attorneys (NYSCEF # 122, Defs’ Rule 14 Letter). Defendants argued that Prospect had waived attorney-client privilege over the relevant categories by placing them “at issue” and under the concurrent representation doctrine, and that the majority of categories had to be produced pursuant to an earlier “stipulation” between the parties (id at 2 of the letter). The “stipulation” in question consisted of an oral agreement between counsel during a February 1, 2024 meet and confer and which was reduced to writing in an email from defendants to Prospect on February 7, 2024 (Email Stipulation) (see NYSCEF # 144, Email Stipulation). Prospect did not respond to that email nor sign any formal stipulation.

Prospect objected, almost exclusively arguing that it did not place the relevant documents at issue (NYSCEF # 123, Prospect Rule 14 Letter, at 1-3). Prospect did not clearly or obviously make any arguments regarding the email stipulation raised by defendants (see jd). The court held a Rule 14 conference on November 20, 2024, and issued an order later that day ruling in favor of Prospect on some categories and defendants on others (the Rule 14 Order) (NYSCEF # 139, Rule 14 Order). Specifically, the Rule 14 Order determined that categories 2 through 7, 9, 10, 12, and 14 were not subject to “at issue” waiver and/or were not relevant, but nevertheless had to be produced pursuant to the Email Stipulation (jd at 2-3). The Rule 14 Order also determined that categories 15, 19, and 20 had to be produced pursuant to “at issue” waiver, but with specific limitations Ud.). Finally, the Rule 14 Order denied production of categories 13, 16-18, 21, 22, 26, and 28-30 because these categories fell under neither category Ud. at 3-4). During the November 20 conference, Prospect asked the right to appeal, hence, the parties were granted leave to bring this motion and cross-motion and were advised by this court that the decision would be consistent with the conference order Ud at 1). Prospect filed this motion, and then defendants cross-moved for clarification the Rule 14 Order’s findings that certain categories were irrelevant was not an evidentiary ruling. Prospect argues for the first time in its motion that the Email Stipulation is unenforceable pursuant to CPLR 2104 (NYSCEF # 141, Prospect’s Br., at 9-12). Prospect further argues that even if the requirements of CPLR 2104 had been met, the terms of the Email Stipulation are ambiguous given that the parties appear to have different understandings of what was agreed to. Prospect additionally argues that categories 15, 19, and 20 are not “at issue” in large part because they do not relate to advice about the turnover provision. CPLR 3101(a) provides that “[t]here shall be full disclosure of all evidence material and necessary in the prosecution or defense of an action.” To be considered “material and necessary,” the information sought must “bearD on the controversy which will assist preparation for trial by sharpening the issues and reducing delay and prolixity” (Kapon v. Koch, 23 NY3d 32, 38 [2014], quoting Allen v CrowellColljer Puhl. Co., 21 NY2d 403, 406 [1968]). Disclosure is thus not limited to “evidence directly related to the issues in the pleadings” (Allen, 21 NY2d at 408). At the same time, “unlimited disclosure is not permitted” (Harrjs v Pathmark, Inc., 48 AD3d 631, 632 [2d Dept 2008]), and “under [New York] … discovery statutes and case law, … the need for discovery must be weighed against any special burden to be borne by the opposing part” (Kavanagh v Ogden AlHed Mmntenance Corp., 92 NY2d 952, 954 [1998Hcitations omitted]; see also Preamble to Rule 11 of the Commercial Division [“It is important that counsel’s discovery requests … are both proportional and reasonable in light of the complexity of the case and the amount of proof that is required for the cause of action”]).”

“Regarding categories 2 through 7, 9, 10, 12, and 14, the court now reverses course and denies access to these categories of documents. CPLR 2104 states that “[a]n agreement between parties or their attorneys relating to any matter in an action … is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered” (CPLR 2104). Regarding the “subscribed” requirement, the First Department has held in the context of settlement stipulations that a party “subscribes” to an email stipulation where the party’s attorney “hits ‘send’ with the intent of relaying a settlement offer or acceptance, and their email account is identified in some way as their own” (Phila. Ins. Indem. Co. v Kendall, 197 AD3d 75, 80 [1st Dept 2021]). The Third Department also recently held that silence in the face of a stipulation does not amount to assent to its terms absent a “duty to speak” (Matter of Estate of Eckert, 217 AD3d 1151, 1153 [3d Dept 2023], lv to appeal dismissed, 40 NY3d 1024 [2023], quoting Matter of Albrecht Chem. Co. /Anderson Trading Corp.}, 298 NY 437, 440 [1949]). Applying that logic here, an attorney may accept other types of stipulations by sending a response email, but does not accept by failing to respond. Here, Prospect did not send a response email accepting the terms of the stipulation as laid out in defendants’ February 7, 2024 Email Stipulation. While it is clear the parties had a conversation and even came to some oral agreement that defendants believed was fully reduced to writing, Prospect’s failure to respond is a failure to subscribe to the terms as specifically forth in the Email Stipulation. Therefore, the stipulation is unenforceable pursuant to CPLR 2104. By extension, the cross-motion for resettlement is denied as moot.”

