Meirowitz v Greenberg 2025 NY Slip Op 32124(U) June 13, 2025 Supreme Court, New York County Docket Number: Index No. 659363/2024 Judge: Paul A. Goetz demonstrates the dangers of charging liens, litigation over attorney fees and a subsequent legal malpractice case.

“In this legal malpractice action defendants, Segal & Greenberg LLP, Margery Greenberg,
and Sara Hiltzik1 (collectively “S&G Defendants”) move (MS #2), and defendant Dorf Nelson &
Zauderer, separately moves (MS #3) to dismiss the complaint as against them.
Plaintiff alleges 302 causes of action against defendants many of which are not
cognizable causes of action in New York, including the following:

SIXTH CAUSE OF ACTION – Failure to Inform the Court of Critical Information

FIRST CAUSE OF ACTION – Malfeasance

SECOND CAUSE OF ACTION – Nonfeasance

THIRD CAUSE OF ACTION – Misfeasance

FOURTH CAUSE OF ACTION – Lack of Transparency

FIFTH CAUSE OF ACTION – Failure to Inform the Court of Due Process Violations

7. SEVENTH CAUSE OF ACTION – Failure to Provide Discovery
8. EIGHTH CAUSE OF ACTION – Failure to Address Frivolous and Procedurally
   Defective Actions
9. NINTH CAUSE OF ACTION – Failure to Inform the Court of Unauthorized Actions of
   the AFC
10. TENTH CAUSE OF ACTION – Failure to Inform the Plaintiff and the Court of Critical
    Findings
11. THIRTEENTH CAUSE OF ACTION – Failure to Address Ex Parte Communication and
    Challenge Improper Compensation Order
12. FIFTEENTH CAUSE OF ACTION – Failure to Inform the Court of My Son’s Suicide
    Attempts and the Impact of the Custody Schedule Change
13. SIXTEENTH CAUSE OF ACTION – Refusal to Follow Client Directives and Failure to
    Inform the Court
14. SEVENTHEENTH [sic.] CAUSE OF ACTION – Failure to Inform Plaintiff of Legal
    Rights and Misrepresentation Regarding Marital Assets
15. EIGHTEENTH CAUSE OF ACTION: Pattern of Failure to Preserve the Record
16. NINETEENTH CASUE [sic.] OF ACTION: Failure to Provide the Complete File, or
    partial file, in a Timely Fashion
17. TWENTYEENTH [sic.] CAUSE OF ACTION: Breach of Attorney-Client Privilege and
    Professional Conduct
18. TWENTY-THIRD CAUSE OF ACTION: Failed to Inform me of both a 1028 and 1028
    Hearing
19. TWENTY FIFTH CASUE [sic.] OF ACTION: Failure to Exercise Reasonable Care in
    Depositions
20. TWENTY SEVENTH CASUE [sic.] OF ACTION: Ineffective Representation
21. TWENTY-EIGHT CASUE [sic.] OF ACTION: Lack of Advocacy
22. TWENTY NINTH CASUE [sic.] OF ACTION: Support of Misleading Article and Quid
    Pro Quo Relationships
23. Cause of Action Number Thirty-Two: Damages and the Broader Scope and Implications
    of Defendant’s Action

It appears that these causes of action are intended to be different allegations of legal
malpractice and will be addressed as such. To succeed on a claim of legal malpractice “plaintiff
must show that: (1) the attorney was negligent; (2) the attorney’s negligence was a proximate
cause of plaintiff’s losses; and (3) plaintiff suffered actual damages” (Springs v L&D Law P.C.,
234 AD3d 422, 423 [1st Dept 2025]).”

“As for the allegations against the S&G Defendants, a claim for legal malpractice is barred
by an “adverse determination in [an allegedly negligent attorney’s] prior action to recover fees
for the rendering of professional services … with regard to the same services” (Kinberg v Garr,
28 AD3d 245, 246 [1st Dept 2006]; John Grace & Co., Inc. v Tunstead, Schechter & Torre, 186
AD2d 15, 20 [1st Dept 1992] “[S]ince the fee claim and the legal malpractice claim arose from
the same transaction, the decision to award fees necessarily included the finding of no
malpractice”]).
Here, by Decision and Order dated March 16, 2023, in the underlying action, the court
granted S&G Defendants’ motion to withdraw, and awarded S&G Defendants a charging lien at
an amount to be determined later (NYSCEF Doc No 24). The hearing was held on April 28,
2023 and plaintiff agreed to a Charging Lien in the amount of $124,100.86 (NYSCEF Doc No 26
at p 5). “Accordingly, plaintiff[‘s] legal malpractice claim[s] based upon the same services at
issue before the fee claim court [are] barred by collateral estoppel and res judicata” (John Grace,
186 AD2d at 20).”

As one starts to read the decision in Follman v Gruber 2025 NY Slip Op 32078(U) June 6, 2025 Supreme Court, Kings County Docket Number: Index No. 508865/2023 Judge: Richard Velasquez one gets the impression that the defendant attorneys have the upper hand. Read on.

“Upon the foregoing papers, in this action by plaintiff Abron N. Follman, as trustee and beneficiary of the Lazar Follman 2011 Family Trust and the Esther Follman 2011 Family Trust (plaintiff), defendant Meltzer, Lippe, Goldstein & Breitstone, LLP (Meltzer Lippe) moves, under motion sequence number one, for an order: ( 1) pursuant to CPLR 3212, granting it summary judgment dismissing plaintiffs complaint in its entirety with prejudice; (2) pursuant to 22 NYCRR 13 0-1.1, awarding it sanctions in the fonn of a money judgment against plaintiff and his counsel Balisok & Kaufman, PLLC, jointly and severally, in an amount equal in value to the time spent by its attorneys addressing the allegedly facially and abjectly frivolous claims asserted by plaintiff against it herein and addressing plaintiffs failure to withdraw those claims when demanded to avoid its incurring of those expenses (with the amount of such fees to be fixed at inquest upon notice to plaintiff and his counsel); and (3) granting such other and further relief as to the court seems just and proper in the circumstances.”

