Plaintiffs rarely obtain partial summary judgment other than in strict liability or labor law cases.  They almost never win in a legal malpractice setting, and Eurotech Constr. Corp. v Fischetti & Pesce, LLP  2019 NY Slip Op 01366  Decided on February 26, 2019  Appellate Division, First Department is no exception.  The Court was unable to determine, as a matter of law whether there was an obligation to advise the clients to trigger their excess insurance, and asked for expert guidance.

“Plaintiff failed to establish that there are no issues of fact as to its legal malpractice claim. The claim is that defendant failed to timely communicate with plaintiff about information obtained from testimony or bills of particular in the underlying personal injury action, and that, as a result, plaintiff was unable to timely notify its excess insurance provider that its primary insurance coverage might be exhausted. Still unresolved are the type and timing of any communication required, which depends on the agreed-upon scope of defendant’s representation of plaintiff, and the point at which defendant, in the exercise of the requisite professional skill and knowledge, should have realized that plaintiff’s primary insurance coverage could be exhausted (see Shaya B. Pac., LLC v Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 41-42 [2d Dept 2006], cited in Eurotech Constr. Corp., 155 AD3d at 437). Expert testimony would have been helpful because the issues here involve professional standards beyond the ordinary experience of non-lawyers (see Tran Han Ho v Brackley, 69 AD3d 533, 534 [1st Dept 2010], lv denied 15 NY3d 707 [2010]).”

Traditionally, plaintiffs plead a triumvirate of claims against attorneys consisting of legal malpractice, breach of contract and breach of fiduciary duty.  Additional claims are rarely seen.  In Ramirez v Donado Law Firm, P.C.  2019 NY Slip Op 01244  Decided on February 20, 2019
the Appellate Division, Second Department goes through a long list of claims and gives the elements.  The entire decision is valuable.

“Real Property Law § 265-b governs the conduct of distressed property consultants. “Distressed property consultant” or “consultant” is defined as “an individual or a corporation, partnership, limited liability company or other business entity that, directly or indirectly, solicits or undertakes employment to provide consulting services to a homeowner for compensation or promise of compensation with respect to a distressed home loan or a potential loss of the home for nonpayment of taxes” (Real Property Law § 265-b[1][e]). A consultant does not include, inter alia, “an attorney admitted to practice in the state of New York when the attorney is directly providing consulting services to a homeowner in the course of his or her regular legal practice” (Real Property Law § 265-b(1)(e)[i]). Here, contrary to the defendants’ contention, the plaintiffs adequately alleged facts from which it could be inferred that the defendants did not provide consulting services to the plaintiffs in the course of Donado Law’s regular legal practice (see De Guaman v American Hope Group, 163 AD3d 915). Accordingly, we agree with the Supreme Court’s denial of that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging a violation of Real Property Law § 265-b insofar as asserted against them.

General Business Law § 349(a) prohibits “[d]eceptive acts or practices in the conduct of any business, trade or commerce or in the furnishing of any service in this state.” A cause of action to recover damages for a violation of General Business Law § 349 must “identify consumer-oriented misconduct which is deceptive and materially misleading to a reasonable consumer, and which causes actual damages” (Wilner v Allstate Ins. Co., 71 AD3d 155, 161-162; see Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 25). Private contract disputes, unique to the parties, do not fall within the ambit of General Business Law § 349 (see Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d at 25; De Guaman v American Hope Group, 163 AD3d at 917). Here, contrary to the defendants’ contention, “in contrast to a private contract dispute, the practices alleged by the plaintiffs were not unique to these parties and involved an extensive marketing scheme that had a broader impact on consumers at large” (De Guaman v American Hope Group, 163 AD3d at 917 [citations and internal quotation marks omitted]; see Gaidon v Guardian Life Ins. Co. of Am., 94 NY2d 330, 344; Oswego Laborers’ Local 214 Pension Fund v Marine Midland Bank, 85 NY2d at 25). Accordingly, we agree with the Supreme Court’s denial of that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action alleging a violation of General Business Law § 349 insofar as asserted against them.

