Court dealt with Judiciary Law Section 487.

Posted on December 8, 2023 by Richard Klass

In Guliyev v Banilov & Assoc., P.C., 198 NYS3d 400, 402-03 [2d Dept 2023], the court dealt with Judiciary Law Section 487. The court held:

“On a motion to dismiss pursuant to CPLR 3211(a)(7), the complaint must be afforded a liberal construction, the facts therein must be accepted as true, and the plaintiff must be accorded the benefit of every possible favorable inference” (Angeli v. Barket, 211 A.D.3d 896, 897, 180 N.Y.S.3d 564; see Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511). “Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate” (Rabos v. R & R Bagels & Bakery, Inc., 100 A.D.3d 849, 851–852, 955 N.Y.S.2d 109; see Nassau Operating Co., LLC v. DeSimone, 206 A.D.3d 920, 925–926, 171 N.Y.S.3d 528).

“In an action to recover damages for 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 attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages” (Bua v. Purcell & Ingrao, P.C., 99 A.D.3d 843, 845, 952 N.Y.S.2d 592; see Marinelli v. Sullivan Papain Block McGrath & Cannavo, P.C., 205 A.D.3d 714, 716, 169 N.Y.S.3d 90). “The plaintiff is required to plead actual, ascertainable damages that resulted from the attorneys’ negligence” (Bua v. Purcell & Ingrao, P.C., 99 A.D.3d at 847, 952 N.Y.S.2d 592; see Marinelli v. Sullivan Papain Block McGrath & Cannavo, P.C., 205 A.D.3d at 716, 169 N.Y.S.3d 90). “Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative” (Bua v. Purcell & Ingrao, P.C., 99 A.D.3d at 848, 952 N.Y.S.2d 592 [citations omitted]; see Marinelli v. Sullivan Papain Block McGrath & Cannavo, P.C., 205 A.D.3d at 716, 169 N.Y.S.3d 90). Here, the complaint failed to plead specific factual allegations demonstrating that, but for the defendants’ alleged negligence, there would have been a more favorable outcome in the underlying action or that the plaintiff would not have incurred any damages (see Williams v. Silverstone, 215 A.D.3d 787, 789, 185 N.Y.S.3d 699; Katsoris v. Bodnar & Milone, LLP, 186 A.D.3d 1504, 1506, 131 N.Y.S.3d 89). In addition, the plaintiff is precluded by the doctrine of collateral estoppel from relitigating the issue of whether the defendants had the authority to settle the underlying action (see CPLR 3211[a][5]; Reid v. Reid, 198 A.D.3d 993, 994, 157 N.Y.S.3d 52; Shifer v. Shifer, 165 A.D.3d 721, 723, 85 N.Y.S.3d 92).

Pursuant to Judiciary Law § 487, an attorney who is “guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” is liable to the injured party for treble damages (see Cordell Marble Falls, LLC v. Kelly, 191 A.D.3d 760, 762, 142 N.Y.S.3d 170). “A violation of Judiciary Law § 487 requires an intent to deceive” (Moormann v. Perini & Hoerger, 65 A.D.3d 1106, 1108, 886 N.Y.S.2d 49; see Cordell Marble Falls, LLC v. Kelly, 191 A.D.3d at 762, 142 N.Y.S.3d 170). “Allegations regarding an act of deceit or intent to deceive must be stated with particularity” (Bill Birds, Inc. v. Stein Law Firm, P.C., 164 A.D.3d 635, 637, 82 N.Y.S.3d 91, affd 35 N.Y.3d 173, 126 N.Y.S.3d 50, 149 N.E.3d 888; see CPLR 3016[b]; Palmieri v. Perry, Van Etten, Rozanski & Primavera, LLP, 200 A.D.3d 785, 787, 160 N.Y.S.3d 67). Here, the plaintiff’s allegations that the defendants hid true facts and acted to benefit themselves are conclusory and factually insufficient (see Palmieri v. Perry, Van Etten, Rozanski & Primavera, LLP, 200 A.D.3d at 787, 160 N.Y.S.3d 67; Cordell Marble Falls, LLC v. Kelly, 191 A.D.3d at 762, 142 N.Y.S.3d 170).

