This entire episode could have been prevented.  The most likely reason for the problem is that the landlord purchased the building at a foreclosure sale and never became aware that the prior owner had entered into a stunning stipulation.  Beyond that mere fact, it is true that ancient SRO regulations on the UWS created a morass.

JMW 75 LLC v Belkin Burden Wenig & Goldman, LLP   2018 NY Slip Op 31945(U)  August 10, 2018 Supreme Court, New York County  Docket Number: 156352/2017   Judge: Shlomo S. Hagler reaffirms the widely understood principle that subsequent attorneys may not be held responsible for acts of prior attorneys.

“Plaintiff is the owner and landlord of a building located at 166 West 75th Street, New York, New York 10023 (“the Building”) where tenants Claude Debs (“Debs”) and Violaine Galland (“Galland”) (collectively, “the tenants or the respondents”) reside. In 2008, plaintiff’s predecessor-in-interest, 166 West 75th Street LLC (“the Prior Owner”), commenced a summary holdover proceeding in Housing Court against the tenants (166 West 75′” Street LLC v Claude Debs Galland a/k/a Claude Debs and Violaine Debs Galland a/k/a Violaine Galland, Civ Ct, Housing Part, NY County, Nov. 10, 2008, Lebovits, J., Index No. L&T 91914/08). The parties settled the litigation, pursuant to a stipulation dated November 10, 2008, which was “so-ordered” by Hon. Gerald Lebovits (“the Stipulation”) (NYSCEF Doc. No. 9, exhibit C). The Stipulation established Debs and Galland as rent stabilized single room occupancy (“SRO”) tenants (id. 3-4), and provided the landlord with an option to terminate the tenancy in exchange for the payment of $3 .5 million (id., 5-7). In addition, the parties stipulated to include a liquidated damages clause under the following circumstances:

8.  In the event that Landlord brings an action under paragraph 7 (for nonpayment of rent, nuisance or breach of the lease] and fails, the Landlord will pay the Tenant $250,000, irrespective of whether Tenant chooses to vacate the:apartment for the Payment. The Payment shall be as and for liquidated damage’s, it being agreed that Tenants’ damages in such event, would be impossible to’ ascertain, and that the Payment constitutes a fair and reasonable amount under the circumstances and· is not a penalty.
* * *
“12. This Stipulation shall be binding against and shall inure to the benefit of the parties, their agents and successor in interest and shall survive any transfer of  title.”

In 2016, plaintiff commenced a holdover summary proceeding (“the Underlying Holdover Proceeding”} against Debs and Galland seeking possession of one of respondents’ SRO units based upon a claim that respondents-were violating a substantial obligation of the lease and the Housing Maintenance Code by allowing the premises to be occupied by two children (JMW 75 LLC v Claude Debs and Violaine Galland, and “John Doe” and “Jane Doe;” Civ Ct, Housing Part, NY County, Oct.1 i, 2016, Schreiber, J, Index No. L&T61276/16)

Simultaneously; JMW 75 commenced two non-primary residence holdover proceedings with respect to other SRO units occupied by respondents. At the time of the comencement of this proceeding in Housing Court, plaintiff was represented by Kaplain & Duval LLP.

On May -18, 2016, a Consent to Change Attomey form was filed with the Housing Court substituting _Belkin Burden as attorneys of record for petitioner in place and stead of Kaplain & Duval LLP (NYSCEF Doc. No. 9, Exhibits P and 2). On October 11,2016, the Hon. Michelle D. Schreiber granted, in relevant part, respondents’ motions for summary judgment and counterclaim for liquidated damages in the sum of $250,000, pursuant to the Stipulation (NYSCEF Doc. No. 9, Exhibit E).”