“Plaintiff moves, by order to show cause, under motion sequence number eight, for an order: (1) extending his time to oppose Meltzer Lippe’s motion for summary judgment until all court-ordered discovery has been produced; (2) precluding Meltzer Lippe from testifying or offering any evidence at trial; (3) dismissing with prejudice Meltzer Lippe’s summary judgment motion; (4) striking the answer of Meltzer Lippe, pursuant to Judiciary Law§ 753 and CPLR 3126; (5) granting sanctions for defendants’ frivolous misconduct in this matter pursuant to 22 NYCRR 130-1.1; (6) holding Meltzer Lippe in contempt of a court order to produce discovery pursuant to Judiciary Law § 753; (7) in the alternative, in the event the court declines to strike Meltzer Lippe’s answer, entering into a preliminary conference order establishing a schedule of compliance for Meltzer Lippe with the Notice for Discovery and Inspection of Documents served upon it by him in this action and setting depositions; (8) entering into a preliminary conference order establishing a schedule of compliance for Avraham Meir Follman (Avraham) and Eugene Gruber (Gruber) with the Notice for Discovery and Inspection of Documents served upon them by him in this action and setting depositions; and (9) granting such other and further relief as this court may deem just.”

“Meltzer Lippe is the law firm that prepared the Lazar 2011 Trust, the Esther 2011 Trust, the Lazar 2017 Trust, and the Esther 2017 Trust. Plaintiff alleges that Meltzer Lippe orchestrated the appointment of Gruber as a trustee of the Lazar 2011 Trust and the Esther 2011 Trust, and allegedly coordinated and benefited from the unlawful misappropriation of these trust assets.”

“Plaintiffs sixth cause of action alleges that Meltzer Lippe drafted the Lazar 2011 Trust and the Esther 2011 Trust and thereby had reason to know that Gruber and A vraham were in breach of their fiduciary duty in misappropriating, diverting, and/or converting real property, personal property, and funds that belonged to the Lazar 2011 Trust and the Esther 2011 Trust. It further alleges that Meltzer Lippe knowingly and intentionally aided and abetted Gruber and Avraham commit self-dealing, illegal misappropriation, diversion, and/or conversion of real property, personal property, _and funds that belonged to the Lazar 2011 Trust and the Esther 2011 Trust. Plaintifr s seventh cause of action alleges a claim of attorney malpractice as against Meltzer Lippe. It asserts that Meltzer Lippe had an attorneyclient relationship with the Lazar 2011 Trust and the Esther 2011 Trust and with plaintiff as one of the four trustees and beneficiaries of both trusts, and that Meltzer Lippe failed to , exercise the degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community. It alleges that Meltzer Lippe knowingly and intentionally aided and abetted Gruber and A vraham with committing the self-dealing, illegal misappropriation, diversion, and/or conversion of real property, personal property, and funds that belong to the Lazar 2011 Trust and the Esther 2011 Trust. It further alleges that the Lazar 2011 Trust and the Esther 2011 Trust were damaged in an amount not less .than the value of the property Gruber and Avraham misappropriated, diverted, and/or converted with Meltzer Lippe’s assistance, and seeks damages in the amount of not less than $200,000,000 dollars, and punitive damages of not less than three times compensatory ‘ damages with the exact amount to be determined at trial. On April 24, 2023, Meltzer Lippe filed its answer (NYSCEF Doc No. 5). On May 1, 2023, Meltzer Lippe filed its motion, under motion sequence number one, for summary judgment and sanctions (NYSCEF Doc No. 6).”

“By a decision and order dated July 3, 2024 (NYSCEF Doc No. 179), this court ruled that Meltzer Lippe was required to produce the information requested in request numbers 1-12, 6-19, 23-25, 33, 35, 38-45, 47-49, 56-64, 66, 67-73, 80, and 106 contained in NYSCEF Doc No. 71 within 30 days from the date of this order (i.e., by August 3, 2024), as previously set forth in Justice Ruchelsman’s November 20, 2023 order. The court specifically listed each of these requests. The court further ordered that plaintiff shall file opposition to the summary judgment motion on or before August 27, 2024, and Meltzer Lippe shall file its reply on or before September 10, 2024, and, in the event Meltzer Lippe fails to provide all discovery in this order, Meltzer Lippe shall automatically be precluded from offering any evidence or testimony at trial. ,”

“With respect to plaintiffs claim for legal malpractice, Meltzer Lippe made numerous representations to plaintiff that the decanting from the 2011 Trusts into the 2017 Trusts did not contradict Lazar’s express desire to leave his children equal shares of the -. property owned by the 2011 Trusts. Due to the lack of access to the 2017 Trusts documents, plaintiff was totally reliant on assurances made by Meltzer Lippe to him and Lazar that the 2017 Trusts and the sale of the properties would allow for equal inheritances. Meltzer Lippe failed to demonstrate that plaintiff knew or should have known that Meltzer Lippe had stopped representing him in the matter more than three years before this action was commenced. Meltzer Lippe’s ongoing representation of Avraham, as trustee of the 2011 Trusts in 2022, also results from Meltzer Lippe’s refusal to disclose the specific legal matter from which the legal malpractice arose. In any event, plaintiff has adequately plead facts which, if proven, would establish the existence of an equitable estoppel (see Doe v North Shore Univ. Hosp., 28 AD3d 603, 604 [2d Dept 2006]). The decanting was expressly designed in a manner to avoid plaintiff and the other siblings (other than Avraham) from being aware that the decanting was taking place. Consequently, plaintiffs legal malpractice claim against Meltzer Lippe is not time-barred. As to plaintiffs motion, under motion sequence number eight, as set forth in the court’s July 3, 2024 decision and order, based upon Meltzer Lippe’s failure to comply with all of the discovery requests, it shall automatically be precluded from offering any evidence or testimony at trial (see Biggio v Biggio, 110 AD3d 654, 655 [2d Dept 2013], lv denied 22 NY3d 860 [2014]). “‘To prevail on a motion to hold a party in civil contempt pursuant to Judiciary Law § 753 (A) (3), the movant is required to prove by clear and convincing evidence that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, that the order was disobeyed and the party disobeying the order had knowledge of its terms, and that the movant was prejudiced by the offending. conduct'” (Botros v Botros, 233 AD3d 1051, 1053 [2dDept2024], quoting Perrone v Perrone, 229 AD3d 816, 817 [2d Dept 2024]; see also El-Dehdan v El-Dehdan, 26 NY3d 19, 29 [2015]). Plaintiff has proven these elements, and shown that Meltzer Lippe should be held in civil contempt. No further sanctions are warranted.”

