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).”

Legal malpractice has the unique “but for” proximate cause elements not found in other tort claim analyses, and it frequently is the reason why cases are dismissed at a higher rate (on CPLR 3211 motions) than is seen in other professional negligence claims. Med mal claims, as an example, are rarely dismissed pre-answer.

“The plaintiff commenced this action to recover damages for legal malpractice against the defendant law firm. The plaintiff alleged that she retained the defendant to represent her in a personal injury action that she commenced against, among others, the City of Long Beach (hereinafter the underlying action). The plaintiff allegedly appealed from an order in the underlying action that, inter alia, granted the City’s motion for summary judgment dismissing the complaint insofar as asserted against it. The plaintiff alleged that due to the defendant’s deficient representation, the appeal was never perfected and was ultimately deemed dismissed. The defendant moved pursuant to CPLR 3211(a) to dismiss the complaint in this action. In an order entered July 17, 2023, the Supreme Court granted the defendant’s motion. The plaintiff appeals.”

“”‘To state a cause of action to recover damages for legal malpractice, [a] plaintiff [*2][must] allege 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'” (May Dock Lane, LLC v Harras Bloom & Archer, LLP, 222 AD3d 635, 637, quoting Jean-Paul v Rosenblatt, 208 AD3d 652, 653). “‘To establish causation, the plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the attorney’s negligence'” (id., quoting Parklex Assoc. v Flemming Zulack Williamson Zauderer, LLP, 118 AD3d 968, 970). “If the alleged malpractice is based on the attorney’s failure to perfect an appeal from an order dismissing a cause of action in an underlying action, the plaintiff must show that, had the attorney perfected that appeal, the appeal would have been successful, the cause of action would have been reinstated, and the plaintiff would have prevailed on that cause of action in the underlying action” (McCluskey v Gabor & Gabor, 61 AD3d 646, 648).

Here, even accepting the facts in the complaint to be true and according the plaintiff the benefit of every favorable inference, the plaintiff cannot establish that, but for the defendant’s alleged negligence, the plaintiff would have been successful in her appeal in the underlying action (see id.). In the underlying action, it is undisputed that the City did not have prior written notice of the alleged defect that purportedly caused the plaintiff’s injuries, and the plaintiff did not sufficiently allege that an exception to the prior written notice requirement applies (see La Fleur v Janowitz, 228 AD3d 636, 638; Discepolo v County of Nassau, 226 AD3d 646, 647; see also McCluskey v Gabor & Gabor, 61 AD3d at 648).

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

On its face, Allen v Thompson 2025 NY Slip Op 31783(U) May 15, 2025 Supreme Court, New York County Docket Number: Index No. 160342/2020 Judge: Sabrina Kraus would seem to be a situation where a general practitioner takes on a complex employment discrimination case and then changes a word in the settlement papers in (what is later determined to be) an inappropriate way. The attorney sets it up so that the client, not he, made the change. The secondary lesson is that summary judgment in legal malpractice cases requires expert testimony.

“On or about February 28, 2012, Plaintiff was terminated from Chanel, Inc. after nineteen (19) years of employment. Plaintiff was offered a severance package of $21,789.20 and five (5) months of paid COBRA. Plaintiff was not satisfied with this arrangement and believed that her employment was terminated on the basis of discrimination. Plaintiff decided to consult an attorney, but was unable to pay for one, so she approached
Defendant, an attorney with whom she was acquainted through a mutual friend, about negotiating a Separation and Release Agreement.”

“Defendant agreed to negotiate on Plaintiff’s behalf, and though the parties did not discuss payment for said negotiations. it was agreed that when Plaintiff sued for discrimination, Defendant would file the case and get a contingency percentage if successful. When Defendant received the proposed agreement from Chanel, he advised Plaintiff he had changed one word, “including” to “excluding,” and told her to initial each page of the
agreement, indicate the change with a post-it note, and then forward the signed agreement to the legal department of the Company. This one change to the agreement made by Defendant, excluded from the release any right arising under Title VII, the New York State Human Rights Law and the New York City Human Rights Law, thereby allowing Plaintiff to still file a lawsuit under these statutes.”

“On or about December 3, 2012, Defendant provided Plaintiff with an affidavit that he had prepared and instructed Plaintiff to sign. The affidavit stated that Plaintiff, herself, was personally responsible for modifying the agreement and not Defendant. Plaintiff questioned Defendant as to why the affidavit was worded that way and was told by Defendant that legally this is the way that it had to be done. Plaintiff asserts that Defendant pressured her into signing signed the affidavit.”

