The death of a party divests the court of jurisdiction and stays the proceedings until…

Posted on February 11, 2025 by Richard Klass

In Lee v Leeds, Morelli & Brown, P.C., 233 AD3d 1072, 1075-76 [2d Dept 2024], the court held that:

“The death of a party divests the court of jurisdiction and stays the proceedings until a proper substitution has been made pursuant to CPLR 1015(a)[, and] any determination rendered without such substitution will generally be deemed a nullity” (Singer v. Riskin, 32 A.D.3d 839, 839–840, 821 N.Y.S.2d 120 [citations omitted]; see Hemmings v Rolling Frito–Lay Sales, LP, 220 A.D.3d 754, 757, 197 N.Y.S.3d 561; Vicari v. Kleinwaks, 157 A.D.3d 975, 976, 70 N.Y.S.3d 532). Here, the Supreme Court erred in considering the separate motions of the LMB defendants and Bear Stearns pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them because the motions were made after Roe’s death and prior to any substitution of a personal representative of his estate (see id. § 1015; Matter of Einstoss’ Estate, 26 N.Y.2d 181, 309 N.Y.S.2d 184, 257 N.E.2d 637; Neuman v. Neumann, 85 A.D.3d 1138, 1139, 926 N.Y.S.2d 632; Manto v. Cerbone, 71 A.D.3d 1099, 1100, 898 N.Y.S.2d 182). Accordingly, so much of the order dated January 8, 2020, as granted the separate motions of the LMB defendants and Bear Stearns pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them must be vacated as a nullity (see CPLR 1015; Matter of Einstoss, 26 N.Y.2d 181, 309 N.Y.S.2d 184, 257 N.E.2d 637; Neuman v. Neumann, 85 A.D.3d 1138, 926 N.Y.S.2d 632), and the appeal taken by the plaintiff Cheryl Lee from so much of the order dated September 30, 2020, as, upon reargument, adhered to the determination in the order dated January 8, 2020, granting those branches of the LMB defendants’ motion which were pursuant to CPLR 3211(a) to dismiss the first, third, and sixth causes of action must be dismissed.

Furthermore, the death of a party also terminates an attorney’s authority to act on behalf of the deceased party (see Vicari v. Kleinwaks, 157 A.D.3d at 976, 70 N.Y.S.3d 532; Vapnersh v. Tabak, 131 A.D.3d 472, 474, 15 N.Y.S.3d 131; Lewis v. Kessler, 12 A.D.3d 421, 422, 784 N.Y.S.2d 574). Thus, Roe’s former attorneys lacked the authority to file either the cross-motion or this appeal on his behalf. Accordingly the appeal purportedly taken on Roe’s behalf must be dismissed (see Vicari v. Kleinwaks, 157 A.D.3d 975, 70 N.Y.S.3d 532).

Richard A. Klass, Esq.
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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.comcreate new email with any questions.

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Court affirmed the denial of the law firm’s motion to dismiss

Posted on January 16, 2025 by Richard Klass

In Berger v Lewis Johs Avallone Aviles, LLP, 232 AD3d 840, 841-42 [2d Dept 2024], the court affirmed the denial of the law firm’s motion to dismiss the client’s malpractice lawsuit, holding:

“To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Georgica Bldrs., Ltd. v. 136 Bishops Lane, LLC, 175 A.D.3d 610, 611, 106 N.Y.S.3d 345 [internal quotation marks omitted]; see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511). Further, “[o]n a motion pursuant to CPLR 3211(a)(7) to dismiss for failure to state a cause of action, the court must accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Georgica Bldrs., Ltd. v. 136 Bishops Lane, LLC, 175 A.D.3d at 611, 106 N.Y.S.3d 345; see Leon v. Martinez, 84 N.Y.2d at 87, 614 N.Y.S.2d 972, 638 N.E.2d 511).

Here, accepting the allegations in the complaint as true and according the plaintiff the benefit of every possible favorable inference (see Leon v. Martinez, 84 N.Y.2d at 87, 614 N.Y.S.2d 972, 638 N.E.2d 511), the complaint sufficiently stated a cause of action to recover damages for legal malpractice. Contrary to Wohlgemuth’s contention, “ ‘a legal malpractice plaintiff need not, in order to assert a viable cause of action, specifically plead that the alleged malpractice fell within the agreed scope of the defendant’s representation’ ” (Shan Yun Lin v. Lau, 210 A.D.3d 817, 818, 178 N.Y.S.3d 538, quoting Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 39, 827 N.Y.S.2d 231). Further, “ ‘a legal malpractice defendant seeking dismissal pursuant to CPLR 3211(a)(1) must tender documentary evidence conclusively establishing that the scope of its representation did not include matters relating to the alleged malpractice’ ” (id., quoting Shaya B. Pac., LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d at 39, 827 N.Y.S.2d 231). Here, Wohlgemuth failed to submit documentary evidence sufficient to make that showing or to otherwise submit documentary evidence utterly refuting the plaintiff’s allegations or conclusively establishing a defense as a matter of law (see Zi Kuo Zhang v. Lau, 210 A.D.3d 829, 831, 178 N.Y.S.3d 545; Shan Yun Lin v. Lau, 210 A.D.3d at 818, 178 N.Y.S.3d 538).