“Accordingly, Meltzer Lippe’s motion, under motion sequence number one, for summary judgment dismissing plaintiffs complaint as against it, is denied. Plaintiffs motion, under motion sequence number eight, is granted to the extent that Meltzer Lippe is held in civil contempt and is hereby precluded from offering any evidence or testimony at trial.”

Robbins v O’Hara 2025 NY Slip Op 32005(U) June 5, 2025 Supreme Court, New York County Docket Number: Index No. 152842/2022 Judge: David B. Cohen presents the attorney judgment defense in a setting where the Court finds that there is no unsettled or misunderstood law.

“In his complaint, plaintiff alleges that he retained defendants in 2018 to represent him in a
divorce proceeding against Madero1 (NYSCEF 1). In February 2020 plaintiff and Madero
signed a Stipulation of Settlement (Settlement Agreement), which, among other things, required
plaintiff to obtain life insurance naming Madero as the beneficiary to secure his payment
obligations under the agreement (id.). Following the onset of the COVID-19 pandemic and its
alleged impact on plaintiffs’ finances, plaintiff contends that defendants advised him that the pandemic provided grounds to “vitiate” the entire Stipulation, including the life insurance
requirement (id.).
In his affirmation, plaintiff claims this advice was contrary to well-established New York
precedent and was based on a “phantom” legal research project that was fabricated to generate
more than $40,000 in additional legal fees (NYSCEF 51). Relying on this erroneous advice,
plaintiff did not obtain the required life insurance (id.).
On August 6, 2020, Madero submitted an order to show cause seeking to compel plaintiff
to obtain the agreed-upon life insurance, and also requested attorneys’ fees (NYSCEF 39). In
response, on October 28, 2020, defendants filed a cross-motion on plaintiff’s behalf seeking
relief from certain financial obligations under the Settlement Agreement, including the life
insurance requirement, the distributive award, and spousal maintenance, and acknowledged
during oral argument that defendants were asking the Court to make new law (NYSCEF 20).
On March 30, 2021, the Court issued an order granting Madero’s application and denying plaintiff’s cross-motion (NYSCEF 22). The court also directed plaintiff to pay Madero’s counsel
fees in accordance with the Settlement Agreement (id.).”

““Pursuant to the professional judgment rule, an attorney’s ‘selection of one among several
reasonable courses of action does not constitute malpractice’ (Springs v L&D Law P.C., 234
AD3d 422, 424 [1st Dept 2025] quoting Rosner v. Paley, 65 NY2d 736 [1985]). However, an
attorney may be held liable for malpractice when they pursue an untenable legal strategy and fail
to advise the client of the adverse consequences, especially where those consequences were
foreseeable and avoidable (see Tenesaca Delgado v. Bretz & Coven, LLP, 106 AD3d 486, 488–
89 [1st Dept 2013] [legal malpractice claim sufficiently stated where attorneys advised plaintiff
to seek relief barred by law, failed to warn of likely deportation, and thereby caused her
removal]; see also Stevens v Wheeler, 216 AD3d 537, 538 [1st Dept 2023] [holding malpractice
claim sufficiently stated where attorneys’ probate advice exposed estate to greater elective share
under Rhode Island law]).
Here, defendants argue that plaintiff’s allegations are conclusory and fail to state a claim.
While the complaint uses terms like “negligent” and “reckless,” plaintiff alleges specific facts to
support these assertions, namely, that defendants advised him to repudiate a fully executed
negotiated Settlement Agreement, based on speculative legal grounds purportedly justified by the
COVID-19 pandemic. Plaintiff further alleges that this advice was unreasonable, contrary to
established law, and proximately caused him to incur damages, specifically his own unnecessary
legal fees and Madero’s attorneys’ fees pursuant to the Settlement Agreement’s fee-shifting provision.

Defendants also contend that plaintiff cannot establish causation because he did not and
could not prevail on the cross-motion seeking to set aside the Settlement Agreement. The
alleged malpractice is not that defendants failed to succeed on the cross-motion, but that they
advised plaintiff to pursue a meritless strategy that was contrary to controlling precedent and
predictably resulted in financial harm. “Causation” in the malpractice context does not always
require that a client would have prevailed on a meritless motion, but rather that the attorney’s
deficient advice proximately caused the client to incur avoidable damages (Boye v Rubin &
Bailin, LLP, 152 AD3d 1 [1st Dept 2017] [“plaintiff must show that he or she . . . would not have
incurred any damages, but for the lawyer’s negligence”(quoting Rudolf, 8 NY3d at 442)]).”

“Lastly, defendants’ argument that an attorney’s judgment call, particularly one involving
COVID-19 and its impact on settlement agreements, constitutes judgmental immunity is
misplaced. They rely on Lloyd’s Syndicate 2987 v Furman Kornfeld & Brennan, LLP, 182
A.D.3d 487 (1st Dept 2020), where the court applied judgmental immunity because the
attorney’s advice involved unsettled insurance law and was supported by two reasonable,
independent legal grounds. The plaintiff failed to allege that either was incorrect. Notably,
Lloyd’s was decided before the COVID-19 pandemic and did not involve pandemic-related legal
advice. Here, the alleged malpractice does not involve unsettled law or ambiguous contract
terms. It concerns specific advice to seek settlement modification based on speculative
assumptions about COVID-19. Judgmental immunity does not apply where the advice lacks a
reasonable basis.
At the motion to dismiss stage, pursuant to CPLR 3211(a)(7), these allegations
sufficiently state that defendants “failed to exercise the ordinary reasonable skill and knowledge
commonly possessed by a member of the legal profession and that their failure caused plaintiff to
suffer actual and ascertainable damages” (Nath v Chemtob Moss Forman & Beyda, LLP, 231 AD3d 546 [1st Dept 2024]). Accordingly, defendants’ motion to dismiss pursuant to CPLR 3211(a)(7) is denied.”

North Flats LLC v Belkin Burden Goldman, LLP 2025 NY Slip Op 32003(U) June 4, 2025 Supreme Court, New York County Docket Number: Index No.150420/2022 Judge: Richard G. Latin is the courtroom equivalent of a Broadway revival where the script was written by the AD and played out on a Supreme Court stage.