“Plaintiff expressed the importance of having this Discrimination Suit sealed upon completion, as it would harm Plaintiff’s job and career opportunities. Plaintiff was continuously assured by Defendant that he would make sure it was sealed and there was nothing to worry about. Negotiations regarding the settlement agreement continued and on or about April 16, 2017, Defendant sent Plaintiff a new settlement agreement and general release from Chanel, Inc. that contained a new confidentiality provision stating that if Plaintiff or any other person acting as her agent ever discusses the claims or the settlement agreement, Plaintiff would be required to pay Chanel $10,000.00 for each and every breach of the confidentiality provision plus any attorney’s fees. Plaintiff requested numerous times that this provision be taken out of the agreement, but Defendant refused to negotiate with Chanel and stated that he wanted the case to be over with.

““On its motion for summary judgment, Plaintiffs had the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law (see CPLR 3212[b]; Zuckerman v. City of New York, 49 N.Y.2d 557, 561, 427 N.Y.S.2d 595, 404 N.E.2d 718).” Englington Med., P.C. v. Motor Vehicle Acc. Indem. Corp., 81 A.D.3d 223, 229 (2011). Where the only direct evidence available centers around what the parties allegedly said or did, an assessment of party credibility is required which, at summary judgment is necessarily resolved in favor of the nonmovant. Harty v. Kornish Distributors, Inc., 119 A.D.2d 729 (2d Dept. 1986).”

“Defendant failed to meet his initial burden of presenting evidence in admissible form establishing that he exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession in discharging his obligations to plaintiff (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Geraci v Munnelly, 85 AD3d 1361, 1362 [2011]; Adamski v Lama, 56 AD3d 1071, 1072 [2008]). The issue of the adequacy of the professional services provided requires a professional or expert opinion to define the standard of professional care and skill owed to plaintiff and to establish whether the attorney’s conduct complied with that standard (see Tabner v Drake, 9 AD3d 606, 610 [2004]; Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d 925, 926 [2003]; Greene v Payne, Wood & Littlejohn, 197 AD2d 664, 666 [1993]). As to the breach of contract claim, there are disputed issues of fact about what the parties did and did not agree to in terms of whether Defendant had agreed to have the case sealed.”

Gordon v Martel 2025 NY Slip Op 02993 Decided on May 15, 2025 Appellate Division, First Department illustrates what happens when clients hire/fire attorneys, or attorneys successfully withdraw from cases. Where a mistake is made by attorney 1, and successor counsel attorney 2 has time to fix the mistake, attorney 1 will be immunized.

“This legal malpractice action arises from plaintiff’s representation by nonparty Ronald Hollander, Esq., now deceased, in an action concerning an apartment located in Manhattan. Plaintiff alleges that Hollander’s failure to challenge the characterization by Supreme Court of a negligence claim as a breach of habitability claim in a 2018 order deprived plaintiff and her husband of litigating their negligence claim, which would have entitled them to special damages and remedies not available under the habitability claim.

Giving plaintiff the benefit of every possible favorable inference (see generally Leon v Martinez, 84 NY2d 83, 87-88 [1994]), defendant established that, irrespective of Hollander’s alleged negligence, dismissal was warranted because Hollander’s representation of plaintiff was not the proximate cause of her alleged damages with respect to her negligence claim (see Zarin v Reid & Priest, 184 AD2d 385, 387-388 [1st Dept 1992]). Nor does plaintiff establish that had Hollander appealed the 2018 order, he would have been successful on the appeal (see Hutt v Kanterman & Taub, 280 AD2d 379, 379 [1st Dept 2001], lv denied 96 NY2d 713 [2001]).

Moreover, Hollander only represented plaintiff until January 2020. As a result, plaintiff’s successor counsel had sufficient opportunity to raise the issue of the negligence claim with the court in advance of the hearing on plaintiff’s remaining claims, with the Judicial Hearing Officer during the hearing, or thereafter, either by post-hearing submission or subsequent motion (see Somma v Dansker & Aspromonte Assoc., 44 AD3d 376, 377 [1st Dept 2007]).

The complaint further fails to allege facts stating how a challenge by Hollander to the purported discrepancy in the 2018 order would have resulted in an award of ascertainable damages (see Pellegrino v File, 291 AD2d 60, 63 [1st Dept 2002]).”

Consider these dates: Commercial restructuring takes place in 2013-2014. An action for replevin is started in 2015 and an order is entered in early 2016. An appeal of that order is decided in 2021. How is the statute of limitations for legal malpractice implicated ?

Onco360 Holdings 1, Inc. v McDermott Will & Emery, LLP 2025 NY Slip Op 02927 Decided on May 14, 2025
Appellate Division, Second Department tell us that client is out of luck.