“Where a cause of action or defense is based upon misrepresentation, fraud, mistake, wilful default, breach of trust or undue influence, the circumstances constituting the wrong shall be stated in detail” (CPLR 3016[b]). However, the requirements of CPLR 3016(b) ” may be met when the facts are sufficient to permit a reasonable inference of the alleged conduct'” (Sargiss v Magarelli, 12 NY3d 527, 531, quoting Pludeman v Northern Leasing Sys., Inc., 10 NY3d 486, 492). Here, contrary to the defendants’ contention, the complaint pleaded causes of action sounding in fraud, fraudulent inducement, and fraudulent misrepresentation with sufficient particularity (see CPLR 3016; Sargiss v Magarelli, 12 NY3d at 531; Pludeman v Northern Leasing Sys., Inc., 10 NY3d at 492; De Guaman v American Hope Group, 163 AD3d at 917). Moreover, contrary to the defendants’ contention, the causes of action sounding in fraud, fraudulent inducement, and fraudulent misrepresentation were not duplicative of the breach of contract cause of action (see De Guaman v American Hope Group, 163 AD3d at 917; see also Neckles Bldrs., Inc. v Turner, 117 AD3d 923, 925). Accordingly, we agree with the Supreme Court’s denial of that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the causes of action sounding in fraud, fraudulent inducement, and fraudulent misrepresentation insofar as asserted against them.

“To recover damages for breach of contract, plaintiffs must demonstrate the existence of a contract, [their] performance pursuant to that contract, the defendants’ breach of their obligations pursuant to the contract, and damages resulting from that breach'” (De Guaman v American Hope Group, 163 AD3d at 917, quoting Elisa Dreier Reporting Corp. v Global NAPs Networks, Inc., 84 AD3d 122, 127). Here, contrary to the defendants’ contention, the plaintiffs sufficiently pleaded a cause of action alleging breach of contract (see De Guaman v American Hope [*3]Group, 163 AD3d at 917). Accordingly, we agree with the Supreme Court’s denial of that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action sounding in breach of contract insofar as asserted against them.

To recover damages for legal malpractice, a plaintiff must establish “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” (Dombrowski v Bulson, 19 NY3d 347, 350 [internal quotation marks omitted]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; Dempster v Liotti, 86 AD3d 169, 176). “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; see Garcia v Polsky, Shouldice & Rosen, P.C., 161 AD3d 828, 830; Kliger-Weiss Infosystems, Inc. v Ruskin Moscou Faltischek, P.C., 159 AD3d 683, 684). Here, contrary to the defendants’ contention, the complaint sufficiently pleaded a cause of action to recover damages for legal malpractice (see Garcia v Polsky, Shouldice & Rosen, P.C., 161 AD3d at 830; Hershco v Gordon & Gordon, 155 AD3d 1007, 1009). Accordingly, we agree with the Supreme Court’s denial of that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action sounding in legal malpractice insofar as asserted against them.”

There are four elements of legal malpractice.  “Standing” is not really one of them, but continually lurks in the background.  Your opponent’s lawyer departs from good practice?  Too bad.  You lack privity and you lack standing.  Your company retains the lawyer and you, individually want to sue?  Too bad.  You lack privity and you lack standing.

Kaminski v Sirera  2019 NY Slip Op 01067  Decided on February 13, 2019  Appellate Division, Second Department is a prime example.

“In or about 2009 or 2010, the plaintiff acquired membership units in nonparty Melange Med Spa, LLC (hereinafter the LLC), from a prior member of the LLC. In 2016, the plaintiff commenced this action individually and derivatively on behalf of the LLC against, among others, the defendant Christina Sirera, a managing member of the LLC, seeking, inter alia, declaratory and injunctive relief, an accounting, and damages for waste and breach of fiduciary duty. The plaintiff asserted causes of action against the defendants Allyson Avila and Wilson, Elser, Moskowitz, Edelman & Dicker, LLP (hereinafter Wilson Elser), attorneys for the LLC, alleging legal malpractice, breach of contract, breach of fiduciary duty, and aiding and abetting breach of fiduciary duty.”

