The law firm is paid to safeguard escrow deposits in a film industry case.  Proceeds are misapplied and money is said to be missing.  Sue the lawfirm?  But…what about the agreement which states that the law firm in neither required to nor authorized to investigate?  What of the agreement that the escrow shall not be liable absent bad faith or willful disregard?

In Worldview Entertainment Holdings Inc. v Woodrow  2018 NY Slip Op 33372(U)
December 24, 2018  Supreme Court, New York County  Docket Number: 159948/2014,  Judge Melissa A. Crane holds that such exculpatory agreements may not be used by attorneys, who have a higher duty.

“The complaint alleges that Woodrow had primary responsibility for overseeing the financial, management, and employee relations affairs of Worldview, that he was the only person authorized to handle certain transactions with Worldview’s banks, creditors, and investors, and that he used his authority to misappropriate Worldview’s escrow monies. The complaint alleges that Woodrow defrauded Worldview out of at least $700,000 of escrow funds and that Goetz is liable for part of this sum, because Goetz, acting on Woodrow’s instructions, disbursed escrow monies to inappropriate recipients. Allegedly, Woodrow caused Goetz to pay money to Woodrow for his personal uses, to his mother’s estate, to his wife, to three debt collectors to satisfy Woodrow’s personal debts, and to an individual to settle a dispute for Woodrow. Allegedly, from May 2011 to May 2014, Goetz improperly disbursed $242,302 on Woodrow’s behalf, and perhaps more. ”

“Goetz argues that it is excuplated from plaintiffs’ claims under the provisions of the Film Fund Agreements. While exculpatory agreements have applied to escrow agents who were not attorneys (see Platinum Equity Advisors, LLC v SDI, Inc., 2014 WL 3670674, *4 [Sup Ct, NY County 2014]), these agreements are disfavored as to attorneys, particularly when the attorney drafted the agreement with the exculpatory provision (see Galasso, Langione, & Batter, LLP v Galasso, 53 Misc 3d 1202[A], 2016 NY Slip Op 51308[U], n 50 [Sup Ct, Nassau County 2016]). Boyajian drafted the Film Fund Agreements.

Both as escrow agent and as attorney, Goetz owed Worldview a fiduciary duty (Greenapple v Capital One, NA., 92 AD3d 548, 549 [l51 Dept 2012]; Ulico, 56 AD3d at 8). The attorney-client relationship comprises a “unique fiduciary reliance,” whereby the client is entitled to depend on the attorney “maintaining confidentiality, avoiding conflicts of interest, operating competently, safeguarding client property and honoring the clients’ interests over the lawyer’s” (Matter of Cooperman, 83 NY2d 465, 472 [1994]). “An agreement prospectively limiting a lawyer’s liability to a client for malpractice or other kinds of civil liability is unenforceable” (Restatement [Third] of the Law Governing Lawyers§ 54, Comment b).

Section 2 ( e) states that the escrow agent is released from liability provided that it holds the money in accordance with the agreement’s terms and pays such money to the “designated production company … ” This provision does not exculpate Goetz, because plaintiffs allege that Goetz paid at least some money other than to a production company. Goetz points out that the agreement does not require it to investigate any payments provided that the authorizing documents are correct and that the third-party investors and Worldview release Goetz against all claims arising out of Goetz following Woodrow’s instructions (,-r 2 [ e ]). Nonetheless, the court does not see how an attorney can be exculpated in regard to the misappropriation of funds, even if the attorney had no duty to investigate or did not benefit.

The Film Fund Agreements provide that the escrow agent is not liable for any act unless taken in bad faith, willful disregard of the agreement, or gross negligence (,-r 5). Goetz argues  that this provision means that it cannot be charged with negligence. As already stated, that is incorrect. “

The Statute of Limitations for legal malpractice in New York is 3 years under CPLR 214(6).  In New Jersey it might be 6 years, as the AD1 tells us.  However, for a legal malpractice case brought in New York, it has to be started within 3, not 6 years, as plaintiff found out in Soloway v Kane Kessler, PC  2019 NY Slip Op 00026  Decided on January 3, 2019 Appellate Division, First Department.

“The court correctly found the complaint time-barred under CPLR 202, New York’s “borrowing statute,” which requires a claim to be timely under both the New York limitations period and that of the jurisdiction where the claim is alleged to have arisen (Kat House Prods., LLC v Paul, Hastings, Janofsky & Walker, LLP, 71 AD3d 580 [1st Dept 2010]).