“Plaintiff, The North Flats LLC, was the owner, landlord and developer of a property that was formally a church, located at 163 North Sixth Street, Brooklyn, New York (the building). Defendant, law firm, Belkin Burden Goldman, LLP, represented plaintiff in connection with the coverage of plaintiff’s building as an interim multiple dwelling (IMD),1 pursuant to Multiple Dwelling Law (MDL) § 281(6).2 Plaintiff commenced this legal malpractice action against defendant, seeking to recover $3,000,000.00 in damages for defendant’s alleged negligence during its representation of plaintiff in connection with the coverage of plaintiff’s building as an IMD. Specifically, plaintiff alleges defendant deviated from the accepted standard of care by relying on plaintiff’s architect’s sworn certification of compliance with the fire and safety standards of MDL § 277 (Article 7-B [Art 7B]) with the Loft Board, and in so doing, failed to apply for an extension of the legalization deadlines associated with Art 7-B compliance, thereby prohibiting plaintiff from legally collecting rent from its tenants pursuant to MDL §§ 284 and 285(1),3 pending its receipt of a final residential COO (NYSCEF No. 89, [Complaint]). In response, defendant filed its verified answer with four counterclaims, seeking legal fees and sanctions, including, a money judgment in the amount of $83,209.33 for unpaid legal services, plus interest (NYSCEF No. 90, [Answer]). Defendant then brought a pre-discovery motion for summary judgment (motion sequence 001 [MS1]),4 in which it argued plaintiff’s complaint should be dismissed. This court denied the motion by the Decision and Order dated, August 23, 2022, as premature. However, as the motion was also denied without prejudice, defendant was granted leave to, “refile upon the completion of discovery and with an explanation as to whether defendant could have made an application to withdraw plaintiff’s architect’s certified opinion on Article 7B compliance and then seek an extension if [defendant] knew, or should have known, that there were legitimate reasons to doubt actual compliance” (North Flats LLC v Belkin Burden Goldman, LLP, 2022 N.Y. Misc. LEXIS 37469 *1 [Sup Ct, NY County Aug. 23, 2022, No. 150420/2022] [NYSCEF No. 92]). The First Department affirmed that decision on appeal, holding, as relevant here, that defendant’s failure “to submit an expert opinion demonstrating that defendant did not perform below the ordinary reasonable skill and care possessed by an average member of the legal community” was fatal to defendant’s motion (North Flatts LLC v Belkin Burden Goldman, LLP, 217 AD3d 427, 428 [1st Dept 2023] [Remittal Order]). Now that discovery is complete, defendant renews its application, moving pursuant to CPLR 3212, for summary judgment to dismiss plaintiff’s claim for legal malpractice, and for summary judgment on its counterclaims for legal fees and sanctions (NYSCEF No. 84, motion sequence 004 [MS4]). Plaintiff opposes the motion. The motion is decided as follows.”

“However, in accordance with the Appellate Division’s Remittal Order, here, the defendant may satisfy its initial burden by successfully demonstrating, through such an expert opinion, 1) that defendant exercised the requisite level of care, skill and diligence in representing the plaintiff; 2) that defendant’s actions were not the proximate cause of plaintiff’s loss; 3) that defendant’s reliance on plaintiff’s architect’s opinion was reasonable under the circumstances; and 4) an explanation as to why defendant was prohibited from withdrawing the previously filed Art 7-B certification and seeking a time extension to then comply with Art 7-B. In support of its position and in compliance with the First Department’s directive, defendant submits the expert opinion of Lanny R. Alexander, Esq., (Alexander) an attorney with over thirty years of experience, and a former Executive Director/General Counsel for the Loft Board (NYSCEF No. 87, [Alexander Affidavit]). Alexander asserts that defendant did not commit malpractice for several reasons. Of particular relevance, Alexander concludes that it was reasonable for defendant to rely on the architect’s Art 7-B certification. Alexander states it is often necessary for lawyers to rely on the expertise of professional architects.

Further, Alexander states that defendant was only made aware of the tenants’ answers, filed in plenary actions, seeking unpaid rent on plaintiff’s behalf, on May 17 after the close of business. Therefore, the deadline to file an extension had passed. While these answers contained an affirmative defense alleging plaintiff was not in compliance with Art 7-B, the pleading was devoid of any factual support. Therefore, even if defendant had received these answers prior to the deadline, the pleading would not have been sufficient to cause the defendant to doubt the validity of the 7-B certification, as bare legal conclusions are insufficient to raise an affirmative defense. As such, Alexander states that defendant had no reason to doubt the validity of the 7-B certification at any point prior to the deadline to file for an extension of the 7-B compliance deadline. Additionally, Alexander states a tenant’s failure to pay rent is insufficient to cause an attorney under these circumstances to be concerned about the validity of a 7-B certification, as a loft tenant’s nonpayment of rent is commonplace and “wholly unremarkable” (Id. at ¶ 31). Alexander explains that withdrawal of the 7-B certification was not an option, as it would have also required the withdrawal of all plenary actions filed in Supreme Court, the potential involvement of The New York City Department of Buildings (DOB) and a due process hearing.5 While defendant could have conceivably filed both the 7-B certification and an application seeking an extension of the same, Alexander states that the extension application would have been denied as moot. This is because the application would have sought an extension of the Art 7-B deadline that was sworn to have already been complied with by plaintiff and plaintiff’s own expert architect.6 As such, Alexander concludes that at all relevant times, defendant exercised the ordinary and reasonable skill and knowledge commonly possessed by a member of the legal profession engaged in the specialty area of Loft Law (Id.). Considering the foregoing, the Court finds that the defendant has satisfied its prima facie burden of establishing entitlement to judgment, and the burden shifts to plaintiff to provide evidence, in admissible form, establishing an issue of fact requiring a trial.”

“In opposition, plaintiff offers the expert opinion of Jason M. Frosh, Esq., (Frosh) an attorney with ten years of experience representing owners in Loft Law (NYSCEF No. 111, [Frosh Affidavit]). Frosh contends that defendant was on notice that the Art 7-B certification would be subject to challenge earlier than defendant alleges, allowing defendant time to file an extension. In support of this contention, Frosh provides a copy of the Capone tenant answer filed on May 12, 2021 (NYSCEF No. 114, [Capone Answer]), from one of the plenary actions, and an email between David Frazer (Frazer), Capone’s attorney, and the defendant. The email is specifically marked in capital letters, “FOR SETTLEMENT ONLY”, in which Frazer asks defendant to, “please provide proof [of] Art. 7-B compliance” (NYSCEF No. 116, [Frazer Email]). Frosh asserts, because this answer contains a nearly identical affirmative defense to the other tenant answers alleging plaintiff’s lack of Art 7-B compliance, it would have put defendant on notice and allowed defendant ample time to file an Art 7-B extension. Frosh’s assertion is unavailing, as defendant’s expert Alexander, previously addressed the context and circumstances of the affirmative defense, and that the lack of factual support and specificity of such an affirmative defense would not have caused any attorney to question the architect’s 7-B certification. CPLR 3013 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.”