“‘The common thread in both Wielaard and the Underlying Holdover Proceeding is one
simple fatal flaw in plaintiffs cause of action. Plaintiff is missing evidence of a violation having
been placed against the premises necessary to warrant any likelihood of success of its argument.
As such, it is beyond cavil that plaintiff knowingly commenced the meritless Underlying
Holdover Proceeding against Debs and Galland which directly precipitated the adverse
determination and ultimately resulted in the triggering of its liability to pay the liquidated
damages of $250,000.00. Simply stated, if plaintiff had not pursued the fatally flawed claitns in
the Underlying Holdover Proceeding, plaintiff would not have faced any liability whatsoever. It
was plaintiffs actions, and not the defendant’s, that caused its own damages.
If plaintiff possessed viable grounds for Underlying Holdover Proceeding, it would not
have subjected itself to liability under the Stipulation’s liquidated damages clause. It is not so
much the alleged ignorance of the existence of the Stipulation and the provision relating to the
trigger of the liquidated damages language as the lack of viability of the proceeding itself that
caused injury to plaintiff. Any argument claiming ignorance would not have changed the course
of the proceeding. Plaintiff would not have prevailed in the Underlying Holdover Proceeding
with the proposed alternative arguments. “

Brothers-in-law can be a problem to a successful car sales operation as is sadly set forth in Brausch v Devery  2018 NY Slip Op 31929(U) August 7, 2018  Supreme Court, Suffolk County
Docket Number: 11-28918  Judge: Denise F. Molia.  Plaintiff has a nice little used car lot and allows his brother-in-law to help him run it.  When he has to, Plaintiff tells others that the brother-in-law is the COO.  Nice title for a used-car salesman.  Everything grinds to the end when checks start to be forged, and the mother-in-law claims that she lent money to the used car lot.  It’s even worse when the law firm forgets to file a reply to a counterclaim and the answer/reply is stricken.

“Initially. the Devery defendants contend that the plain ti ff lacks standing to bring this action. as the claims against the third-party defendants in the underlying action belonged solely to A&A. and that he does not have standing to assert claims of legal malpractice on behalf or A&A. With respect to standing. It is u threshold determination. resting in part on policy considerations. that a person should be allowed access to the courts to adjudicate the merits of a particular dispute that satisfies the other justiciability criteria (see Society of Plastics Industries v. County  of Suffolk. 77 NY2d 761. 570 NYS2d 778 [ 19911). .. Standing … requires an interest in the claim at issue in the lawsuit that the lav,1 wi II recognize as a sufficient predicate for determining the issue at the litigant’s rcquc.!st … Without … standing. a party lacks authority to sue” (Caprer v. Nussbaum. 36 AD3d 176, 825 NYS2d 55 [2d Dept 2006] [internal citations and quotation marks omitted]). It is well settled that. in addition to the elements discussed above the elements or a cause of action for legal malpractice include the existence or an attorney-client relationship between the plaintiff and the defendant.  Lindsay v, Pasternack Tilker Ziegler Walsh Stanton & Romano LLP.129 AD3d 790. 780 N’YS3d 124 (2d Dept 2015)  Terio , Spodek. 63 AD3d 719, 880 NYS2d 679; 2d Dept 2009) and that the relationship must exist at the time of the alleged malpractice (Tabner v. Drake, 9 AD3d 606, 780 NYS2d 85 [3d Dept 2004). Here,  it is undisputed that the plaintiff retained the Dcvner firm to reprcscnt his corporation and him indivually and that said firm remained the attorney of record at all times relevant herein. The issue of the relative culpability of the defendants docs not alter these basic fact that the plaintiff had an attornye-client relationship with Devery and the Devary firm.”

Well, not for simply hiring an e-Discovery company, but for hiring a pet e-Discovery company which egregiously overbilled might lead to liability for the law firm.  We look at FTI Consulting, Inc. v CT Miami, LLC  2018 NY Slip Op 31923(U)  August 6, 2018  Supreme Court, New York County
Docket Number: 654062/2016  Judge: Melissa A. Crane for a second day.