Plaintiff, a New Jersey resident, alleged legal malpractice in connection with defendants’ representation of him for numerous real estate transactions, a cause of action which has a three year statute of limitations in New York (CPLR 214[6]), and a six year limitations period in New Jersey (NJ Stat Ann 2A:14-1). The latest that the alleged malpractice could have occurred was February 7, 2013, the date set for closing on the last of the real estate matters. Because plaintiff commenced the action on October 28, 2016, more than three years later, it was correctly dismissed as untimely.”

Knox v Aronson, Mayefsky & Sloan, LLP    2018 NY Slip Op 09030  Decided on December 27, 2018  Appellate Division, First Department  Singh, J. points up some recurring issues that take place in matrimonial-legal malpractice cases:  there are often multiple attorneys (6 or more in this case), there are many opportunities for the husband and wife to make their own agreements, the parties often take things into their own hands and bust agreements, and when the case settles, the settlement often takes many issues off the board.

“Plaintiff Jodi Knox brings this action against her former counsel, Aronson, Mayefsky & Sloan, LLP and Karen Robarge (collectively, AMS) for legal malpractice, breach of fiduciary duty, fraud, and violation of Judiciary Law § 487 in connection with a divorce action brought by her former husband, nonparty James McGinnis (the husband), in New York County Supreme Court (McGinnis v McGinnis). She alleges that her successor legal counsel, defendant Fredman Baken & Kosan, LLP (FBK), also committed legal malpractice.

Defendant AMS represented plaintiff from approximately February through October 2013. Defendant Robarge is the partner at AMS who was primarily responsible for plaintiff’s case. Defendant FBK represented plaintiff from January 2014 through June 2015.^[FN1]

While represented by AMS, plaintiff repeatedly expressed her desire to move for a protective order against the husband. AMS ultimately made the application for a protective order as a cross motion to the husband’s motion to set a visitation schedule on May 3, 2013. The motion and cross motion were resolved by a temporary stipulation, dated May 7, 2013 (the temporary stipulation), which gave plaintiff and the couple’s infant daughter, born on November 6, 2012 exclusive occupancy of the couple’s apartment in Manhattan and set a schedule for visitation with the husband.

In July 2013, plaintiff sought to temporarily move from the Manhattan apartment to Connecticut for foot surgery. Despite defendant Robarge’s advice to the contrary, plaintiff, after apparently obtaining her husband’s consent, moved with the child to Greenwich, Connecticut.

On October 21, 2013, AMS filed an order to show cause to be relieved as counsel due to plaintiff’s lack of confidence in their advice. Before the order to show cause was heard, plaintiff voluntarily secured new counsel.”

“Turning first to plaintiff’s legal malpractice cause of action against AMS, she alleges that AMS was negligent in failing to move for attorneys’ fees, resulting in her failure to receive an undetermined award to pay her attorneys. This claim fails because plaintiff’s various successor counsel had ample time and opportunity to make such a motion, and in fact one did (although it was purportedly abandoned) (see Davis v Cohen & Gresser, LLP, 160 AD3d 484, 487 [1st Dept 2018]).

Even assuming AMS was negligent in failing to move for attorneys’ fees, by agreeing as part of the settlement ^[FN2] to forgo any award of attorneys’ fees except for $20,000, plaintiff cannot show that but for AMS’s negligence she would not have sustained the loss (see generally Tydings v Greenfield, Stein & Senior, LLP, 43 AD3d 680, 682 [1st Dept 2007], affd 11 NY3d 195 [2008] [to establish proximate cause, the plaintiff must demonstrate that “but for” the attorney’s negligence, plaintiff would have prevailed in the matter in question; failure to demonstrate proximate cause mandates the dismissal of a legal malpractice action regardless of whether the attorney was negligent]); 180 Ludlow Dev. LLC v Olshan Frome Wolosky LLP, 165 AD3d 594, 595 [1st Dept 2018] [“While proximate cause is generally a question for the factfinder . . . it can, in appropriate circumstances, be determined as a matter of law”]).

Next, plaintiff claims that AMS was negligent in allegedly advising her that she was [*3]permitted to move to Connecticut, resulting in the loss of custody of the child. The damages plaintiff seeks are the attorneys’ fees incurred in connection with the husband’s motion to compel her return to New York and future legal fees she will have to expend to recover custody. Again, this claim fails because plaintiff’s alleged damages were not proximately caused by any advice given by AMS, but rather by her own subsequent failure to comply with the terms of the settlement.