“”[M]embers of a limited liability company (LLC) may bring derivative suits on the LLC’s behalf” (Tzolis v Wolff, 10 NY3d 100, 102; see Jacobs v Cartalemi, 156 AD3d 605; Stack v Midwood Chayim Aruchim Dialysis Assoc., Inc., 54 AD3d 935; East Quogue Jet, LLC v East Quogue Members, LLC, 50 AD3d 1089). A “[m]ember” is a person who has been admitted as a member of a limited liability company in accordance with the terms and provisions of the Limited Liability Company Law and the limited liability company’s operating agreement, and who has a membership interest in the limited liability company with the rights, obligations, preferences, and limitations specified under the Limited Liability Company Law and the operating agreement (Limited Liability Company Law § 102[q]). A “[m]embership interest” means “a member’s aggregate rights in a limited liability company, including, without limitation: (i) the member’s right to a share of the profits and losses of the limited liability company; (ii) the member’s right to receive distributions from the limited liability company; and (iii) the member’s right to vote and participate in the management of the limited liability company” (Limited Liability Company Law § 102[r]).

Here, the plaintiff does not dispute that she failed to obtain the consent of the nonselling members to be admitted as a member of the LLC when she acquired her membership interest. Paragraph 8 of the LLC’s operating agreement provides that “[n]ew members may be admitted only upon the unanimous consent of the Members and upon compliance with the provisions of this agreement,” and paragraph 32(e) of the operating agreement provides that “[a] non-member purchaser of a member’s interest cannot exercise any rights of a Member unless, by unanimous vote, the non-selling Members consent to him becoming a Member” (see Limited Liability Company Law § 602). Therefore, contrary to the Supreme Court’s determination, the plaintiff, as a nonmember purchaser who had not been admitted as a member of the LLC, lacks standing to pursue derivative causes of action on behalf of the LLC (see Tzolis v Wolff, 10 NY3d at 102; MFB Realty LLC v Eichner, 161 AD3d 661; Cordts-Auth v Crunk, LLC, 815 F Supp 2d 778 [SD NY], affd 479 Fed Appx 375 [2d Cir]).”

Granted, reading a decision does not always illuminate the facts behind the case, but Gilbo v Horowitz  2019 NY Slip Op 30320(U)  February 9, 2019  Supreme Court, New York County
Docket Number: 158727/2017 Judge: Margaret A. Chan is very startling.  It’s a legal malpractice case along with a declaratory judgment that he was incompetent to sign a retainer or a power of attorney.  Why was he incompetent?  Was he incompetent?  Read on.

“On July 21, 2012, plaintiff attended a wedding reception in Brooklyn where he had six vodka and soda drinks in a span of two and one-half hours (NYSCEF # 7 – Hearing tr., p 17). After the reception, he left to meet friends at a nearby lounge. As he walked across Flatbush Avenue, he was struck by a motor vehicle driven by non-party Crandall Glasgow. Plaintiff sustained devastating injuries from this accident and spent nine weeks in a medically induced coma and seven months
recuperating in the hospital (NYSCEF # 1- Verified Complaint at 1l1l 12-13).

On July 27, 2012, plaintiffs mother enlisted Mark Bodner, Esq. to represent plaintiff (NYSCEF #115 – Bodner aff at ii 4). On September 14, 2012, while hospitalized, plaintiff executed a retainer agreement (retainer) with defendant Mark L. Bodner, P.C. and simultaneously executed a power of attorney (POA) authorizing his mother to pursue a personal injury claim related to the accident on
his behalf (Complaint at 1l 18). On September 21, 2012, Bodner settled plaintiffs personal injury case with Glasgow’s insurer for the purported policy limit of $25,000.00 (id at 1l 20; Bodner aff at ii 8). Bodner avers that plaintiffs mother authorized Bodner to settle the case against the driver, Glasgow (NYSCEF # 115 -Bodner aff at ilil 8, 11). Bodner attempted to deliver the net proceeds of the settlement to Gilbo, but Gilbo rejected it (id at ,-r 28).”

“Plaintiff seeks a declaratory judgment nullifying the retainer and POA appointing his mother as attorney-in ·fact so to restore his case against the driver to the status quo. As plaintiffs mother is not a defendant here, this Decision and Order does not speak to the POA.