“

In Bethelite Community Baptist Church, Inc. v Shiryak, Bowman, Anderson, Gill & Kadochnikov, LLP 2025 NY Slip Op 32826(U) July 22, 2025 Supreme Court, New York County Docket Number: Index No. 160036/2022 Judge: Paul A. Goetz. Plaintiff threads the eye of the needle and obtains partial summary judgment on liability. Here is how it happened:

“Due to a dispute with the City, the church stopped paying its water and sewer charges in the early 1990s (id. ¶ 7). On June 17, 2002, the City placed a lien on the premises for $100,549.54 (id. ¶ 8; NYSCEF Doc No 80). Three days later, the City assigned the lien to NYCTL 2002-A Trust and Bank of New York (the lienholder), as collateral agent and custodian (id. ¶ 9; NYSCEF Doc Nos 81, 82).”

“On September 17, 2009, the lienholder commenced an action against the church to foreclose on the lien (id. ¶ 12; NYCTL 1998-2 Trust and the Bank of Mellon v Bethelite Community Baptist Church, Index No 113197/2009). The church had not yet appeared in the matter, however, on May 6, 2015, the referee issued a report finding that the church owed $1,028,939.34 on the lien; notably, the referee calculated this total by applying an interest rate of 18% (id. ¶ 14; NYSCEF Doc No 86 [the 2015 report]).”

“Plaintiff argues that defendants breached their duty of care in filing the SBAGK opposition without objecting to the 18% interest rate employed by the referee, and but for this failure, the court would have determined that plaintiff owed 7-9% interest, rather than 18%; and this caused an actual and ascertainable loss, as the amount owed can be recalculated with the lower interest rate applied (NYSCEF Doc No 73, pp. 9-19). Defendants argue that the 18% interest rate was correctly applied to the tax lien; plaintiff’s financial liability stems from its own noncompliance with City directives to pay its outstanding water and sewer charges and its failure to mitigate damages; and that Anderson exercised “reasonable professional judgment in declining to advance the meritless argument that Bethelite was entitled to a reduced interest rate” (NYSCEF Doc No 128, pp. 15-24). Initially, while defendants argue that “the courts repeatedly upheld the [18%] interest rate during the underlying litigation” and that “Plaintiff’s claims were consistently rejected on appeal” (NYSCEF Doc No 128), this mischaracterizes the history of the underlying case. In the June 18, 2019 order, the court specifically declined to confirm the 2015 report because plaintiff had not yet appeared in the action and directed recalculation of the interest rate (NYSCEF Doc No 96). In the January 29, 2020 order, the court confirmed the 2019 report because defendants “made no substantive argument regarding the referee’s calculations” (NYSCEF Doc No 117). The First Department affirmed, specifically noting that defendants “did not argue that the interest rate on the tax lien should be nine percent per annum” (NYSCEF Doc No 118). Finally, the trial court’s February 4, 2022 order denied the church’s motion to vacate because the church “failed to demonstrate the existence of ‘new evidence’ that would change the result reached and that it could not have been discovered with due diligence” (NYSCEF Doc No 119). Thus, the issue of the interest rate was never fully litigated and considered on the merits.”

“In the context of a motion for summary judgment, a movant’s “burden of proof in a legal malpractice action is a heavy one” because they “must prove [] the hypothetical outcome of the underlying litigation and, then, the attorney’s liability for malpractice in connection with that litigation” (Lindenman v Kreitzer, 7 AD3d 30, 34 [1st Dept 2004]). Plaintiff has met that heavy burden here. Had defendants raised the argument that plaintiff did not have an annual tax bill due to its tax-exempt status, the court would have determined that the lower interest rate applied. Defendants were negligent in failing to raise this argument, and this negligence proximately caused the entry of a significantly larger judgment amount against plaintiff.”