Turning to the breach of fiduciary duty claim, plaintiff seeks damages for pain and mental suffering, the $132,000 plaintiff was required to pay the husband for his attorneys’ fees, the attorneys’ fees needed to recover custody of the child, and punitive damages. This claim and ensuing damages sought for the breach are duplicative of the malpractice cause of action (see Alphas v Smith, 147 AD3d 557, 558-559 [1st Dept 2017] [where the court found that the relief sought in the fiduciary duty claim was identical to the legal malpractice claim as it sought similar damages]).”

Utilisave, LLC v Fox Horan & Camerini, LLP  2018 NY Slip Op 33284(U)  December 18, 2018  Supreme Court, New York County  Docket Number: 652318/2014  Judge: Kathryn E. Freed is a complicated case involving rotating ownership of a party in litigation, purchases from the liquidating trustee and 10 lawsuits in multiple states.  Judge Freed eventually rules on summary judgment in what is otherwise a summary decision.

“Utilisave is a limited liability company organized in Delaware with its principal place of business in this state (affirmation of James G. McCamey [McCamey affirmation], exhibit P [complaint] 1 6). Nonparty Michael H. Steifman (Steifman) founded Utilisave’s predecessor in 1991 and served as a Utilisave employee (id.,  9, 14). Nonparty MHS Venture Management  Corp. (MHS), an entity wholly owned by Steifman, was one of Utilisave’s two managing members (id.,  13). Mikhael Khenin (Khenin), the second managing member, was Utilisave’s CEO (id.) In 2007, Steifman and MHS brought an action against Khenin and Utilisave, Stefman v Khenin, Supreme Court, Westchester County Index Number 8271/2007 (the Prior Action), for wrongfully withholding distributions and salary payments and for removal of Khenin as CEO (complaint 15-16). Fox, a law firm based in New York, and Rivkin, a former partner at Fox, represented Utilisave from January 2008 through July 2011, when a judgment was entered against Utilisave after a bench trial (id.,  7-8, 19 and 32).
Plaintiff alleges that, during the pendency of the Prior Action, Khenin’s term as CEO expired in 2009, as set forth in his employment agreement. Nonetheless, under defendants’ counsel, Khenin renewed his employment agreement without MHS’s knowledge, irrespective of the terms in Utilisave’s operating agreement that required the consent of both managing members (id.,  57). Khenin then paid himself unauthorized distributions and excessive compensation, misappropriated Utilisave’s confidential information, and undertook other actions that caused Utilisave harm (complaint,  26-32, 45). Ultimately, the judgment in the Prior Action included a declaration that Khenin’s renewed employment agreement was void (id., 57-58). ”

“”The doctrine of collateral estoppel … precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984] [internal citations omitted]). Thus, the two elements necessary to invoke collateral estoppel are “an identity of issue which has necessarily been decided in the prior action and is decisive of the present action” and “a full and fair opportunity to contest the decision now said to be controlling” (Buechel v Bain, 97 NY2d 295, 303-304 [200 I], cert denied 535 US 1096 [2002] [internal citation omitted]). “[T]he burden rests upon the proponent of collateral estoppel to demonstrate the identicality and decisiveness of the issue, while the burden rests upon the opponent to establish the absence of a full and fair opportunity to litigate the issue in the prior action or proceeding” (Ryan, 62 NY2d at 501 ).
The court finds that the Disqualification Order has no preclusive effect on the present action. First, with respect to the element of identicality of issues, the Disqualification Order did not determine any issue that would have precluded a legal malpractice claim against defendants (see Wachtel!, Lipton, Rosen & Katz v CVR Energy, Inc., 143 AD3d 648, 648-649 [I st Dept 2016]). To state a cause of action for legal malpractice, a plaintiff must plead “the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and actual damages” (Leder v Spiegel, 31 AD3d 266, 267 [1st Dept 2006], a.ffd 9 NY3d 836 [2007], cert denied, 552 US 1257 [2008] [citations omitted]). The two issues necessarily decided in the Disqualification Order related to whether the court should (I) disqualify Butler, Fitzgerald, Fiveson & McCarthy P.C. and Tibbets, Keating & Butler, LLC from representing Utilisave because of purported conflicts of interest and (2) order Khenin to consult with and obtain Steifman’s consent on the selection and retention of counsel for Utilisave. Whether defendants were negligent in providing Utilisave with advice was not at issue in the Prior Action. Likewise, the Prior Action did not determine whether defendants breached their contract to Utilisave, whether defendants aided and abetted Khenin’s breach of his fiduciary duty to Utilisave, and whether defendants were unjustly enriched because they were paid for the legal services rendered.