“The following facts are from the third-party complaint (TPC). Akerman, a law firm, represented CT Miami in connection with a certain Florida litigation (the Florida litigation) (TPC, ¶2-3, 5). While that matter was ongoing, Akerman recommended that CT Miami hire an e-discovery company, plaintiff FTI Consulting, Inc. (FTI) to provide support services (TPC, ¶ 8-9). CT Miami hired FTI in September 2013 (id., i!7). CT Miami claims at that time the estimated cost of FTI’s services the parties agreed to was $4,900 (id., ¶ 8-10). CT Miami also claims that “Akerman explicitly  confirmed” that it was only obligated to pay the $4,900 estimate amount (id.,¶ 15).

Nevertheless, “[i]n late 2013 and early 2014, CT Miami began to receive outrageous bills from plaintiff, in amounts in excess of $100,000” (id.,  21 ). CT Miami claims it was unaware that FTI had undertaken further work beyond the $4,900 estimate and expected to be compensated for this work (id., 22). CT Miami also claims that, “[t]he Florida litigation did not require e-discovery in the scope billed by plaintiff’ (id., 23). When it raised the issue with its counsel, Akerman urged CT Miami to just pay FTI’s bill (id., 25-28). CT Miami claims that Akerman had a preexisting relationship with FTI and was interested in maintaining that relationship to the detriment of CT Miami (id., 32-33). When CT Miami refused, FTI commenced an action against it (the main action) (id., 29). CT Miami now brings this third party action against Akerman for: (1) breach of contract; (2) declaratory judgment; (3) breach of fiduciary duty; (4) contribution/indemnification; and (5) negligence. ”

“It is well settled that the relationship of client and counsel is one of ‘unique fiduciary reliance”‘ (Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1, 9 [1st Dept 2008] [citing Matter of Cooperman, 83 NY2d 465, 472 [1994]). CT Miami claims that it hired FTI based solely on Akerman’s recommendation and trusted Akerman to oversee that relationship. Akerman, in tum, claims that the plain language of FTI’s engagement letter makes clear that CT Miami obligated itself to pay all of FTI’ s bills. A client may reasonably rely on their counsel’s advice in choosing vendors and outside contractors. The court cannot determine on this motion what representations Akerman may have made to CT Miami with respect to the services that FTI would provide or how much they would cost. On this record, it is clear that CT Miami, at minimum, inquired and was concerned about the costs involved. Moreover, Akerman was aware of these concerns. On a motion to dismiss, the Court must credit CT Miami’s allegations that, among other things: (1) FTI was not authorized to undertake additional work, (2)that Akerman never discussed the charges this work would involve, (3) that Akerman prioritized its relationship with FT Miami over its fiduciary obligations to its client, and (4) that CT Miami had no knowledge of the e-discovery process and relied on Akerman to oversee that process (TPC, 22, 24, 26-28, 48-52). The claim for breach of fiduciary duty is, thus, sufficient. “

It’s rare, very rare, to come across what the Court thinks might be a novel question of law, especially in a legal malpractice setting.  Generally, the triumvirate of claims found in a legal malpractice setting are legal malpractice, breach of contract and breach of fiduciary duty,  In FTI Consulting, Inc. v CT Miami, LLC  2018 NY Slip Op 31923(U)  August 6, 2018  Supreme Court, New York County  Docket Number: 654062/2016  Judge: Melissa A. Crane we see a new participant:  ordinary negligence.  To date, courts have generally relegated any negligence claim against an attorney to “legal malpractice” rather than “negligence.”