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Dismissed legal malpractice action based on jurisdictional grounds

Posted on June 5, 2024 by Richard Klass

In Musial v Donohue, 225 AD3d 1164, 1164-65 [4th Dept 2024], the court dismissed a client’s legal malpractice action based on jurisdictional grounds since the defendants/attorneys were not in New York but in Texas. The court held:

Plaintiffs, who reside in New York, commenced this breach of contract and legal malpractice action against Texas attorney …, and his law firm, … PLLC (collectively, … defendants), as well as New York attorneys …, Esq., …, Esq., and …, Esq., and their law firm, … Law Offices (collectively, … defendants). Plaintiffs allege that defendants failed to provide them with adequate legal representation with respect to claims arising from a motor vehicle accident that occurred in Texas. In appeal No. 1, plaintiffs appeal from an order that granted the … defendants’ motion to dismiss the complaint against them for lack of personal jurisdiction. In appeal No. 2, plaintiffs appeal from an order that denied their motion seeking, inter alia, to strike the note of issue or obtain post-note of issue discovery.

With respect to appeal No. 1, we reject plaintiffs’ contention that the … defendants are subject to long-arm jurisdiction in New York. Under CPLR 302 (a) (1), “ ‘a court may exercise personal jurisdiction over any non-domiciliary … who in person or through an agent … transacts any business within the state’ ” (People v. Frisco Mktg. of NY LLC, 93 A.D.3d 1352, 1353, 941 N.Y.S.2d 823 [4th Dept. 2012]). “Jurisdiction can attach on the basis of one transaction, even if the defendant never enters the state, so long as the defendant’s activities here were purposeful and there is a substantial relationship between the transaction and the claim asserted” (Glazer v. Socata, S.A.S., 170 A.D.3d 1685, 1686, 96 N.Y.S.3d 791 [4th Dept 2019], lv denied 33 N.Y.3d 911, 2019 WL 4200617 [2019], quoting Fischbarg v. Doucet, 9 N.Y.3d 375, 380, 849 N.Y.S.2d 501, 880 N.E.2d 22 [2007] [internal quotation marks omitted]). “Purposeful” activities are “those by which a defendant, through volitional acts, avails itself of the privilege of conducting activities within [New York], thus invoking the benefits and protections of its laws” (id., quoting Fischbarg, 9 N.Y.3d at 380, 849 N.Y.S.2d 501, 880 N.E.2d 22 [internal quotation marks omitted]; see generally Ehrenfeld v. Bin Mahfouz, 9 N.Y.3d 501, 508, 851 N.Y.S.2d 381, 881 N.E.2d 830 [2007]). “As the party seeking to assert personal jurisdiction, the plaintiff bears the burden of proof on [that] issue” (Frisco Mktg. of NY LLC, 93 A.D.3d at 1353, 941 N.Y.S.2d 823 [internal quotation marks omitted]).

Here, plaintiffs failed to show that the … defendants purposefully availed themselves of the privilege of conducting activities in New York so as to subject them to long-arm jurisdiction pursuant to CPLR 302 (a) (1), inasmuch as the … defendants “never entered New York, [were] solicited … to perform services outside of New York, … performed outside of New York such services as were performed, and [are] alleged [only] to have neglected to perform other services outside of New York” (Mayes v. Leipziger, 674 F.2d 178, 185 [2d Cir. 1982]; see Bloomgarden v. Lanza, 143 A.D.3d 850, 852, 40 N.Y.S.3d 142 [2d Dept. 2016]), and the documentary evidence belies the conclusory allegations of plaintiffs’ counsel that the … defendants actively solicited referrals in New York (cf. Fischbarg, 9 N.Y.3d at 377, 849 N.Y.S.2d 501, 880 N.E.2d 22; see generally Eberhardt v. G&J Contr., Inc., 188 A.D.3d 1653, 1654, 132 N.Y.S.3d 383 [4th Dept. 2020]; Peters v. Peters, 101 A.D.3d 403, 403-404, 955 N.Y.S.2d 315 [1st Dept. 2012]). Even accepting as true the allegations set forth in the complaint and in the opposition to the motion to dismiss, and according plaintiffs the benefit of every favorable inference (see Bloomgarden, 143 A.D.3d at 851, 40 N.Y.S.3d 142), we conclude that, although plaintiffs signed the … defendants’ retainer agreement in New York and were in New York while on a telephone conference call with defendant …, who was in Texas at the time, this occurred during the course of the … defendants’ performance of legal services in Texas and because plaintiffs were New York domiciliaries, not because the … defendants were purposefully engaging in any business activities in New York (see id. at 852, 40 N.Y.S.3d 142; cf. State of New York v. Vayu, Inc., 39 N.Y.3d 330, 332-335, 186 N.Y.S.3d 93, 206 N.E.3d 1236 [2023]).