Furthermore, unsworn emails that are not authenticated by an affidavit constitute inadmissible hearsay (see AQ Asset Mgt. LLC v Levine, 128 AD3d 620, 621 [1st Dept 2015]). As plaintiff has failed to produce an affidavit authenticating the Frazer email, it will not be considered. While Frosh contends that defendant’s actions were below the standard of care exercised by a reasonable attorney in similar circumstances, particularly within the Loft Law context, an attorneys’ “selection of one among several reasonable courses of action does not constitute malpractice” (Rosner v Paley, 65 NY2d 736, 738 [1985]). Further, an attorney’s error in judgment does not constitute legal malpractice (see Hand v Silberman, 15 AD3d 167, 167 [1st Dept 2005]). As plaintiff has failed to meet its burden of presenting evidence in admissible form sufficient to establish an issue of material fact requiring a trial, that part of defendant’s motion that seeks summary judgment dismissing plaintiff’s complaint is granted.”

Bernstein v Jacobson 2025 NY Slip Op 03173 Decided on May 28, 2025 Appellate Division, Second Department is the story of an attorney-client relationship gone bad. But…had it ended?

“In an action to recover damages for legal malpractice, the defendant appeals from an order of the Supreme Court, Queens County (Karina E. Alomar, J.), dated December 6, 2022. The order denied the defendant’s motion pursuant to CPLR 3211(a) to dismiss the amended complaint.

ORDERED that the order is affirmed, with costs.”

“Here, the affidavit, emails, and letter submitted by the defendant did not constitute documentary evidence within the meaning of CPLR 3211(a)(1) (see County of Westchester v Unity Mech. Corp., 165 AD3d at 884-885; Cives Corp. v George A. Fuller Co., Inc., 97 AD3d at 714). Further, the documentary evidence submitted with the motion did not utterly refute the plaintiff’s allegation that an attorney-client relationship existed at the time of the alleged malpractice (see Harris v Barbera, 96 AD3d 904, 905). Although the defendant submitted the retainer agreement indicating the conditions upon which the attorney-client relationship could be terminated, that document failed to conclusively establish that no attorney-client relationship existed at the time of the alleged malpractice (see Buchanan v Law Offs. of Sheldon E. Green, P.C., 215 AD3d 790, 791; Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 AD3d 587, 588).

Moreover, accepting the facts alleged in the amended complaint as true and according the plaintiff the benefit of every possible favorable inference, the amended complaint stated a cause of action for legal malpractice (see CPLR 3211[a][7]; Doe v Ascend Charter Schs., 181 AD3d at 649-650). Considering the amended complaint and an affidavit by the plaintiff’s spouse that was properly submitted to amplify the allegations in the amended complaint (see Zi Kuo Zhang v Lau, 210 AD3d at 831), the plaintiff sufficiently alleged that she would have prevailed in a personal injury action but for the defendant’s alleged malpractice (see Ramirez v Donado Law Firm, P.C., 169 AD3d 940, 943). Contrary to the defendant’s contentions, the plaintiff’s allegations of serious injury and damages were not speculative or conclusory (see Denisco v Uysal, 195 AD3d 989, 991).”

How to calculate when continuing representation ends is a continuing problem. Does the representation continue until new counsel come into the case? Does it continue until a consent to change attorney is filed? In Wells Fargo Bank, N.A. v Leopold & Assoc., PLLC 2025 NY Slip Op 03220 Decided on May 28, 2025 Appellate Division, Second Department the end comes much earlier.

“On March 15, 2022, the plaintiff commenced this action against the defendant to recover damages for legal malpractice. The defendant represented the plaintiff in an action to foreclose a residential mortgage (hereinafter the underlying action) in which the complaint insofar as asserted against one of the borrowers was dismissed for lack of personal jurisdiction (see Wells Fargo Bank, N.A. v Fameux, 201 AD3d 1012). According to the plaintiff, the defendant’s negligent failure to comply with the terms of an order in the underlying action resulted in the dismissal. In this action, the defendant moved pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred. In an order dated August 2, 2022, the Supreme Court granted the defendant’s motion. The plaintiff appeals.”

“The statute of limitations for a cause of action alleging legal malpractice is three years (see CPLR 214[6]; Fraumeni v Law Firm of Jonathan D’Agostino, P.C., 215 AD3d 803, 804; Farage v Ehrenberg, 124 AD3d 159, 163). “However, causes of action alleging legal malpractice which would otherwise be barred by the statute of limitations are timely if the doctrine of continuous representation applies” (Keshner v Hein Waters & Klein, 185 AD3d 808, 808 [alteration and internal [*2]quotation marks omitted]). Moreover, in response to the COVID-19 pandemic, then Governor Andrew Cuomo issued executive orders establishing a toll “of the filing deadlines applicable to litigation in New York courts,” which was in effect “between March 20, 2020, and November 3, 2020” (Baker v 40 Wall St. Holdings Corp., 226 AD3d 637, 638 [internal quotation marks omitted]; see 9 NYCRR 8.202.8, 8.202.67; Brash v Richards, 195 AD3d 582, 582). As a practical matter, the toll served to extend the statute of limitations period for causes of action that accrued prior to the tolling period, and which would have expired within that period, by 228 days from the original deadline (see Baker v 40 Wall St. Holdings Corp., 226 AD3d at 638; cf. Cruz v Guaba, 226 AD3d at 965). Here, the parties agree that both the tolling provisions of the COVID-19 executive orders and the continuous representation doctrine apply. Their dispute as to the timeliness of the legal malpractice cause of action focuses on when the defendant’s continuous representation of the plaintiff ended.