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.com with any questions.

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Acts outside the scope of retention

Posted on September 27, 2023 by Richard Klass

In Kohler v Polsky, 219 AD3d 821 [2d Dept 2023], the court held that the law firm could not be held responsible for acts outside the scope of their retention, holding:

Rule 1.2(c) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides, in relevant part, that “[a] lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances [and] the client gives informed consent.” “An attorney may not be held liable for failing to act outside the scope of the retainer” (Genesis Merchant Partners, L.P. v. Gilbride, Tusa, Last & Spellane, LLC, 157 A.D.3d 479, 482, 69 N.Y.S.3d 30; see AmBase Corp. v. Davis Polk & Wardwell, 8 N.Y.3d 428, 834 N.Y.S.2d 705, 866 N.E.2d 1033).

Here, the defendants demonstrated, prima facie, that the acts that they allegedly failed to perform were beyond the scope of the engagement letter, which was prepared by the defendants and signed by the plaintiff (see AmBase Corp. v. Davis Polk & Wardwell, 8 N.Y.3d at 435, 834 N.Y.S.2d 705, 866 N.E.2d 1033; DeNatale v. Santangelo, 65 A.D.3d 1006, 1007, 884 N.Y.S.2d 868; Turner v. Irving Finkelstein & Meirowitz, LLP, 61 A.D.3d 849, 850, 879 N.Y.S.2d 145).

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The court dealt with Judiciary Law Section 487.

Posted on September 14, 2023 by Richard Klass

In Catsiapis v Pardalis & Nohavicka, LLP, 2023 NY Slip Op 04185 [2d Dept Aug. 9, 2023], the court dealt with Judiciary Law Section 487, holding:

An action to recover damages for legal malpractice must be commenced within three years of the accrual of the cause of action regardless of whether the underlying theory is based in contract or tort (see CPLR 214[6]). An action to recover damages for attorney deceit under Judiciary Law Section 487 is subject to the six-year statute of limitations set forth in CPLR 213(1) (see Melcher v. Greenberg Traurig, LLP, 23 N.Y.3d 10, 15, 988 N.Y.S.2d 101, 11 N.E.3d 174). A legal malpractice action that also alleges a cause of action to recover damages for attorney deceit under Judiciary Law Section 487 must be dismissed as time-barred if not commenced within three years of the accrual of the cause of action, if the Judiciary Law Section 487 cause of action is premised on the same facts as the legal malpractice cause of action and does not allege distinct damages (see Benjamin v. Allstate Ins. Co., 127 A.D.3d 1120, 1121, 7 N.Y.S.3d 550; Farage v. Ehrenberg, 124 A.D.3d 159, 169, 996 N.Y.S.2d 646).

Here, the defendants demonstrated, prima facie, that the instant action was commenced after the expiration of the three-year statute of limitations applicable to the plaintiff’s legal malpractice cause of action (see CPLR 214[6]). Moreover, since the plaintiff’s causes of action alleging violations of Judiciary Law Section 487 are premised on the same facts as the legal malpractice cause of action and do not allege distinct damages, they too are barred by the three-year statute of limitations (see Benjamin v. Allstate Ins. Co., 127 A.D.3d at 1121, 7 N.Y.S.3d 550; Farage v. Ehrenberg, 124 A.D.3d at 169, 996 N.Y.S.2d 646; see also Jemima O. v. Schwartzapfel, P.C., 178 A.D.3d 474, 475, 115 N.Y.S.3d 244).

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The defendant established, prima facie, that he was not a proximate cause of the plaintiff’s alleged damages.