Bodner argues that plaintiffs basis for a rescission of the retainer is his incompetency due to his dire medical condition at the time he signed the retainer.  Bodner contends that plaintiffs conclusory allegations tending to show Bodner’s incapacity are insufficient to state a claim for rescission.
“A party’s competence to enter into a contract is presumed, and the party asserting incapacity bears the burden of proof’ (Er-Loom Realty, LLC v Prelosh Realty, LLC, 77 AD3d 546, 547 [lst Dept 2010] citing Feiden v Feiden, 151 AD2d 889, 890 [3d Dept 1989]). Plaintiff has to show by clear and convincing evidence that his mind was “so affected as to render him wholly and absolutely incompetent to comprehend and understand the nature of the transaction” (Sears v First Pioneer
Farm Credit, ACA, 46 AD3d 1282, 1284-1285 [3d Dept 2007] quoting Aldrich v Bailey, 132 NY 85, 89 [1892]). Plaintiff has to show further “that such incompetency/incapacity existed when he executed the … documents …. ” (Sears, 132 NY at 89 citing Feiden, 151 AD2d at 890).

Plaintiff avers that he “particularly pled for a Declaratory Judgment nullifying the power of attorney (“POA”), that gave his mother the power as agent, and the Bodner P.C. Retainer Agreement he signed while in a heavily medicated medically induced coma (“MIC”), both of which Plaintiff signed on September 14, 2012, only weeks after [he] was gravely injured” (NYSCEF #130 – Gilbo Aff at if 8).
Plaintiff does not deny signing the documents, which were notarized the same day. Plaintiff questions whether the notary was present when plaintiff signed since the notary, and Bodner, should have realized that plaintiff was not of sound mind (id. at if 16). Bodner provides only his allegations for the knowledge he imputes to the notary and Bodner.

Plaintiff asks this court to take judicial notice of his medical condition as alleged in his complaint because those allegations were undisputed (Gilbo Aff at if 12). This court declines plaintiffs request. But, this court takes plaintiffs allegations as true as this court must for the purposes of this motion to dismiss.

Plaintiff, who suffered a traumatic brain injury, among other injuries, was in a medically induced coma for nine weeks after being hospitalized on July 21 (Gilbo Aff at if 10; Complaint at if 12). Nine weeks from July 21 is September 22. Plaintiff signed the documents on September 14, at least one week prior to coming out of the nine-week coma. Plaintiff does not deny signing the documents but claims that “[a]t no time on September 14, 2012, was [he] of sound mind to reasonably understand
the nature and significance of the POA and the Bodner P.C. Retainer Agreement.” (Gilbo Aff at if 15). In other words, plaintiffs contention is that he signed the documents while he was in a medically induced coma, and that is the reason he lacked the capacity to understand what he signed.
Plaintiffs allegations of his medical condition are significant and serious; they are also conclusory. This court cannot jump to the conclusion plaintiff proffers for his cause of action to rescind the retainer. Bodner’s motion to dismiss plaintiffs fourth cause of action for a declaratory judgment nullifying the retainer is granted. “

When plaintiff pro-se’s legal expert says there were 20 defaults, was this a flight of fancy or a typo in which there were two defaults?  Either way, the case is headed for dismissal rather than summary judgment.

 Ziemianowicz v Janowski  2019 NY Slip Op 30326(U)  February 6, 2019 Supreme Court, Kings County Docket Number: 521427/2016  Judge: Loren Baily-Schiffman reads as if defendant will now move for summary judgment on the argument that plaintiff owed the real estate broker a commission, and would never have won the underlying case.

Of special interest is the Court’s discussion of Judiciary Law § 487 and its “only acceptable standard”.  “The law is clearly established that the only acceptable liability standard recognized to
support a claim that an attorney violated § 487 of the Judiciary Law is an intent to deceive.
Amalfitano v Rosenberg, 12 NY3d 8, 14 (2009}. Aristakesian v Ballon Stoll Bader & Nadler,
P.C., 165A.D.3d1023, 1025 (2d Dept 2018). Moreover, “[a]llegations regarding an act of
deceit or intent to deceive must be stated with particularity.” Facebook, Inc. v DLA Piper LLP
[US], 134 AD3d 610, 615 {2d Dept 2015). The allegations supporting Plaintiff’s claim that
Defendant violated Judiciary Law§ 487 do not set forth any facts from which an intent to
deceive could be inferred. Aristakesian v Ballon Stoll Bader & Nadler, P.C., supra at 1025. ”

Sclafani v Kahn  2019 NY Slip Op 01115  Decided on February 13, 2019 is an example of how the  Appellate Division, Second Department decides statute of limitation / continuous representation cases.  This legal malpractice claim arises from a loan closing where security for the loan was not handled.