Furthermore, defendants were not in privity with Utilisave, Steifman, MHS or Khenin in the Prior Action. Privity is an “amorphous concept not easy of application” (D ‘Arata v New York Cen. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990] [citation omitted]). A nonparty to a prior litigation may be deemed in privity with a party in a prior litigation if “his [or her] own rights or obligations in the subsequent proceeding are conditioned in one or another on, or derivative of, the rights of the party to the prior litigation” (id. [citations omitted]). Plainly, Utilisave’s claims are not derivative of or conditioned upon the rights of any party in the Prior Action. More importantly, the language in thepisqualification Order does not absolve defendants of any a_llegedly negligent actions they may have taken. Indeed, the complaint alleges that Utilisave was harmed by defendants’ representation of it in the Prior Action, not that Khenin’s selection of defendants as Utilisave’s counsel was improper. “

Legal malpractice is but a child of professional negligence, and medical malpractice is a sibling.  In “Jane Doe” v Sharma  2018 NY Slip Op 28386  Decided on December 1, 2018 Supreme Court, Nassau County  Judge Brown navigates a very unusual medical malpractice case which has several shocking details.

“In this highly unusual case, the plaintiff has advanced five causes of action: negligent retention and supervision of the defendant Mohan Sharma; assault, battery and endangerment; intentional; negligent infliction of emotional distress; professional negligence and malpractice. This action was tried before a jury for seven days. The jury found the defendant and his practice, defendant Caring Medical, LLC, liable. The jury found (1) that the defendant Mohan Sharma departed from “the accepted standards of medical practice by practicing medicine while impaired by a cognitive disability;” (2) that his departure was a substantial factor in bringing about the plaintiff’s injuries; (3) that Caring Medical, LLC was negligent in permitting the defendant to practice medicine while impaired by a cognitive disability; and (4) that Caring Medical’s negligence was also a substantial factor in bringing about the plaintiff’s injuries. Mohan Sharma was found 70% at fault and Caring Medical was found 30% at fault. The plaintiff was awarded $700,000 for past pain and suffering and $300,000 for future pain and suffering for the upcoming ten years. Mohan Sharma and Caring Medical, LLC presently ask this court to set aside the jury’s findings as against the weight of the evidence.”

“The plaintiff’s claims arose from an incident occurring while the plaintiff was in defendant Mohan Sharma’s medical office along with her grandmother to receive certain test results. It is undisputed that during this visit the defendant Mohan Sharma took his penis out of his pants, masturbated and ejaculated on the plaintiff Jane Doe. The plaintiff, who suffers from intellectual disabilities, testified in sum that she and her grandmother had gone to the defendant’s office for a scheduled appointment on the day in question to obtain the results of urinary and blood tests and to have a bug bite on her grandmother’s arm examined. They were both brought into the examining room, which was a usual practice for them when they saw the defendant. The defendant had the plaintiff’s grandmother sit on the examination table facing the wall while he [*2]examined her back with a stethoscope. The plaintiff testified that he then approached her and stuck out his tongue and then “started unzipping his pants and took his penis out.” She testified that “he was trying to make [her] force of touching him and doing disgusting things to [her] and he eventually ‘semened’ on [her] pants and on the floor.” She further testified that she was able to take a video of his actions by pressing “record” on her phone. That video was shown to the jury. It shows the defendant exposing his penis, masturbating in front of the plaintiff, gesturing to her to touch his penis and to put her mouth on it.”

“The parties did not dispute that due to an aggressive form of frontal temporal dementia, the defendant Mohan Sharma was incapable of forming intent at the time of the sexual abuse. A stipulation was read to the jury consisting of the following: the defendant “was arrested for the acts committed against [the plaintiff] on October 11, 2013 and criminally charged with endangering the welfare of an incompetent or physically disabled person in the first degree in violation of Penal Law § 260.25, a Class E felony, and sexual abuse in the second degree, in violation of Penal Law§ 130.60, a class A misdemeanor. . . .” The stipulation advised the jury that those charges were dismissed because the defendant himself was determined to be an “incapacitated person.” The stipulation also included a statement that “[t]he acts committed against the [plaintiff] by [the defendant] were not intentional but rather were involuntary acts caused by complex partial seizures accompanied by masturbatory automatic behaviors resulting from his cognitive disorders.”