Between 2013 and 2014, the defendant McDermott Will & Emery, LLP (hereinafter the LLP), a law firm, provided legal services in connection with, inter alia, the restructuring of the plaintiff Sina Drug Corp. (hereinafter Sina), of which the plaintiff Kaveh Askari was the former president and controlling shareholder. This restructuring involved the creation of the plaintiffs Onco360 Holdings 1, Inc., Onco360 Holdings 2, Inc., and Onco360 Holdings 3, Inc., as well as a postmerger entity named Oncomed Specialty, LLC (hereinafter Specialty). In October 2015, Askari and Sina commenced an action for replevin against the LLP and Specialty, alleging that Askari and Sina were entitled to possession of the LLP’s files related to the restructuring transactions (hereinafter the 2015 replevin action). In an order entered May 3, 2016, the Supreme Court in the 2015 replevin action denied the motion of Askari and Sina for summary judgment on the complaint and granted the separate cross-motions of the LLP and Specialty for summary judgment dismissing [*2]the complaint insofar as asserted against each of them. In an opinion and order dated November 27, 2019, this Court reversed the order entered May 3, 2016 (see Askari v McDermott, Will & Emery, LLP, 179 AD3d 127).

In 2020, the plaintiffs commenced this action, among other things, to recover damages for legal malpractice arising out of the representation provided by the LLP and the defendants Robert H. Cohen and Kristian A. Werling, in connection with the restructuring transactions. The defendants moved pursuant to CPLR 3211(a) to dismiss the amended complaint. The plaintiffs opposed the motion and cross-moved, among other things, for leave to serve and file a second amended complaint. By order entered May 14, 2021, the Supreme Court granted the defendants’ motion and denied the plaintiffs’ cross-motion. On June 1, 2021, a judgment was entered, upon the order, in favor of the defendants and against the plaintiffs dismissing the amended complaint. The plaintiffs appeal.

“On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) on the ground that it is barred by the statute of limitations, the defendant bears the initial burden of establishing, prima facie, that the time in which to bring that cause of action has expired, whereupon the burden shifts to the plaintiff to raise a question of fact” (Sunyoung Jung v Reiner & Kaiser Assoc., 220 AD3d 643, 644; see Fraumeni v Law Firm of Jonathan D’Agostino, P.C., 215 AD3d 803, 804). “The statute of limitations for a cause of action to recover damages for legal malpractice is three years, which accrues at the time the malpractice is committed” (Tulino v Hiller, P.C., 202 AD3d 1132, 1135 [citations omitted]; see CPLR 214[6]). Here, the defendants satisfied their initial burden by demonstrating that the cause of action alleging legal malpractice accrued, at the latest, in 2014, and that the instant action was commenced in 2020, more than three years later (see Roubeni v Dechert, LLP, 159 AD3d 934, 935).

In opposition, the plaintiffs failed to raise a question of fact as to whether the statute of limitations was tolled or otherwise inapplicable or whether the plaintiffs actually commenced the action within the applicable limitations period (see Williams v New York City Health & Hosps. Corp., 84 AD3d 1358). Contrary to the plaintiffs’ contention, the defendants are not judicially estopped from asserting a statute of limitations defense, as the defendants did not receive a favorable result in the 2015 replevin action by taking a position contrary to one they are taking in this action (see Huizhi Liu v Guoging Guan, 225 AD3d 749, 751-752; Dime Sav. Bank of Williamsburg v 146 Ross Realty, LLC, 106 AD3d 863, 864). Further, contrary to the plaintiffs’ contention, the statute of limitations was not equitably tolled. The record is devoid of allegations or evidence that the plaintiffs were induced to delay the commencement of this action or prevented from exercising any legal remedy as a result of any affirmative misconduct on the part of the defendants (see Shared Communications Servs. of ESR, Inc. v Goldman, Sachs & Co., 38 AD3d 325, 325-326; Dioguardi v Glassey, 5 AD3d 430).”

Olshan Frome Wolosky LLP v Kestenbaum 2025 NY Slip Op 31695(U) May 9, 2025 Supreme Court, New York County Docket Number: Index No. 656174/2023 Judge: Lyle E. Frank represents a very common situation in the NY legal malpractice world. Client is involved in expensive legal proceedings, (here, they were both defendants and plaintiffs in legal proceedings), and payments go awry. When client is sued for fees, it responds with a legal malpractice defense. Often, details are threadbare.

