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).

Richard A. Klass, Esq.
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Court granted the lawyer’s counterclaim for fees

Posted on February 1, 2024 by Richard Klass

In Lang v DiPaolo, 222 AD3d 856 [2d Dept 2023], the court not only upheld the dismissal of the client’s malpractice case but also granted the lawyer’s counterclaim for fees, holding:

A plaintiff seeking to recover damages for legal malpractice must prove that the defendant 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 the plaintiff to sustain actual and ascertainable damages (see McCoy v. Feinman, 99 N.Y.2d 295, 301–302, 755 N.Y.S.2d 693, 785 N.E.2d 714). “To establish causation, 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” (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; see Valley Ventures, LLC v. Joseph J. Haspel, PLLC, 102 A.D.3d 955, 956, 958 N.Y.S.2d 604). A defendant moving for 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 (see EDJ Realty, Inc. v. Siegel, 202 A.D.3d 1059, 1060, 159 N.Y.S.3d 868). Once a defendant makes this prima facie showing, the burden shifts to the plaintiff to raise a triable issue of fact (see id. at 1061, 159 N.Y.S.3d 868; Valley Ventures, LLC v. Joseph J. Haspel, PLLC, 102 A.D.3d at 956, 958 N.Y.S.2d 604).

Here, former counsel established their prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that their actions did not proximately cause the plaintiff’s alleged damages, and that subsequent counsel had a sufficient opportunity to protect the plaintiff’s rights (see Parklex Assoc. v. Flemming Zulack Williamson Zauderer, LLP, 118 A.D.3d 968, 970, 989 N.Y.S.2d 60; Katz v. Herzfeld & Rubin, P.C., 48 A.D.3d 640, 641, 853 N.Y.S.2d 104). In opposition, the plaintiff failed to raise a triable issue of fact as the plaintiff failed to address the issue of proximate cause (see Givens v. De Moya, 193 A.D.3d 691, 693, 146 N.Y.S.3d 291).

The Supreme Court also should have granted the branch of motion by former counsel which was for summary judgment on their counterclaim to recover on an account stated in the total sum of $1,610. “An account stated is an agreement between parties, based upon their prior transactions, with respect to the correctness of the account items and the specific balance due” (Citibank [South Dakota], N.A. v. Abraham, 138 A.D.3d 1053, 1056, 31 N.Y.S.3d 517; see Michael B. Shulman & Assoc., P.C. v. Canzona, 201 A.D.3d 716, 717, 161 N.Y.S.3d 291). Here, former counsel demonstrated their prima facie establishment to judgment as a matter of law on their counterclaim to recover legal fees on an account stated in the total sum of $1,610 (see Givens v. De Moya, 193 A.D.3d at 693–694, 146 N.Y.S.3d 291; Joseph W. Ryan, Jr., P.C. v. Faibish, 136 A.D.3d 984, 985, 27 N.Y.S.3d 159). In opposition, the plaintiff failed to raise a triable issue of fact.

Richard A. Klass, Esq.
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The court affirmed the motion to dismiss the client’s claims.

Posted on January 23, 2024 by Richard Klass

In Guliyev v Banilov & Assoc., P.C., 221 AD3d 589, 590-91 [2d Dept 2023], the court affirmed the motion to dismiss the client’s claims, holding:

“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 AD3d 896, 897 [2022]; see Leon v Martinez, 84 NY2d 83, 87 [1994]). “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 AD3d 849, 851-852 [2012]; see Nassau Operating Co., LLC v DeSimone, 206 AD3d 920, 925-926 [2022]).

“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 AD3d 843, 845 [2012]; see Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d 714, 716 [2022]). “The plaintiff is required to plead actual, ascertainable damages that resulted from the attorneys’ negligence” (Bua v Purcell & Ingrao, P.C., 99 AD3d at 847; see Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d at 716). “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 AD3d at 848 [citations omitted]; see Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d at 716). 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 AD3d 787, 789 [2023]; Katsoris v Bodnar & Milone, LLP, 186 AD3d 1504, 1506 [2020]). 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 AD3d 993, 994 [2021]; Shifer v Shifer, 165 AD3d 721, 723 [2018]).