“Based on the foregoing, it is RECEIVED NYSCEF: 07/22/2025 CONCLUSION ORDERED that plaintiff’s motion for summary judgment on its sole cause of action for legal malpractice is granted on liability3, and defendant’s cross-motion is denied.”

In one stunning paragraph, in Campbell v Law Off. of Solomon Rosengarten 2025 NY Slip Op 04700 Decided on August 20, 2025 the Appellate Division, Second Department illustrates the oft-unheard of exception to the standard commencement date for the statute of limitations in legal malpractice.

The paragraph is highlighted here: “”To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages” (Katsoris v Bodnar & Milone, [*2]LLP, 186 AD3d 1504, 1505 [internal quotation marks omitted]). A cause of action to recover damages for legal malpractice must be commenced within three years from the time of accrual (see CPLR 203[a]; 214[6]). “A cause of action to recover damages for legal malpractice accrues when the malpractice is committed, not when it is discovered” (Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 735; see McCoy v Feinman, 99 NY2d 295, 301). “‘A legal malpractice claim accrues when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court'” (Lee v Leeds, Morelli & Brown, P.C., 233 AD3d 1072, 1077, quoting McCoy v Feinman, 99 NY2d at 301; see Farage v Ehrenberg, 124 AD3d 159, 163).

Here is the decision in fuller context:

“ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the cause of action alleging legal malpractice as time-barred is denied.

The defendants, Solomon Rosengarten and his law firm, represented the plaintiff, Patrick A. Campbell, in a personal injury action that was commenced in December 1994 in the Supreme Court, Kings County (hereinafter the personal injury action). In September 1995, the personal injury action was transferred to the Civil Court, Kings County, but there were no further proceedings in that court on the action until after 2017. In December 1995, Rosengarten appeared at two depositions on behalf of Campbell in the personal injury action.

In 2016, Campbell executed a consent to change attorneys form and filed it in the Supreme Court, Kings County. Campbell then moved in the Supreme Court to restore the action to the active calendar, for summary judgment on the issue of liability, and for leave to file a note of issue. In an order dated November 22, 2017, the motion was denied without prejudice to refile in the Civil Court, Kings County. Campbell then moved in the Civil Court to restore the action to the active calendar and for summary judgment on the issue of liability. In an order dated December 10, 2019, the Civil Court denied the motion (hereinafter the Civil Court order).

In January 2020, Campbell commenced this action, inter alia, to recover damages for legal malpractice. The defendants moved, among other things, pursuant to CPLR 3211(a) to dismiss the cause of action alleging legal malpractice as time-barred. In an order dated May 25, 2023, the Supreme Court, inter alia, granted that branch of the motion. Campbell appeals.

“To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages” (Katsoris v Bodnar & Milone, [*2]LLP, 186 AD3d 1504, 1505 [internal quotation marks omitted]). A cause of action to recover damages for legal malpractice must be commenced within three years from the time of accrual (see CPLR 203[a]; 214[6]). “A cause of action to recover damages for legal malpractice accrues when the malpractice is committed, not when it is discovered” (Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 735; see McCoy v Feinman, 99 NY2d 295, 301). “‘A legal malpractice claim accrues when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court'” (Lee v Leeds, Morelli & Brown, P.C., 233 AD3d 1072, 1077, quoting McCoy v Feinman, 99 NY2d at 301; see Farage v Ehrenberg, 124 AD3d 159, 163).

Here, the cause of action alleging legal malpractice was premised on the defendants’ neglect of the personal injury action. As pre-note of issue delay of a pending action is not necessarily injurious (see generally Lopez v Imperial Delivery Serv., 282 AD2d 190, 191), the actionable injury in this case did not occur until the issuance of the Civil Court order, which prevented the plaintiff from further prosecuting the personal injury action (see Golden Jubilee Realty, LLC v Castro, 196 AD3d 680, 683; Frederick v Meighan, 75 AD3d 528, 532; see also Flintlock Constr. Servs., LLC v Rubin, Fiorella & Friedman, LLP, 188 AD3d 530, 531). Therefore, the cause of action alleging legal malpractice was timely, since it was asserted within three years of the issuance of the Civil Court order.”

Dodson v Adorama Camera Inc. 2025 NY Slip Op 51258(U) Decided on July 10, 2025
Supreme Court, New York County Lebovits, J. holds that there is no Judiciary Law 487 violation in opposing this particular action seeking to domesticate a valid sister-state judgment.