Posted on August 29, 2023 by Richard Klass

In Casey v Exum, 2023 NY Slip Op 04106 [2d Dept Aug. 2, 2023], the court held that a client’s malpractice action was dismissed based on speculation, holding:

A plaintiff in an action alleging legal malpractice must prove the defendant attorney’s failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession proximately caused the plaintiff to suffer damages (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; Sang Seok NA v. Schietroma, 163 A.D.3d 597, 598, 79 N.Y.S.3d 636). “A defendant seeking summary judgment dismissing a legal malpractice cause of action has the burden of establishing prima facie that he or she did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages” (Provenzano v. Cellino & Barnes, P.C., 207 A.D.3d 763, 764, 170 N.Y.S.3d 910 [internal quotation marks omitted]; see Bakcheva v. Law Offs. of Stein & Assoc., 169 A.D.3d 624, 625, 93 N.Y.S.3d 388). If the defendant meets that burden, the burden shifts to the plaintiff to raise a triable issue of fact. To establish proximate causation, the plaintiff must show that she would have prevailed in the underlying action or would not have incurred any damages, but for the defendant attorney’s negligence (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; Schiller v. Bender, Burrows & Rosenthal, LLP, 116 A.D.3d 756, 757, 983 N.Y.S.2d 594). “ ‘Mere speculation about a loss resulting from an attorney’s alleged omission is insufficient to sustain a prima facie case of legal malpractice’ ” (Alaimo v. Mongelli, 93 A.D.3d 742, 743, 940 N.Y.S.2d 669, quoting Humbert v. Allen, 89 A.D.3d 804, 806, 932 N.Y.S.2d 155).

Here, the defendant established, prima facie, that he was not a proximate cause of the plaintiff’s alleged damages (see Richmond Holdings, LLC v. David S. Frankel, P.C., 150 A.D.3d 1168, 1168, 52 N.Y.S.3d 672; Montero v. Cohen, 104 A.D.3d 654, 655, 960 N.Y.S.2d 468). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s claims that the defendant could have negotiated a more favorable settlement, that her former spouse would have accepted a settlement offer that was more favorable to her, or that she would have received a more favorable outcome at trial had she declined to enter into the settlement are conclusory and speculative (see Katsoris v. Bodnar & Milone, LLP, 186 A.D.3d 1504, 1506, 131 N.Y.S.3d 89; Janker v. Silver, Forrester & Lesser, P.C., 135 A.D.3d 908, 910, 24 N.Y.S.3d 182).

Richard A. Klass, Esq.
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…plaintiff must show that he or she would have prevailed…

Posted on August 23, 2023 by Richard Klass

In 126 Main St., LLC v Kriegsman, 2023 NY Slip Op 03758 [2d Dept July 12, 2023], the court reversed the lower court’s order and dismissed the client’s action. The court held:

“ ‘To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages’ ” (Katsoris v. Bodnar & Milone, LLP, 186 A.D.3d 1504, 1505, 131 N.Y.S.3d 89, quoting Dempster v. Liotti, 86 A.D.3d 169, 176, 924 N.Y.S.2d 484; see Silverman v. Eccleston Law, LLC, 208 A.D.3d 705, 706, 173 N.Y.S.3d 78). “To establish causation in a legal malpractice action, ‘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’ ” (Katsoris v. Bodnar & Milone, LLP, 186 A.D.3d at 1505, 131 N.Y.S.3d 89, quoting Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385). “ ‘Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative’ ” (Denisco v. Uysal, 195 A.D.3d 989, 991, 146 N.Y.S.3d 813, quoting Bua v. Purcell & Ingrao, P.C., 99 A.D.3d 843, 848, 952 N.Y.S.2d 592; see York v. Frank, 209 A.D.3d 804, 807, 176 N.Y.S.3d 133). Here, the plaintiff failed to state a cause of action to recover damages for legal malpractice because the plaintiff’s allegation that the restaurant would have had increased profits but for the defendants’ alleged malpractice is conclusory and speculative (see York v. Frank, 209 A.D.3d at 807, 176 N.Y.S.3d 133; Denisco v. Uysal, 195 A.D.3d at 991, 146 N.Y.S.3d 813).