“In January 2015, the plaintiffs commenced this action, inter alia, to recover damages for legal malpractice allegedly committed by the defendants at the closing of a loan on June 24, 2009. The defendants represented the plaintiffs at the closing, and the plaintiffs alleged that, as part of that transaction, the defendants were supposed to, but did not, negotiate security from the borrower for the loan by obtaining a mortgage against certain real property located in Orangeburg.

The defendants Paul B. Kahn and Kahn & Licker, LLP, moved, and the defendant Diversified Land Services, Ltd., separately moved, pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them. The defendants argued, inter alia, that the complaint was barred by the applicable statute of limitations. In opposition, the plaintiffs argued that the continuous representation doctrine applied to toll the applicable statute of limitations. The Supreme Court granted the defendants’ respective motions, and the plaintiffs appeal.

” On a motion to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, a defendant must establish, prima facie, that the time within which to sue has expired. Once that showing has been made, the burden shifts to the plaintiff to raise a question of fact as to whether the statute of limitations has been tolled, an exception to the limitations period is applicable, or the plaintiff actually commenced the action within the applicable limitations period'” (Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d 1085, 1085-1086, quoting Tsafatinos v Law Off. of Sanford F. Young, P.C., 121 AD3d 969, 969; see Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d 733, 734-735; Landow v Snow Becker Krauss, P.C., 111 AD3d 795, 796). An action to recover damages for legal malpractice must be commenced within three years of accrual, “regardless of whether the underlying theory is based in contract or tort” (CPLR 214[6]; see McCoy v Feinman, 99 NY2d 295, 301; Chase Scientific Research v NIA Group, 96 NY2d 20; Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d at 1086; Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d at 735; Farage v Ehrenberg, 124 AD3d 159, 163; Landow v Snow Becker Krauss, P.C., 111 AD3d at 796). “A cause of action to recover damages for legal malpractice accrues when the malpractice is committed, not when it is discovered” (Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d at 735; see McCoy v Feinman, 99 NY2d at 301; Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d at 1086; Farage v Ehrenberg, 124 AD3d at 164; Landow v Snow Becker Krauss, P.C., 111 AD3d at 796).

However, “[t]he continuous representation doctrine serves to toll the statute of limitations and render timely an otherwise time-barred cause of action for legal malpractice, but only where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim'” (King Tower Realty Corp. v G & G Funding Corp., 163 AD3d 541, 543, quoting McCoy v Feinman, 99 NY2d at 306; see Alizio v Ruskin Moscou Faltischek, P.C., 126 AD3d at 735). For the doctrine to apply, “there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney'” (Farage v Ehrenberg, 124 AD3d at 164, quoting Aseel v Jonathan E. Kroll & Assoc., PLLC, 106 AD3d 1037, 1038; see Quinn v McCabe, Collins, McGeough & Fowler, LLP, 138 AD3d at 1086).

Here, the defendants established that the plaintiffs’ legal malpractice cause of action was time-barred, as it accrued on June 24, 2009, at the conclusion of the closing (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442). In opposition to the defendants’ respective motions, the plaintiffs failed to raise a question of fact as to whether the continuous representation doctrine tolled the applicable statute of limitations. Indeed, the communications between the parties upon which the plaintiffs rely, which occurred after the statute of limitations had run, demonstrated that the attorney-client relationship in this matter had ceased at the conclusion of the closing, and was not continued.”

Attorney fees collections are frequently said to be the major cause of legal malpractice litigation.  Some lawyers have resorted to starting litigation lending setups which lend money to their clients, thereby arranging for the attorney to be paid and the client to be the subject of a high-interest litigation loan. Justicebacker Inc. v Abeles  2019 NY Slip Op 30294(U)  February 7, 2019
Supreme Court, New York County  Docket Number: 650374/2017 Judge: David Benjamin Cohen  is an example of how this might work.  This portion of the case is an argument over disqualification of an attorney under the advocate-witness rule.