“For the [continuous representation] doctrine to apply, there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney” (Fraumeni v Law Firm of Jonathan D’Agostino, P.C., 215 AD3d at 804 [internal quotation marks omitted]; see Aseel v Jonathan E. Kroll & Assoc., PLLC, 106 AD3d 1037, 1038). “The essence of a continuous representation toll is the client’s confidence in the attorney’s ability and good faith, such that the client cannot be expected to question and assess the techniques employed or the manner in which the services are rendered” (Farage v Ehrenberg, 124 AD3d at 167). Therefore, “[o]ne of the predicates for the application of the doctrine is continuing trust and confidence in the relationship between the parties” (Aseel v Jonathan E. Kroll & Assoc., PLLC, 106 AD3d at 1038 [internal quotation marks omitted]). “‘What constitutes a loss of client confidence is fact specific, varying from case to case, but may be demonstrated by relevant documentary evidence involving the parties, or by the client’s actions'” (Fraumeni v Law Firm of Jonathan D’Agostino, P.C., 215 AD3d at 805 [internal quotation marks omitted], quoting Tantleff v Kestenbaum & Mark, 131 AD3d 955, 957).

Here, the defendant established, prima facie, that the legal malpractice cause of action was time-barred (see id.; Rupolo v Fish, 87 AD3d 684, 685). In opposition to the defendant’s prima facie showing, the plaintiff failed to raise a question of fact as to whether the continuous representation doctrine tolled the applicable statute of limitations period for enough time to render the legal malpractice cause of action timely. Contrary to the plaintiff’s contention, the record does not demonstrate that the relationship necessary to invoke the doctrine ended in December 2018 due to certain communications with and actions by the defendant that occurred after its discharge as counsel in the underlying action (see Farage v Ehrenberg, 124 AD3d at 167; Rupolo v Fish, 87 AD3d at 685; Tal-Spons Corp. v Nurnberg, 213 AD2d 395, 396). Nor does the record support the plaintiff’s alternative contention that the relationship ended on August 1, 2018, when it executed a consent to change attorney form (see Farage v Ehrenberg, 124 AD3d at 167-168). Instead, under the circumstances presented, the Supreme Court correctly concluded that the relationship ceased to exist on June 27, 2018. On that date, senior counsel for the plaintiff’s loan servicer emailed the defendant’s managing attorney to express the plaintiff’s desire to substitute new counsel in the defendant’s place on more than 130 matters, including the underlying action, and requested that the defendant coordinate the transfer of the files to new counsel, “thereby indicating [the plaintiff’s] lack of trust and confidence in the parties’ relationship and [its] intention to discharge the defendant[ ] as [its] attorney[ ]” (Fraumeni v Law Firm of Jonathan D’Agostino, P.C., 215 AD3d at 805; see Farage v Ehrenberg, 124 AD3d at 167-168; Aseel v Jonathan E. Kroll & Assoc., PLLC, 106 AD3d at 1038).

Accordingly, the Supreme Court properly granted the defendant’s motion pursuant to CPLR 3211(a)(5) to dismiss the complaint as time-barred.”

Rhttps://www.nycourts.gov/reporter/3dseries/2025/2025_50862.htmotonde v Stewart Title Ins. Co. 2025 NY Slip Op 50862(U) Decided on May 23, 2025 Supreme Court, Westchester County Jamieson, is plaintiffs new try at litigating claims over transfer of the Mamaroneck Beach Realty Group. It fails for a number of reasons.

“In this case, the verified complaint contains five causes of action. All involve the events leading up to and culminating in the closing of a transaction regarding the Property that occurred in November 2018. Specifically, in the complaint, plaintiff asserts that he “was listed as a Member of Mamaroneck Beach Realty Group, LLC, as established by incorporation documents filed with the New York State Secretary of State on October 25th, 2018;”^[FN3] “Any documents executed by any third party on behalf of Mamaroneck Beach Realty Group, LLC on November 14th, 2018, were fraudulently allowed by Stewart Title and the above defendants;” “Defendant Stewart Title Insurance Company, which insured the transaction . . . failed to verify the ownership of the purchasing LLC, allowing an unauthorized individual to close the transaction, causing significant financial loss, economic harm, and emotional distress for years. . . .;” and “Ms. Dall and Mr. Jonathan Feinsilver, [sic] fraudulently transferred the ownership documents from KJA to AJK overnight through fraud between November 13 and November 14, 2018 with [sic]^[FN4] the knowledge of the Plaintiff. . . . At no point prior to the closing or the day of the closing was Mr. Joseph Rotonde notified via email, phone, or text that this LLC switch was taking place by any of the defendants or his partners including the lake house [sic].”

The five causes of action are (1) for a “declaratory judgment holding Stewart Title Insurance Company and the defendants liable for negligence in failing to verify LLC ownership as a requirement of the purchase and sale contracts” at the November 2018 closing; (2) negligence because “Stewart Title and the defendants owed a duty of care to verify the authorized representative of the LLC as per the purchase and sale agreements” at the closing; (3) tortious interference with a contract because “Stewart Title and the defendants interfered with the transaction by failing to verify IRS documents and the NYS Certificate of Formation, allowing a third party to close on the transaction;” (4) aiding and abetting fraud, because “Stewart Title and the defendants knowingly failed to verify essential documents, participating and assisting in a fraudulent transaction;” and (5) breach of the implied covenant of good faith and fair dealing because “Under New York law, all contracts imply a covenant of good faith and fair dealing in the course of performance, which embraces a pledge that neither party shall do anything which will have the effect of destroying the right of the other party to receive the fruits [*2]of the contract.”

The Court begins with the motion to dismiss for lack of jurisdiction. Plaintiff submits to the Court a document that purports to be an affidavit of service. It says merely that Dall was served by serving “BRANDON COOMBS. MALE, 1601bs, BLACK SKIN, BLACK HAIR, 21- 35yrs old.” The document does not state when Dall was allegedly served by serving Coombs. The document does not state where Dall was allegedly served. The document does not state who Coombs is (doorman, roommate, neighbor, delivery person, random stranger, etc.). The document does not state what documents were delivered to Coombs. The document does not state why Coombs was served on Dall’s behalf. As CPLR § 308(2) requires that the affidavit of service “shall identify such person of suitable age and discretion and state the date, time and place of service. . .”, the Court finds that this purported affidavit of service does not demonstrate that Dall was served pursuant to this section of the CPLR.