“The following facts are from the third-party complaint (TPC). Akerman, a law firm, represented CT Miami in connection with a certain Florida litigation (the Florida litigation) (TPC, ¶2-3, 5). While that matter was ongoing, Akerman recommended that CT Miami hire an e-discovery company, plaintiff FT! Consulting, Inc. (FTI) to provide support services (TPC, ¶8-9). CT Miami hired FTI in September 2013 (id., i!7). CT Miami claims at that time the estimated cost of FTl’s services the parties agreed to was $4,900 (id., iii! 8-10). CT Miami also claims that “Akerman explicitly confirmed” that it was only obligated to pay the $4,900 estimate amount (id.,¶ 15). ”

“Akerman first argues that Florida’s two-year statute oflimitations for legal malpractice (Fla. Stat. Ann. § 95.11 [4]) bars all five causes of action applicable in this matter pursuant to New York’s “borrowing statute” (CPLR § 202). This argument relies upon plaintiffs claims as all sounding in legal malpractice. However, CT Miami asserts no claim for malpractice and takes no issue with the legal services Akerman rendered in the Florida litigation. Instead, CT Miami alleges a claim for simple negligence, separate and apart from Akerman’s legal services.

New York courts have previously recognized the distinction between professional malpractice and ordinary negligence in the medical malpractice context (e.g., Yaniv v Taub, 256 AD2d 273, 274 [1st Dept 1998] [“failure to communicate significant medical findings to a patient or his treating physician is not malpractice but ordinary negligence”]; McKinney v Bellevue Hosp., 183 AD2d 563, 565 [pt Dept 1992] [permitting claim of simple negligence where a malpractice action barred]). “The critical question in determining whether an action sounds in medical malpractice or simple negligence is the nature of the duty to the plaintiff which the defendant is alleged to have breached” (Stanley v Lebetkin, 123 AD2d 854, 854 [2d Dept 1986] [citations omitted]). A claim for simple negligence is “restricted to those cases where the alleged negligent act is readily determinable by the trier of the facts on common knowledge,” whereas a claim for malpractice is one that typically requires expert testimony or other specialized knowledge (Hale v State of New York, 53 AD2d 1025, 1025 [4th Dept 1976]). In other words, “[t]he distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter or medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of the facts” (Papa v Brunswick Gen. Hosp., 132 AD2d 601, 603 [internal quotation marks and citation omitted]).

Although this may be an issue of first impression for New York courts in the context of legal malpractice, the same logic applies to the distinction between simple negligence and legal malpractice as with respect to medical malpractice. An example typically used to demonstrate the distinction in the medical context is that of a nurse spilling hot water on a patient. The fact that a medical professional causes the injury does not tum this act of simple negligence into a medical malpractice.

Similarly, the mere fact that a negligence claim is asserted against an attorney, without more,
does not render it a claim for legal malpractice. Here, the act complained off – the hiring of a
company that allegedly overcharged for unauthorized work – does not require any special legal
skill and can be “assessed on the basis of the common everyday experience of the trier of the
facts” (id. at 603).

The cases cited by Akerman in support of its legal malpractice argument are distinguishable. Calcutti v SBU, Inc., a Southern District of New York case cited by Akerman for the principle that, “[l]egal malpractice, as opposed to ordinary negligence, is the appropriate cause of action to bring against an attorney who allegedly performed his/her professional duties negligently,” involved a complaint that asserted both a malpractice and a negligence claim against an attorney (224 F Supp 2d 691, 700 [SD NY 2002]). Notably, Calcutti permitted both claims to go forward (id. at 701). Santiago v 370 Broadway Assoc., which Akerman cites for the general proposition that, “[ m] al practice is the negligence of a professional toward a person for whom a service is rendered” actually holds only that, “an insurance broker is not capable of committing ‘professional malpractice”‘ (264 AD2d 624, 624-25 [1st Dept 1999], affd as modified, 96 NY2d 765 [2001]). The general proposition cited in that decision does not turn every claim against an attorney into legal malpractice any more than it would tum every claim against a doctor into medical malpractice.

That CT Miami is bringing this action against its former law firm is insufficient, on its own, to tum this action into one for legal malpractice. Accordingly, Akerman does not get the benefit of the shorter statute of limitations period applicable to malpractice claims and Florida’s longer four year statute of limitations applies to the claims (Fla. Stat. § 95.11 et seq.). Thus, the action is timely.”