“Abeles is a managing member of a restaurant. The restaurant operated out of a leased space
which was severely damaged by Hurricane Sandy. The landlord refused to make the necessary repairs to the premises. As a result, Abeles hired plaintiff/third party defendant Sunny Barkat and his law firm plaintiff JS Barkat, PLLC (Barkat, PLLC), to represent him in three law
suits and an arbitration related to the landlord’s refusal to repair the damage to the leased space.
On December 13, 2012, Abeles signed a retainer with Barkat and Barkat, PLLC. Pursuant to that
retainer agreement, Barkat and Barkat PLLC were to be paid 25% of any recovery, or $25,000,
whichever was greater. The retainer provided that during the pendency of the litigation, Abeles
was to pay Barkat PLLC an initial $2,500, and $1,200 per month thereafter until he paid Barkat
PLLC a total of $25,000. In the event Abeles was unable to continue making payments, Barkat
PLLC would receive a 20% ownership interest in Abeles’ restaurant.
On November 5, 2013, Abeles signed a second retainer agreement with Barkat and Barkat
PLLC which increased the fees Abeles was to pay Barkat and Barkat, PLLC. In the new retainer
agreement, Abeles agreed that Barkat PLLC would receive 40% of any recovery, required a
onetime payment of $7,500, and directed that Abeles would continue paying $1,500 per month
until he paid Barkat PLLC $18,000.
In July 2015, Abeles began experiencing financial problems and was unable to continue
making the monthly $1,500 payments. Barkat then informed Abeles that he owned a crowdfunding
company plaintiff Justicebacker Inc. (Justicebacker), through which Barkat could raise money for
Abeles’s living and business expenses. On August 10, 2015, Abeles signed a commercial litigation
financing agreement with Justicebacker in which Justicebacker agreed to pay Abeles $40,000 for
an 18% interest in his lawsuits or $60,000 for a 20% interest in the lawsuit. Abeles claims he never
received any funds from Justicebacker.

In August 2016, Barkat informed Abeles that he had hired plaintiff Michael Wolk (Wolk) and the Law Offices of Michael B. Wolk, P.C., (Wolk, P.C.) to help him with the lawsuits. Wolk
ultimately settled the lawsuits for $75,000. Abeles claims that he informed Wolk that he would
refuse to settle the cases unless he received at least $33,000 for himself. Abeles also claims that
Barkat and Wolk told him his position was unreasonable because he owed $52,000 to
Justicebacker. At that time, Abeles had already made $46,000 in payments to Barkat PLLC. Abeles
claims that Barkat offered to waive his fee so that Justicebacker would receive $52,000, Wolk
would receive $3,000, and defendant would receive $20,000. Abeles states that he refused to accept
that payout agreement and had Wolk negotiate with Justicebacker to reduce its claim, pursuant to
the commercial litigation financing agreement, from $52,000 to $47,000. At that point, Abeles
claims that Wolk agreed to waive his fee so that Abeles would receive $28,000 from the $75,000
settlement.
Abeles claims that after settling his lawsuits, Barkat and Wolk did not disburse any money
to him. Rather, on January 23, 2017, plaintiffs commenced this suit, while Wolk retained the
$75,000 in his escrow account. In the first cause of action, Justicebacker seeks payment of
$53,5000 pursuant to the terms of the commercial litigation financing agreement. In the second
cause of action, Justicebacker seeks the payment of its legal fees incurred by this action, pursuant
to the provisions of the commercial litigation financing agreement. In the third cause of action,
Barkat PLLC seeks payment of legal fees under a quantum meruit theory. In the fourth cause of
action, Wolk seeks payment of legal fees as the escrowee of the $75,000. ”

“Finally, in view of the fact that Wolk will be called as a witness to testify regarding his
negotiations with Justicebacker on Abeles’s behalf, Wolk should be disqualified pursuant to the
advocate-witness rules (see Rules of Professional Conduct [22 NYCRR 1200.0] rule 3.7[a]; Gould
v Deco/ator, 131AD3d448 [2°d Dept 2015][motion court providently exercised its discretion in
granting the defendants’ motion to disqualify attorneys from representing the plaintiff pursuant to the advocate-witness rules]). “