Plaintiffs also failed to make a prima facie showing of long-arm jurisdiction over the … defendants pursuant to CPLR 302 (a) (3), inasmuch as plaintiffs’ alleged injuries did not occur within New York but, rather, in Texas, where the … defendants’ alleged legal malpractice occurred (see Bloomgarden, 143 A.D.3d at 852, 40 N.Y.S.3d 142; see generally Zeidan v. Scott’s Dev. Co., 173 A.D.3d 1639, 1640, 103 N.Y.S.3d 707 [4th Dept. 2019]).

Richard A. Klass, Esq.
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The court reminded parties of the importance of submitting affidavits on motions

Posted on May 10, 2024 by Richard Klass

In Boukari v Schwartzberg Assoc., LLC, 225 AD3d 417, 417-18 [1st Dept 2024], the court reminded parties of the importance of submitting affidavits on motions. The court held:

Plaintiff opposed the motion only with an attorney affirmation. She did not submit an affidavit setting forth her version of the initial conversations with defendants or any other interactions that would support her attorney’s contentions that she was under a reasonable impression that defendants had agreed to represent her on a personal injury claim or that the law firm did not clearly disclaim representation (see Zuckerman v City of New York, 49 NY2d 557 [1980] [an attorney affirmation is insufficient to put before the court facts of which she has no knowledge]; cf. Encalada v McCarthy, Chachanover & Rosado, LLP, 160 AD3d 475 [1st Dept 2018] [the plaintiff’s testimony about his initial conversation with counsel raised issues of fact and credibility for the factfinder to decide]).

In view of the conclusive evidence establishing the absence of legal representation by defendants on any personal injury action, the court incorrectly determined that the legal malpractice claim was timely under the continuous representation doctrine (see Pace v Horowitz, 190 AD3d 619 [1st Dept 2021]; Knobel v Wei Group, LLP, 160 AD3d 409, 410 [1st Dept 2018]) and that it was factually sustainable (see Binn v Muchnick, Golieb & Golieb, P.C., 180 AD3d 598, 599 [1st Dept 2020]; Seaman v Schulte Roth & Zabel LLP, 176 AD3d 538, 539 [1st Dept 2019]).

Richard A. Klass, Esq.
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An allegation of attorney deceit on the court or a party

Posted on April 25, 2024 by Richard Klass

In Urias v Daniel P. Buttafuoco & Assoc., PLLC, 2024 NY Slip Op 01497 [Ct App Mar. 19, 2024], the NYS Court of Appeals dealt with Judiciary Law Section 487, holding that:

[Defendant/Attorney] contends that “[Plaintiff/Client] was relegated to bringing a motion to vacate under CPLR 5015. That path may well be available as a general matter,⁴ but section 487 cannot be read to make CPLR 5015 the exclusive avenue here. Not only does the text of the provision suggest that a plenary action is available in all instances of attorney deceit, but section 487’s long lineage also confirms that conclusion. The cause of action was descended from the first Statute of Westminster adopted in England in 1275, incorporated in New York’s earliest common law, and first codified in this State in a 1787 statute that closely tracks the current provision (see Melcher v. Greenberg Traurig, LLP, 23 N.Y.3d 10, 14–15, 988 N.Y.S.2d 101, 11 N.E.3d 174 [2014]; Amalfitano, 12 N.Y.3d at 12, 874 N.Y.S.2d 868, 903 N.E.2d 265). Its legislative history reflects a consistent view, taken over centuries, that attorney deceit in the course of litigation warrants substantial penalties—both criminal liability and treble damages. By comparison, CPLR 5015 offers a discretionary remedy that includes “restitution in like manner and subject to the same conditions as where a judgment is reversed or modified on appeal” (CPLR 5015[d]). Such relief is markedly different from that authorized by section 487, and we decline to confine a plaintiff alleging attorney deceit to the sole option of proceeding under CPLR 5015.

We appreciate that it might be more efficient to require a plaintiff who either directly or effectively challenges a judgment to return to the court that issued it and seek vacatur under CPLR 5015, and we note that transfer of a plenary action to the court that handled the underlying proceedings may be desirable where consistent with the CPLR’s venue provisions. Nor do we take lightly the interest in preserving the finality of judgments. But the legislature has singled out the specific type of claim here—an allegation of attorney deceit on the court or a party—and determined that recovery of treble damages should be available in a civil action. We conclude that section 487 must be read to allow a plenary action for deceit, even where success on that claim might undermine a separate final judgment.

Richard A. Klass, Esq.
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