Nor does the document state that the mailing required by CPLR § 308(2) was sent to Dall. In apparent acknowledgement of the mailing requirement, plaintiff submits to the Court evidence that he sent some documents to Dall by UPS in December 2024, which appears to be well before he served Coombs (or at least well before the date on the purported affidavit of service). Yet this does not constitute compliance with CPLR § 308(2). This section, in relevant part, states that if personal service is not made, a party has to follow a second step: “mailing the summons to the person to be served at his or her last known residence or by mailing the summons by first class mail to the person to be served at his or her actual place of business in an envelope bearing the legend ‘personal and confidential’ and not indicating on the outside thereof, by return address or otherwise, that the communication is from an attorney or concerns an action against the person to be served, such delivery and mailing to be effected within twenty days of each other; proof of such service shall be filed with the clerk of the court designated in the summons within twenty days of either such delivery or mailing, whichever is effected later; service shall be complete ten days after such filing. . . .”

Plaintiff did not do this. He did not mail the summons by first class mail; he did not put it in the appropriate envelope; he did not mail it within 20 days of the delivery; and he did not file the proof of such service. “The law is well settled that personal jurisdiction is not acquired pursuant to CPLR 308(2) unless both the delivery and mailing requirements have been complied with. The mailing requirement of CPLR 308(2) is to be strictly construed. The failure to comply with CPLR 308(2)’s mailing requirement is a jurisdictional defect warranting a finding as a matter of law that service thereunder was invalid.” AMK Cap. Corp. v. Plotch, 230 AD3d 26, 31, 214 N.Y.S.3d 10, 13 (1st Dept. 2024). Accordingly, the Court finds that service was invalid, and for this reason alone, Dall must be dismissed from the action.

However, there are other bases on which to dismiss Dall from the action. It has long been settled that “to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the Statute of Limitations, a defendant bears the initial burden of establishing prima facie that the time in which to sue has expired.” Savarese v. Shatz, 273 AD2d 219, 220, 708 N.Y.S.2d 642 (2d Dept. 2000). A review of the complaint shows that each and every claim arises out of the November 2018 closing for the Property or events preceding the closing. This action was filed in December 2024, more than six years after the closing. Some of the claims, as explained below, have three year statutes of limitations. As to those claims, Dall has satisfied her prima facie burden of establishing their untimeliness. Dall has also satisfied her burden as to the claims with six year statutes of limitation, since the events in question occurred more than six [*3]years ago.

“If the defendant satisfies this burden, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable, or whether the plaintiff actually commenced the action within the applicable limitations period.” Vega v. Hempstead Union Free Sch. Dist., 235 AD3d 696, 697, 226 N.Y.S.3d 341, 343 (2d Dept. 2025).

In his opposition, plaintiff asserts that his claims are timely, based on several different arguments. First, he asserts that his fraud claims are “timely within six years of the actor [sic] two years from discovery,” and that he only “discovered the fraudulent acts during discovery in the related action (Index No. 53123/2021).” Next, he argues that he was “unable to pursue claims earlier due to serious medical hardship, including a recurrence of cancer in 2019-2020, cancer treatment in 2020-2021, including in 2023 and 2024 [sic] Under CPLR § 208 (Disability Tolling), the statute of limitations is tolled when a litigant suffers from a physical or mental disability that prevents them from timely pursuing legal remedies.” In support of this assertion, he cites one case that does not apply and other cases that simply do not exist.^[FN5] Finally, plaintiff argues that “the COVID-19 pandemic further extended procedural deadlines, as recognized in Executive Order No. 202.8, issued by Governor Cuomo on March 20, 2020, and subsequent orders extending statutory deadlines until November 3, 2020.”

The Court begins with plaintiff’s CPLR § 208 argument. Although plaintiff invokes it to cover a physical disability, the plain language of this section shows that it applies only to “disability because of infancy or insanity.” It is thus irrelevant here, as plaintiff is not an infant, and does not claim insanity.

Nor does the fraud discovery rule assist plaintiff, for two reasons. First, despite the fact that he states that he learned about the alleged fraud during discovery in the related action, plaintiff does not state what he learned and when he learned it. This alone is fatal to plaintiff’s argument that he learned anything. More importantly, however, in a Decision and Order that this Court issued in September 2022 in the prior action (more than two years prior to the commencement of this action) in which the Court granted plaintiff’s motion to amend the complaint to include fraud claims, the Court stated that plaintiff argued that “the parties have substantially completed discovery of all issues existing prior to the proposed amendment.” The Court allowed the amendment because according to plaintiff, it “relies upon the very same [*4]underlying facts and transactions that have been at issue from the outset of this action and have been developed in the discovery process in which all parties participated.” Any information that plaintiff allegedly first learned from the prior action would have been prior to September 2022, which is more than two years prior to the commencement of this action. Accordingly, the discovery rule does not help him.

Turning to plaintiff’s argument that the Executive Orders extended the statutes of limitations, the Court agrees that this is the case. See, e.g., Suber v. Churchill Owners Corp., 228 AD3d 414, 415, 214 N.Y.S.3d 1, 3 (1st Dept. 2024) (“Plaintiff is correct that the pandemic-related executive orders constituted a toll of the applicable statute of limitations.”). However, this only make a difference with any claims that have six-year statutes of limitation; tolling cannot extend statutes of limitations that expired long before plaintiff commenced this action. Murphy v. Harris, 210 AD3d 410, 411, 177 N.Y.S.3d 559, 561 (1st Dept. 2022) (explaining that time remaining on claim continued to run again on November 20, 2020). That is to say, the negligence claim, see Castle Oil Corp. v. Thompson Pension Emp. Plans, Inc., 299 AD2d 513, 514, 750 N.Y.S.2d 629, 631 (2d Dept. 2002), and the tortious interference claim, see Ullmannglass v. Oneida, Ltd., 86 AD3d 827, 829, 927 N.Y.S.2d 702, 705 (3d Dept. 2011), are both time-barred on their face, as these claims expired in 2021 (taking the Executive Order extensions into account).

The remaining claims require more analysis. “On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), a court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. Allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration. Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery.” Barbetta v. NBCUniversal Media, LLC, 227 AD3d 763, 765—66, 212 N.Y.S.3d 135, 139 (2d Dept. 2024).