We discussed Gilbo v Horowitz  2018 NY Slip Op 31844(U)  July 31, 2018  Supreme Court, New York County  Docket Number: 158727/2017  Judge: Margaret A. Chan last week in the context of ripeness in a multiple -attorney setting.  Beyond whether the case is ripe against prior attorneys while the underlying case is pending, is the question of how to break out (or apportion) blame in a multi-attorney setting.  First, some of the facts from the car accident case:

“Plaintiff is an attorney and represents himself in this matter. In the underlying personal injury action, plaintiff suffered devastating injuries when he was struck by a motor vehicle driven by non·party Crandall Glasglow as he walked across Flatbush Avenue in Brooklyn, New York, on July 21, 2012. Plaintiff alleges that he suffered a traumatic brain injury, :fracture of the left humerus and the neck vertebrae, and a severed brachial plexus of the left arm, among other injuries (NYSCEF Doc. No. 1- Verified Complaint at 1J 11). Plaintiff spent nine weeks in a medically induced coma and seven months recuperating in the hospital (id at 1111 12·13).

On September 14, 2012, while hospitalized, plaintiff executed a retainer agreement with defendant Mark L. Bodner, P.C. (Bodner) and simultaneously executed a Power of Attorney authorizing his mother to pursue a personal injury claim related to the accident on his behalf (id at 1J 18). Bodner negotiated asettlement with Glasglow’s insurer on September 21, 2012, for the purported limit of the policy- $25,000.00 (id at 1J 20). Bodner attempted to deliver the net proceeds of that settlement to Gilbo, but Gilbo refused it (id at 1J 28). Bodner later filed a Notice of Claim against the City of New York, which is stamped received on October 18, 2012 (NYSCEF Doc. No. 8- Notice of Claim).

For his claim against the City of New York, Gilbo contacted another attorney, non-party Sherwin Suss, who was then of counsel to defendant Dillon, Horowitz & Goldstein, LLP (DHG), in November 2012 (id at ~ 29). Plaintiff executed a retainer agreement with DHG on March 13, 2013 (NYSCEF Doc. No. 18-Retainer). Despite the retainer, plaintiff appeared self-represented at a GML §50h hearing held with the City of New York on October 16, 2013 (NYSCEF Doc. No. 7). DHG commenced
an action on plaintiffs behalf against the City of New York in Kings County Supreme Court under the Index no. 506293/2013 (the Kings County action). DHG characterized its retainer agreement as one to “investigate the viability of Plaintiffs potential cause of action against the City” (NYSCEF Doc. No. 30 – Dillon Aff at~ 13). DHG made a FOIL request, conducted a site visit with plaintiff, and timely filed the Kings County action to preserve plaintiffs claim against the City (id). In November 2014, Suss stopped working for DHG. Three years later, DHG moved to be relieved as counsel in the Kings County action, which was granted on December 1, 2017. Court records reflect that Gilbo represents himself in that Kings County action. ”

“DHG argues that the legal malpractice claim also fails because the complaint fails to articulate that its conduct was the “but for” cause of any alleged damages. It also argues that there are no damages as the Kings County action is pending. This court concurs on both arguments.

Recovery for legal malpractice requires proof of three elements: (1) attorney negligence; (2) the negligence was the ‘proximate cause’ of the actual loss sustained; and (3) quantifiable damages (Cosmetics Plus Group, Ltd v Traub, 105 AD3d 134, 960 NYS2d 388 [1st Dept 2013]). There is no dispute that the Kings County action remains pending. As such, no adverse decision exists that would suggest that “but for” defendants’ alleged negligence, plaintiff would have had a more favorable outcome. Plaintiff, at this juncture, has not sustained any actual damages attributable to the alleged malpractice; plaintiffs claim is not ripe. Consequently, his claim for legal malpractice is dismissed with leave to replead (see Flintlock Const. Services, LLP v Rubin, Fiorella & Friedman LLP, 110 AD3d 426, 427 [1st Dept 2013]; Parametric Capital Mgt., LLC v Lacher, 15 AD3d 301, 302 [1st Dept 2005]; Kahan Jewelry Corp. v Rosenfeld, 295 AD2d 261 [1st Dept 2002]). Plaintiff withdraws his claim for specific performance (second cause of action) in his opposition (NYCSEF Doc No. 43 – Plaintiffs Opposition 11 17). In any event, that cause of action is not cognizable. A judge of the Kings County Supreme Court permitted DHG to be relieved in that action. Thus, this court could not make an award of specific performance in contravention of another court’s determination to relieve DHG. Plaintiffs cause of action for specific performance is permitted to be
withdrawn. “