The jury also heard testimony that the defendant had exposed himself to an employee in January 2013, eight months before the subject incident, and the stipulation contained the January victim’s sworn statement that “Dr. Sharma pulled his penis out of his pants and grabbed my hand and tried to make me touch it” and noted that those contentions were never adjudicated because of the defendant’s incapacity. The jury was further advised via the stipulation that on February 26, 2013 Mohan Sharma stated that he engaged in other instances of conduct similar to his misconduct in January 2013.”

“The defendant’s expert acknowledged that he was impaired by a cognitive disorder that was progressive and degenerative at the time of the plaintiff’s assault and that this disability was severe. In fact, he testified that the defendant was in the throes of a major cognitive event when the abuse occurred.”

“These cases, though not directly analogous, highlight the standard to guard patients from foreseeable risks. So, too, the unique facts presented require independent consideration rather [*6]than rote application of general rules. Upon the evidence presented, a reasonable jury could determine that the plaintiff was present in the examination room at the time of the abuse as a patient of Dr. Mohan Sharma and that the events that unfolded were substantially related to her treatment. Further a reasonable jury could have determined that Dr. Sharma’s knowledge of his cognitive decline and his own past acts, together with his failure to protect his intellectually disabled patient from an unreasonable risk of harm was a breach of his professional duty, amounting to professional malpractice. Accordingly, the branch of defendants’ motion to set aside the verdict is denied.”

Tatintsian v Pryor Cashman LLP  2018 NY Slip Op 33152(U) December 10, 2018 Supreme Court, New York County Docket Number: 152022/2017 is extremely complicated, but Judge David Benjamin Cohen unravels the facts and teases out a legal malpractice analysis.

“In this action, plaintiff Gary Tatintsian (Plaintiff) alleges that defendants Pryor Cashman LLP (Pryor Cashman), Eric Hellige (Hellige) and Eudora Partners LLC (Eudora, along with Pryor Cashman and Hellige, collectively, Defendants) participated in a scam perpetrated by Mikhail Vorotyntsev (MV) to “fleece” investors, including Plaintiff. The complaint asserts four causes of action: fraudulent inducement, aiding and abetting fraud, legal malpractice and unjust enrichment.”

“Pryor Cashman is a New York law firm, Hellige is a senior partner of Prior Cashman, and Eudora is a company in which Hellige is its member and manager (complaint, 7-9). In the spring of 2016, Plaintiff sought to invest in ShopLink Inc. (ShopLink), a startup software company in which MV is its chief executive officer and sole board member (id., 12-13). Plaintiff was led to believe that shopLink is a legitimate operating company, but it turned out to be a vehicle through which MV and his wife defrauded investors in order to fund their lavish life style (id.,  14-15). ”

“Prior to 2016, Pryor Cashman and Hellige had represented ShopLink and MV in a myriad of matters, including, among others, a $1.83 million convertible notes offering by ShopLink, and ShopLink and MV accrued substantial legal fees, owed and unpaid, over the years (id., 19). In
addition to the unpaid fees, in June 2012, Hellige caused Eudora to make a $20,000 loan to MV,
and in return for this personal loan, MV granted Eudora a 5% equity interest in ShopLink and
any corporate entities owned by MV, including Counter Capital LLC (Counter Capital), which
owned all of the 15 million initially issued and outstanding shares of ShopLink (id.,  20). ”

“In April 2016, Plaintiff executed the Subscription Agreement, pursuant to which he purchased 340,000 shares of ShopLink’s common stock for $1,098,200, and concurrently therewith, he signed ShopLink’s Stockholders’ Agreement and other documents (collectively, Subscription Documents), including a letter agreement which granted Plaintiff an option to purchase additional ShopLink stock (id., 24). The Subscription Documents were drafted by Hellige and Pryor Cashman (id., ~ 25). In August 2016, Plaintiff exercised the option and bought an additional 100,000 shares of ShopLink stock for $250,000, bringing his total investment to $1,348,200 (id.,  26). When Plaintiff invested in ShopLink, Defendants saw the transaction as leverage over MV and as cash flow which would enable them to obtain payment of their unpaid legal fees and loans, while Hellige could also enhance his equity interest in ShopLink and Counter Capital (id., 21). Defendants even held Plaintiffs investment transaction hostage, warning MV a few days before the closing that unless a payment agreement was reached, the investment funds would be returned to Plaintiff (id., 22). In response to the threat, MV and Defendants ultimately agreed that, upon closing of the transaction, Shop Link would pay Pryor Cashman $15,000 out of the investment proceeds; MV would repay, from the same proceeds, his $30,000 personal loan owed to Hellige in return for a release by Eudora; and MV would sign a $33,000 promissory note payable to Pryor Cashman (id., 23). The existence of this deal, in which Defendants were beneficiaries, was not disclosed to Plaintiff prior to his investment (id.) ”