Beginning with the aiding and abetting fraud claim, which has a six-year statute of limitations and is timely, a review of the complaint reveals that it must be dismissed for substantive reasons. First, it is duplicative of the negligence claim. Amid v. Del Col, 223 AD3d 698, 700, 203 N.Y.S.3d 184, 187 (2d Dept. 2024) (claim alleging aiding and abetting fraud “arise[s] from the same facts as the cause of action alleging legal malpractice and are duplicative of that cause of action”); Hoffman v. RSM U.S. LLP, 169 AD3d 522, 523, 94 N.Y.S.3d 265, 267 (1st Dept. 2019) (“To the extent both the malpractice and aiding and abetting fraud claims allege that defendants ignored their professional duties, they are duplicative. To the extent both the malpractice and aiding and abetting fraud claims are based on defendants’ conflicts of interest, they are duplicative. To the extent both claims are based on nondisclosure, they are duplicative.”). For this reason, the aiding and abetting claim must be dismissed.

Second, it should be dismissed because the underlying fraud has not been sufficiently pleaded. Goldberg v. KOSL Bldg. Grp., LLC, 236 AD3d 995 (2d Dept. 2025) (“Since a cause of action alleging aiding and abetting fraud cannot lie without the underlying fraud having been sufficiently pleaded, the Supreme Court properly granted that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the third cause of action, alleging aiding and abetting fraud, insofar as asserted against them.”). See also Weinstein v. CohnReznick, LLP, 144 [*5]AD3d 1140, 1141, 43 N.Y.S.3d 387, 389 (2d Dept. 2016) (Aiding and abetting fraud claim properly dismissed where it “failed to satisfy the particularity requirements of CPLR 3016”).

Turning next to the declaratory judgment cause of action, it states that “Plaintiff seeks a declaratory judgment holding Stewart Title Insurance Company and the defendants liable for negligence in failing to verify LLC ownership as a requirement of the purchase and sale contracts.” It seeks money damages of “no less than” $5 million. At the outset, the Court notes that it has long been settled that a “declaratory judgment action is generally appropriate only where a conventional form of remedy is not available. Where alternative conventional forms of remedy are available, resort to a formal action for declaratory relief is generally unnecessary and should not be encouraged. . . . It is unnecessary where an action at law for damages will suffice.” Bartley v. Walentas, 78 AD2d 310, 312, 434 N.Y.S.2d 379, 381—82 (1st Dept. 1980). For this reason alone this cause of action should be dismissed.

But it is also clear that this declaration arises out of plaintiff’s negligence claim. As such, the three-year statute of limitations for negligence applies. This is because “where a declaratory judgment . . . action involves claims that could have been made in another proceeding for which a specific limitation period is provided, the action is subject to the shorter limitations period.” Morton v. New York City Bd. of Educ. Ret. Sys., 229 AD3d 619, 620, 215 N.Y.S.3d 447, 450 (2d Dept. 2024). Vigilant Ins. Co. of Am. v. Hous. Auth. of City of El Paso, Tex., 87 NY2d 36, 40—41 (1995) (“the CPLR prescribes no general period of limitation for a declaratory judgment action. Courts must look to the underlying claim and the ‘nature of the relief sought’ to determine the applicable period of limitation.”). Further, this claim is also duplicative of the negligence claim. Florence Cap. Advisors, LLC v. Thompson Flanagan & Co., LLC, 214 AD3d 498, 500—01, 186 N.Y.S.3d 156, 159 (1st Dept. 2023) (“The declaratory judgment cause of action fails because the existing claims for negligence and breach of contract provided full and complete relief.”). For this reason as well, it should be dismissed.

Turning to the cause of action for breach of the implied covenant of good faith and fair dealing, this claim states that “Under New York law, all contracts imply a covenant of good faith and fair dealing in the course of performance, which embraces a pledge that neither party shall do anything which will have the effect of destroying the right of the other party to receive the fruits of the contract.” Plaintiff does not explain to what contract he refers.

In her moving papers, Dall asserts that “Plaintiff bases this as well as all of his causes of action on one premise – he was a member of MBRG and thus should have been the one to sign all documents at closing not some ‘third party.’ As with the Third Cause of Action for tortious interference with contract, Plaintiff once again fails to allege that he was a party to any contract. The contract was between MBRG and the Seller, not Plaintiff. Nor does he specifically allege any breach of the covenant by defendant Dall who also was not a party to the contract.” Plaintiff entirely ignores this cause of action in his opposition papers. He thus fails to rebut movant’s prima facie showing. As a result, the Court must dismiss the cause of action for breach of the implied contract of good faith and fair dealing.”

Rules concerning legal malpractice litigation are unique, difficult and adhered to. Rules about appellate records are even more specific and adhered to. In Lubin v Arnold E. DiJoseph, P.C. 2025 NY Slip Op 03057 Decided on May 21, 2025 the Appellate Division, Second Department dismissed a pro-se appeal from a pro-se litigation of a legal malpractice in record time.

“In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Queens County (Joseph J. Esposito, J.), entered March 7, 2024. The order, insofar as appealed from, in effect, upon reargument and renewal, adhered to a prior determination in an order of the same court dated September 28, 2023, denying the plaintiff’s motion to compel a settlement and granting the defendants’ cross-motion to dismiss the complaint.

ORDERED that the appeal is dismissed, without costs or disbursements.

“‘Pursuant to CPLR 5526 it is the obligation of the appellant to assemble a proper record on appeal, and the record must contain all of the relevant papers that were before the Supreme Court'” (Fitzpatrick v CSS Indus., Inc., 236 AD3d 863, 863, quoting Fitzpatrick v Affairs & Banquets Floral Servs., Inc., 227 AD3d 954, 954; see Babayev v Kreitzman, 168 AD3d 655, 655). “‘Appeals that are not based upon complete and proper records must be dismissed'” (Fitzpatrick v CSS Indus., Inc., 236 AD3d at 863, quoting Garnerville Holding Co. v IMC Mgt., 299 AD2d 450, 450).

Here, the appellant failed to include in the record on appeal the full order appealed from, all papers submitted in support of, and in opposition to, the motion for leave to reargue and/or renew, the papers submitted in support of, and in opposition to, the plaintiff’s underlying motion to compel a settlement or the defendants’ underlying cross-motion to dismiss the complaint, or the order dated September 28, 2023. Since these omissions have rendered meaningful review of the order appealed from “‘virtually impossible, dismissal of the appeal is the appropriate disposition'” (Fitzpatrick v CSS Indus., Inc., 236 AD3d at 863-864 [internal quotation marks omitted], quoting Fitzpatrick v Affairs & Banquets Floral Servs., Inc., 227 AD3d at 955).”