Pursuant to Judiciary Law Section 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 AD3d 760, 762 [2021]). “A violation of Judiciary Law § 487 requires an intent to deceive” (Moormann v Perini & Hoerger, 65 AD3d 1106, 1108 [2009]; see Cordell Marble Falls, LLC v Kelly, 191 AD3d at 762). “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 AD3d 635, 637 [2018], affd 35 NY3d 173 [2020]; see CPLR 3016 [b]; Palmieri v Perry, Van Etten, Rozanski & Primavera, LLP, 200 AD3d 785, 787 [2021]). 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 AD3d at 787; Cordell Marble Falls, LLC v Kelly, 191 AD3d at 762).

Richard A. Klass, Esq.
Your Court Street Lawyer

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On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7)…

Posted on December 19, 2023 by Richard Klass

In Alexim Holdings, LLC v McAuliffe, 2023 NY Slip Op 05581 [2d Dept Nov. 8, 2023], the court affirmed the dismissal of a client’s legal malpractice case, holding:

On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511; Marinelli v. Sullivan Papain Block McGrath & Cannavo, P.C., 205 A.D.3d 714, 715, 169 N.Y.S.3d 90).

Here, the Supreme Court properly granted those branches of McAuliffe Law’s motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging legal malpractice, breach of contract, and breach of fiduciary duty insofar as asserted against it. The complaint failed to allege the existence of an attorney-client relationship, contractual relationship, or fiduciary relationship between the plaintiff and McAuliffe Law, which was not a party to the subject legal services agreement and did not even exist at the time of the misconduct alleged in the complaint. Thus, the complaint failed to state a cause of action sounding in, inter alia, legal malpractice or breach of fiduciary duty insofar as asserted against McAuliffe Law (see Keness v. Feldman, Kramer & Monaco, P.C., 105 A.D.3d 812, 813, 963 N.Y.S.2d 313).

The Supreme Court also properly granted those branches of the Tarbet defendants’ motion which were pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging legal malpractice, breach of fiduciary duty, and breach of contract insofar as asserted against them. “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 Keness v. Feldman, Kramer & Monaco, P.C., 105 A.D.3d at 812, 963 N.Y.S.2d 313). “A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel” (Katsoris v. Bodnar & Milone, LLP, 186 A.D.3d 1504, 1505, 131 N.Y.S.3d 89 [internal quotation marks omitted]). “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 843, 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; Katsoris v. Bodnar & Milone, LLP, 186 A.D.3d at 1506, 131 N.Y.S.3d 89). “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 adequately allege that the Tarbet defendants’ breach of their professional duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Marinelli v. Sullivan Papain Block McGrath & Cannavo, P.C., 205 A.D.3d at 716, 169 N.Y.S.3d 90; Bua v. Purcell & Ingrao, P.C., 99 A.D.3d at 848, 952 N.Y.S.2d 592; Wald v. Berwitz, 62 A.D.3d 786, 787, 880 N.Y.S.2d 293). The plaintiff’s allegations that, but for the Tarbet defendants’ alleged negligence, the plaintiff would have received a more favorable settlement offer or outcome in the underlying action were conclusory and speculative (see Katsoris v. Bodnar & Milone, LLP, 186 A.D.3d at 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). Accordingly, the complaint failed to state a cause of action to recover damages for legal malpractice insofar as asserted against the Tarbet defendants. Further, since the causes of action alleging breach of fiduciary duty and breach of contract insofar as asserted against the Tarbet defendants arose from the same operative facts as the legal malpractice cause of action and did not allege distinct damages, they were duplicative of the legal malpractice cause of action and thus, also subject to dismissal (see Cali v. Maio, 189 A.D.3d 1337, 1339, 134 N.Y.S.3d 806; Keness v. Feldman, Kramer & Monaco, P.C., 105 A.D.3d at 813, 963 N.Y.S.2d 313).

Richard A. Klass, Esq.
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