Many JL § 487 cases are brought; few get to be considered for damages and far fewer ever get to the trier of fact. Yerushalmi v Schoenfeld  2018 NY Slip Op 05623  Decided on August 1, 2018  Appellate Division, Second Department is an example.

“In 2002, Malka Yerushalmi (hereinafter Malka) commenced an action for a divorce and ancillary relief against the plaintiff herein. The defendants herein represented Malka in the divorce action from 2011 to 2013. In 2004, the Supreme Court granted Malka’s motion for pendente lite relief. Over a period of nine years, the plaintiff made six different motions seeking to modify the pendente lite order. The Supreme Court repeatedly denied his motions, and, in 2012 and 2013, it awarded attorneys’ fees to the defendants. Two of the orders denying modification were appealed to this Court, and this Court affirmed (see Yerushalmi v Yerushalmi, 136 AD3d 809; Yerushalmi v Yerushalmi, 82 AD3d 1217). In both cases, this Court determined that no grounds for modification existed. In Yerushalmi v Yerushalmi (136 AD3d 809), this Court also affirmed the award of attorneys’ fees to the defendants.

In 2014, the plaintiff commenced this action, alleging that Malka had lied on her 2011 statement of net worth by stating that the value of her interest in certain family assets was unknown, and that, by certifying the statement of net worth, the defendants had violated Judiciary Law § 487. The defendants moved pursuant to CPLR 3211(a) to dismiss the complaint. The Supreme Court granted the motion. The plaintiff appeals from so much of the order as directed dismissal of the first through fourth causes of action, and from so much of a judgment entered upon the order as dismissed those causes of action.

We agree with the Supreme Court’s determination to grant that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(7) to dismiss the first through fourth causes of action, which alleged violations of Judiciary Law § 487. Even as amplified by the plaintiff’s affidavit and supporting evidence, and according the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83), the complaint failed to allege that the defendants acted “with intent to deceive the court or any party” (Judiciary Law § 487[1]; see Fleyshman v Suckle & Schlesinger, PLLC, 91 AD3d 591, 592-593; Jaroslawicz v Cohen, 12 AD3d 160, 160-161).”

One of the most common reflexive decisions by courts is to dismiss a breach of contract as well as a breach of fiduciary duty as duplicitive of the cause of action for legal malpractice.  If the claims of breach arise from the same facts and damages are similar then they are duplicitive.  However, when there is a legal malpractice claim that an asset has been lost and a breach of fiduciary duty claim that there has been overbilling, then they should not be duplicitive.  Mostly, however, trial courts dismiss without too much contemplation.

Menkes v Ballard Spahr LLP   2018 NY Slip Op 31834(U)  August 1, 2018  Supreme Court, New York County  Docket Number: 151471/2017  Judge: Robert R. Reed takes the time to look at the genesis of damages.

