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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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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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).

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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).

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Independent causes of action for sanctions?

Posted on July 18, 2023 by Richard Klass

“New York does not recognize independent causes of action for sanctions under 22 NYCRR 130–1.1 or CPLR 8303–a (see 360 W. 11th LLC v. ACG Credit Co. II, LLC, 90 A.D.3d 552, 554, 935 N.Y.S.2d 289 [1st Dept. 2011]; Cerciello v. Admiral Ins. Brokerage Corp., 90 A.D.3d 967, 968, 936 N.Y.S.2d 224 [2d Dept. 2011]).” See, The N. Flatts LLC v Belkin Burden Goldman, LLP, 190 NYS3d 44, 46 [1st Dept 2023].

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The statements in the complaint must be “sufficiently particular…”

Posted on June 26, 2023 by Richard Klass

In Buchanan v Law Offices of Sheldon E. Green, P.C., 215 AD3d 793, 795 [2d Dept 2023], 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” (Dempster v. Liotti, 86 A.D.3d 169, 176, 924 N.Y.S.2d 484 [internal quotation marks omitted]; see Joseph v. Fensterman, 204 A.D.3d 766, 770, 167 N.Y.S.3d 106; Katsoris v. Bodnar & Milone, LLP, 186 A.D.3d 1504, 1506, 131 N.Y.S.3d 89; Lopez v. Lozner & Mastropietro, P.C., 166 A.D.3d 871, 873, 88 N.Y.S.3d 554). The statements in the complaint must be “sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense” (CPLR 3013; see Mid–Hudson Val. Fed. Credit Union v. Quartararo & Lois, PLLC, 31 N.Y.3d 1090, 1091, 78 N.Y.S.3d 703, 103 N.E.3d 774). “[B]are legal conclusions” do not suffice, and “[d]ismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery” (Connaughton v. Chipotle Mexican Grill, Inc., 29 N.Y.3d 137, 141–142, 53 N.Y.S.3d 598, 75 N.E.3d 1159 [internal quotation marks omitted]).

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