“This action arises out of alleged unpaid legal fees. Defendants previously moved to dismiss the complaint; the application was granted in part. Defendants then submitted an answer with counterclaims. Plaintiff (“Olshan”) now moves to dismiss defendants’ counterclaims, and defendants oppose the instant motion. Upon the foregoing documents and after oral argument, plaintiff’s motion to dismiss the counterclaims is granted.
Background
Olshan is a New York limited liability partnership engaged in the practice of law. Defendant Fortis owns and/or controls defendants FPG Maiden Holdings and FPG Maiden Lane2. Defendant Joel Kestenbaum is the president of FPG Maiden Lane, as well as the president and a member of Fortis.

Olshan’s complaint alleges that the fees owed arise from their representation of Defendants in three pending commercial actions in New York County Supreme Court: (1) Valley National Bank, as successor by merger to Bank Leumi USA v. FPG Maiden Lane, LLC et al., Index No. 657252/2020 (the “Foreclosure Action”), in which Olshan appeared on behalf of and represented Fortis, FPG Maiden Lane, Joel Kestenbaum and other related entities; (2) FPG Maiden Lane, LLC et al. v. Bank Leumi USA et al., Index No. 653584/2020 (the “Lender
Liability Action”), in which Olshan appeared on behalf of and represented Fortis, FPG Maiden Lane and Joel Kestenbaum; and (3) MREF REIT Lender 2 LLC v. FPG Maiden Holdings et al., Index No. 653189/2022 (the “Mezz Lender Action”), in which Olshan appeared on behalf of and represented Fortis, FPG Maiden Holdings, FPG Maiden Lane and Joel Kestenbaum, (collectively, the “Actions”).”

“Throughout that time, Olshan alleges that Defendants defaulted on payments multiple times under the payment procedure clause of the Engagement Agreement, but that Olshan had continued representing Defendants because they had promised to pay. The most notable of these promises asserted in the complaint occurred on July 12, 2023, when Regan, acting as Fortis’ General Counsel, informed Olshan that “Louis [Kestenbaum] has approved payment of $425k to fully resolve the open invoices from November through April,” and further set out new guidelines regarding how Defendants’ would handle payments from thereon out.”

“Defendants assert four counterclaims against plaintiff: breach of contract, breach of fiduciary duty, legal malpractice and unjust enrichment. The Court will discuss each counterclaim in turn.
Breach of Contract
To state a claim for breach of contract, a party must allege: (1) the parties entered into a valid agreement, (2) plaintiff performed, (3) defendant failed to perform, and (4) damages. VisionChina Media Inc. v Shareholder Representative Servs., LLC, 109 AD3d 49, 58 [1st Dept [2013]. In support of its breach of contract counterclaim, defendants assert that plaintiffs terminated their representation “prematurely” and unilaterally and did not allow defendants sufficient time to obtain substitute counsel, which resulted in unspecified damages and prejudice
to defendants. Notably, the counterclaim does not allege that defendants have performed pursuant to the contract.
Plaintiff submits the termination email as well as the stipulation of substitution of counsel, as documentary evidence to defeat this claim. Further, plaintiffs cite to the letter submitted by Joel Kestenbaum, in the Mezz Lender Action, to establish that defendants should be estopped from claiming that plaintiff, rather than themselves, and former counsel caused delay in the underlying matters.
Here, the defendants do not contest the use of the email, that undoubtedly terminates plaintiff, as documentary evidence, pursuant to CPLR § 3211 (a)(1), nor do they dispute the emails authenticity. Rather defendants attempt to use the email to support their counterclaims. The Court will not rely on the email as documentary evidence, rather the substitution of counsel stipulation, sufficiently defeat the allegations in defendants’ counterclaims. The stipulations conclusively establish, that contrary to the allegations in the counterclaims, defendants were not
abruptly left without counsel or prejudiced because they lacked a sufficient time to find replacement counsel. To the contrary, the stipulations establish that defendants were not left without counsel and had no need to find replacement counsel. Accordingly, the breach of contract counterclaim is dismissed.”

“Legal Malpractice
“In order to state a cause of action for legal malpractice, the complaint must set forth three elements: the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and actual damages” (Mamoon v Dot Net Inc., 135 AD3d 656, 658 [1st Dept 2016] internal citations omitted).
The counterclaim fails to allege any specific factual negligent conduct by plaintiff. Further, the counterclaim is silent as to what, if any, loss was sustained, and further fails to allege any actual damages. Accordingly, the counterclaim alleging legal malpractice fails to state a viable cause of action.”

It is relatively rare to get a second chance at summary judgment, but in North Flats LLC v Belkin Burden Goldman, LLP 2025 NY Slip Op 31640(U) May 6, 2025 Supreme Court, New York County Docket Number: Index No. 150420/2022 Judge: Richard G. Latin that’s exactly what happened.

“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]).”

“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).”

“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.”

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