“This is an action to domesticate a South Carolina judgment obtained by plaintiff, Robert Dodson, against defendants, Adorama Camera Inc. and Adorama Inc. Plaintiff now moves under CPLR 3212 for summary judgment. The motion is granted.

Plaintiff’s motion papers establish, prima facie, that plaintiff obtained a valid default judgment in South Carolina against defendants. And “[a]bsent a jurisdictional challenge, a final judgment entered upon the defendant’s default in appearing in an action is conclusive and entitled to be given full faith and credit in the courts of this State.” (GNOC Corp. v Cappelletti, 208 AD2d 498, 498 [2d Dept 1994].) However, when, as here, defendants challenge whether the rendering jurisdiction had personal jurisdiction over them, the New York courts must determine whether jurisdiction existed. (TCA Global Credit Master Fund, L.P. v Puresafe Water Sys., Inc., 151 AD3d [*2]1098, 1099 [2d Dept 2017].)

The difficulty for defendants is that they already raised this same jurisdictional challenge in South Carolina—and lost. In particular, defendants’ position here is that the South Carolina courts lacked personal jurisdiction over them due to improper service. (See NYSCEF No. 15 at 3-4.) Defendants raised this same contention before the South Carolina courts in moving to vacate the default judgment that plaintiff had obtained against them. (See NYSCEF No. 20 at 3-4.) It is undisputed that the court of first instance in South Carolina considered defendants’ jurisdictional contention and, after hearing oral argument, rejected it. (See NYSCEF No. 22 at 1.) It is also undisputed that the decision issued by the court to explain its determination squarely rejected defendants’ challenge to the validity of service.^[FN1] (See NYSCEF No. 23 at 3-4.)

Given the South Carolina courts’ rejection, as a matter of South Carolina law, of defendants’ challenge to service, this court is unpersuaded that defendants have raised a material dispute of fact about whether personal jurisdiction over them existed in South Carolina. Plaintiff’s motion for summary judgment is granted.^[FN2] At the same time, plaintiff has not shown that defendants’ opposition to the current motion (or defendants’ characterization of the South Carolina decision denying vacatur) was frivolous or rested on sanctionable misrepresentations. Thus, to the extent that plaintiff seeks monetary sanctions against defendants or their counsel under 22 NYCRR 130-1.1 or Judiciary Law § 487, that request is denied.”

Stinnett v Derek Smith Law Group, PLLC 2025 NY Slip Op 04677 Decided on August 13, 2025 Appellate Division, Second Department is a decision that doesn’t give a lot of facts. What were the deficient allegations of potential success on the employment discrimination case? What were the allegations of that which was not done? We don’t know from the AD2. What we do know is that the LM claim was dismissed for “conclusory allegations of damages and the Breach of Contract was dismissed as duplicative.

“Here, the cause of action to recover damages for legal malpractice failed to set forth facts sufficient to allege that the defendants’ alleged negligence proximately caused the plaintiff to sustain actual and ascertainable damages (see Buchanan v Law Offs. of Sheldon E. Green, P.C., 215 AD3d 793, 795; Joseph v Fensterman, 204 AD3d 766, 769-771). The plaintiff’s allegations that but for the defendants’ alleged negligent representation her claims would have been viable and she would have received a more favorable outcome in the underlying federal actions were conclusory and speculative (see Alexim Holdings, LLC v McAuliffe, 221 AD3d 641, 644; Mid City Elec. Corp. v Peckar & Abramson, 214 AD3d 646, 649). Accordingly, the Supreme Court properly determined that dismissal of the cause of action alleging legal malpractice insofar as asserted against the defendants was warranted pursuant to CPLR 3211(a)(7).

As a general rule, where a cause of action alleging breach of contract arises from the same facts as a cause of action to recover damages for legal malpractice and does not allege distinct damages, the cause of action alleging breach of contract must be dismissed as duplicative of the cause of action to recover damages for legal malpractice (see Postiglione v Castro, 119 AD3d 920, 922; Town of N. Hempstead v Winston & Strawn, LLP, 28 AD3d 746, 749). Here, the cause of action alleging breach of contract was duplicative of the cause of action to recover damages for legal malpractice (see Dabiri v Porter, 227 AD3d 860, 861; Lam v Weiss, 219 AD3d 713, 718). The allegations supporting the cause of action alleging breach of contract were essentially identical to those supporting the cause of action to recover damages for legal malpractice and did not allege a distinct injury or distinct damages. Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging breach of contract insofar as asserted against them.

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.”