“Plaintiff, Sheryl Menkes (“Menkes”), a lawyer, sues her former attorneys, Ballard Spahr
LLP (“Spahr”) and John B. Harris (“Harris”), for legal malpractice, negligence and breach of
contract. Defendants now move, pursuant to CPLR 3124, to compel discovery. Menkes
opposes, arguing the cost of production is burdensome and should be borne – at least in part – by
defendants. Menkes, in addition, cross-moves to 1) serve a supplemental summons and
amended complaint; 2) add a claim for improper and excessive billing; 3) disqualify Spahr from
serving as counsel for itself, prose, and Harris, and 4) dismiss the defendants first, second and
fourth counterclaims. Defendants oppose. ”

“Menkes also moves to serve a supplemental summons and amended complaint. In
general, leave to amend pleadings, pursuant to CPLR 3025(b ), should be liberally granted where
there is neither undue prejudice nor unfair surprise. Permitting leave to amend is a discretionary
function of the trial court and should be freely granted “absent a showing that the facts
supporting the amendment do not support the purported claim or claims” (see Loewentheil v.
White Knight, LTD., 71 AD3d 581) (internal quotation omitted). Here, Menkes seeks leave to
add a cause of action for improper and/or excessive legal fees, which is separate and apart from
the other causes of action (see Cherry Hill Market Corp. v. Cozen O’Connor P. C., 118 AD3d
514 [holding that plaintiffs’ third cause of action, alleging that defendants breached their
fiduciary duty because they either collected and/or billed plaintiffs for excessive and/or unearned
fees, should not have been dismissed as duplicative of the malpractice causes of action]).
Accordingly, plaintiff is granted leave to serve a supplemental summons and amended _complaint
to add the improper and/or excessive fee cause of action. “

Time tick by, constantly and rapidly.  Gilbo v Horowitz  2018 NY Slip Op 31844(U)  July 31, 2018
Supreme Court, New York County  Docket Number: 158727/2017  Judge: Margaret A. Chan is an example of how there can be a terrible injury, yet no clear legal malpractice landscape.  Besides the confusion over which attorney might be responsible, there is the question of timing.

“Plaintiff is an attorney and represents himself in this matter. In the underlying personal injury action, plaintiff suffered devastating injuries when he was struck by a motor vehicle driven by non·party Crandall Glasglow as he walked across Flatbush Avenue in Brooklyn, New York, on July 21, 2012. Plaintiff alleges that he suffered a traumatic brain injury, :fracture of the left humerus and the neck vertebrae, and a severed brachial plexus of the left arm, among other injuries (NYSCEF Doc. No. 1- Verified Complaint at 1J 11). Plaintiff spent nine weeks in a medically induced coma and seven months recuperating in the hospital (id at 1111 12·13).

On September 14, 2012, while hospitalized, plaintiff executed a retainer agreement with defendant Mark L. Bodner, P.C. (Bodner) and simultaneously executed a Power of Attorney authorizing his.mother to pursue a personal injury claim related to the accident on his behalf (id at 1J 18). Bodner negotiated a settlement with Glasglow’s insurer on September 21, 2012, for the purported limit of the policy- $25,000.00 (id at 1J 20). Bodner attempted to deliver the net proceeds of that settlement to Gilbo, but Gilbo refused it (id at 1J 28). Bodner later filed a Notice of Claim against the City of New York, which is stamped received on October 18, 2012 (NYSCEF Doc. No. 8- Notice of Claim).”

“Recovery for legal malpractice requires proof of three elements: (1) attorney negligence; (2) the negligence was the ‘proximate cause’ of the actual loss sustained; and (3) quantifiable damages (Cosmetics Plus Group, Ltd v Traub, 105 AD3d 134, 960 NYS2d 388 [1st Dept 2013]). There is no dispute that the Kings County action remains pending. As such, no adverse decision exists that would suggest that “but for” defendants’ alleged negligence, plaintiff would have had a more favorable outcome. Plaintiff, at this juncture, has not sustained any actual damages attributable to the alleged malpractice; plaintiffs claim is not ripe. Consequently, his claim for legal malpractice is dismissed with leave to replead (see Flintlock Const. Services, LLP v Rubin, Fiorella & Friedman LLP, 110 AD3d 426, 427 [1st Dept 2013]; Parametric Capital Mgt., LLC v Lacher, 15 AD3d 301, 302 [1st Dept 2005]; Kahan Jewelry Corp. v Rosenfeld, 295 AD2d 261 [1st Dept 2002]). “