“In order to plead a legal malpractice claim, the complaint must allege “the negligence of the attorney” and that the negligence is the “proximate cause of the loss sustained” by plaintiff
(O’Callaghan v Brunelle, 84 AD3d 581, 582 [1st Dept 2011][internal citations and quotation marks omitted]). Further, a legal malpractice claim cannot be stated if there is no attorney-client relationship between the parties (Waggoner v Caruso, 68 AD3d 1, 3 [1st Dept 2009], affd 14
NY3d 874 [2010]).

Plaintiff acknowledges that he is not a client of and is not in privity with Defendants, but asserts that he may recover for losses arising from Defendants’ legal malpractice if the complaint alleges “fraud, collusion, malicious acts or other special circumstances” (Plaintiffs opposition at 25, citing, inter alia, Estate of Schneider v Finmann, 15 NY3d 306, 308 [2010]). In such regard, the complaint alleges that Defendants “engaged in fraud, collusion, or malicious or tortious acts against Plaintiff,” and as a result, “Defendants are liable to Plaintiff for legal malpractice” (Complaint,  61-62).
However, Plaintiffs allegation of “collusion” in the complaint is conclusory because he fails to identify any collusive acts between Defendants and MV, and has neither alleged nor  specifically identified any “malicious acts” on the part of Defendants. In his opposition to the motion, Plaintiff merely alleges that because “Defendants committed fraud against him to benefit themselves … and implicitly … Defendants secretly colluded with [MV] to misappropriate Plaintiffs investment for Defendants’ and [MV’s] own enrichment” (Defendants’ opposition at 26-27), The foregoing allegations sound more like an unjust enrichment claim rather than a legal malpractice claim, because the conclusory allegation of “secret collusion” is not supported by any fact. Also, his fraud against Defendant has been dismissed, for the reasons stated above.

Accordingly, the legal malpractice claim should be dismissed (Benzemann v Citibank,
NA., 149 AD3d 586, 586 [1st Dept 2017] [absence of privity, along with conclusory allegation of
fraud and collusion, required dismissal of the legal malpractice claim]). “

A fair number of summary judgment decisions rendered in Supreme Court are reversed in the Appellate Division.  Rather than simply ask how two courts can view the same evidence in such a differing light, note the deep doctrinal differences between that which Supreme Court credited and that which the Appellate Division relied upon  in 762 Westchester Ave. Realty, LLC v Mavrelis  2018 NY Slip Op 08452  Decided on December 12, 2018  Appellate Division, Second Department.

“The plaintiff, a limited liability corporation that owned real property in the Bronx, commenced this action alleging, inter alia, legal malpractice against the defendant Bill Mavrelis, also known as William N. Mavrelis (hereinafter the defendant). Specifically, the plaintiff alleged that it had retained the defendant to prepare and file an application for a tax abatement on the plaintiff’s behalf, that the defendant filed the application late, and that the lateness of the filing was the basis for the denial of the application. Prior to the completion of discovery, the plaintiff moved, inter alia, for summary judgment on the issue of liability with respect to the cause of action alleging legal malpractice. In an order dated January 4, 2016, the Supreme Court, among other things, granted that branch of the motion. The defendant appeals from that portion of the order.

Contrary to the defendant’s contention, the plaintiff’s motion was not premature (see CPLR 3212[f]). However, we disagree with the Supreme Court’s determination to grant that branch of the motion which was for summary judgment on the issue of the defendant’s liability for malpractice.

In an action alleging legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused plaintiff to sustain actual damages (see Zaidman v Marcel Weisman, LLC, 106 AD3d 813, 814; Erdman v Dell, 50 AD3d 627, 627-628).

Here, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law on the issue of the defendant’s liability, as it failed to present any evidence that its application for the subject tax abatement would have been granted had it been timely filed (see Zaidman v Marcel Weisman, LLC, 106 AD3d at 814; Erdman v Dell, 50 AD3d at 628). Moreover, the limited, pre-discovery record before us presents unresolved triable issues of fact regarding the cause of the late filing, including the extent, if any, to which such cause is attributable to any act or omission on the part of the defendant.

Accordingly, the Supreme Court should have denied that branch of the plaintiff’s motion which was for summary judgment on the issue of the defendant’s liability for legal malpractice, regardless of the sufficiency of the defendant’s opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).”