Failed to submit evidence establishing, prima facie, the absence of at least one essential element of the legal malpractice cause of action.

In Aqua-Trol Corp. v Wilentz, Goldman & Spitzer, P.A., 197 AD3d 544 [2d Dept 2021], the court reinstated the client’s complaint for legal malpractice against its former attorneys, holding:

To succeed on a motion for summary judgment dismissing a legal malpractice action, a defendant must present evidence in admissible form establishing that at least one of the essential elements of legal malpractice cannot be satisfied (see Buczek v. Dell & Little, LLP, 127 A.D.3d 1121, 1123, 7 N.Y.S.3d 558; Valley Ventures, LLC v. Joseph J. Haspel, PLLC, 102 A.D.3d 955, 956, 958 N.Y.S.2d 604). Those elements require a showing that (1) the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and (2) the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Bells v. Foster, 83 A.D.3d 876, 877, 922 N.Y.S.2d 124; see also Bua v. Purcell & Ingrao, P.C., 99 A.D.3d 843, 845, 952 N.Y.S.2d 592). The causation element requires a showing that the injured party “ ‘would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence’ ” (Bells v. Foster, 83 A.D.3d at 877, 922 N.Y.S.2d 124, quoting Kennedy v. H. Bruce Fischer, Esq., P.C., 78 A.D.3d 1016, 1018, 912 N.Y.S.2d 590). The defendant must affirmatively demonstrate the absence of one of the elements of legal malpractice, rather than merely pointing out gaps in the plaintiff’s proof (see Quantum Corporate Funding, Ltd. v. Ellis, 126 A.D.3d 866, 871, 6 N.Y.S.3d 255).

Here, the judgment must be reversed, as the Supreme Court should have denied Wilentz’s motion for summary judgment dismissing the complaint. Wilentz failed to submit evidence establishing, prima facie, the absence of at least one essential element of the legal malpractice cause of action (see Bells v. Foster, 83 A.D.3d at 877, 922 N.Y.S.2d 124; see also Biberaj v. Acocella, 120 A.D.3d 1285, 1287, 993 N.Y.S.2d 64). Since Wilentz failed to make its prima facie showing, we do not need to consider the sufficiency of Aqua–Trol’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

The Supreme Court, however, properly denied Aqua–Trol’s cross motion for summary judgment on the issue of liability. Aqua–Trol did not establish, prima facie, that Wilentz failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession (see Schottland v. Brown Harris Stevens Brooklyn, LLC, 137 A.D.3d 995, 996–997, 27 N.Y.S.3d 259; Bells v. Foster, 83 A.D.3d at 877, 922 N.Y.S.2d 124). Since Aqua–Trol failed to satisfy its prima facie burden, we need not consider the sufficiency of Wilentz’s opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).


Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #legalmalpractice

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.

Prior results do not guarantee a similar outcome.

© 2021 Richard A. Klass

Scales of justice illustrating article about legal malpractice.

Court denied dismissal of the client’s legal malpractice claim based on the statute of limitations.

In Golden Jubilee Realty, LLC v Castro, 196 AD3d 680 [2d Dept 2021], the court denied dismissal of the client’s legal malpractice claim based on the statute of limitations, holding:

“In moving to dismiss a cause of action pursuant to CPLR 3211(a)(5) as barred by the applicable statute of limitations, the moving defendant bears the initial burden of demonstrating, prima facie, that the time within which to commence the cause of action has expired. The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable” (Stein Indus., Inc. v. Certilman Balin Adler & Hyman, LLP, 149 A.D.3d 788, 789, 51 N.Y.S.3d 183 [citations omitted]). “An action to recover damages for legal malpractice must be commenced within three years after the accrual of the cause of action” (Bullfrog, LLC v. Nolan, 102 A.D.3d 719, 719–720, 959 N.Y.S.2d 212; see CPLR 214[6]). “A legal malpractice claim accrues ‘when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court’ ” (McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714, quoting Ackerman v. Price Waterhouse, 84 N.Y.2d 535, 541, 620 N.Y.S.2d 318, 644 N.E.2d 1009).


Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #legalmalpractice #statuteoflimitations

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.

Prior results do not guarantee a similar outcome.

© 2021 Richard A. Klass

Scales of justice illustrating article about legal malpractice.

Question as to standing, sufficient to justify denial of the motion to dismiss this legal malpractice case.

In Golden Jubilee Realty, LLC v Castro, 196 AD3d 680, 681-82 [2d Dept 2021], the court held that the plaintiff raised a question as to standing to sue the attorney for malpractice sufficient to justify denial of the attorney’s motion to dismiss the case.

The Supreme Court erred in granting that branch of Pacht’s motion which was pursuant to CPLR 3211 (a) (3) to dismiss the amended complaint insofar as asserted against him based on Golden Jubilee’s alleged lack of standing. “On a defendant’s motion to dismiss the complaint based upon the plaintiff’s alleged lack of standing, the burden is on the moving defendant to establish, prima facie, the plaintiff’s lack of standing” (BAC Home Loans Servicing, LP v Rychik, 161 AD3d 924, 925 [2018]; see CPLR 3211 [a] [3]; Gobindram v Ruskin Moscou Faltischek, P.C., 175 AD3d 586, 591 [2019]). “To defeat a defendant’s motion, the plaintiff has no burden of establishing its standing as a matter of law; rather, the motion will be defeated if the plaintiff’s submissions raise a question of fact as to its standing” (Deutsche Bank Trust Co. Ams. v Vitellas, 131 AD3d 52, 60 [2015]). As relevant to this appeal, in actions where a plaintiff voluntarily commenced a bankruptcy proceeding prior to the instant action, “[t]he failure of a party to disclose a cause of action as an asset in a prior bankruptcy proceeding, which the party knew or should have known existed at the time of that proceeding, deprives him or her of ‘the legal capacity to sue subsequently on that cause of action’ ” (Potruch & Daab, LLC v Abraham, 97 AD3d 646, 647 [2012], quoting Whelan v Longo, 23 AD3d 459, 460 [2005], affd 7 NY3d 821 [2006]; see Nicke v Schwartzapfel Partners, P.C., 148 AD3d 1168, 1170 [2017]).

Here, Pacht’s submissions in support of his motion established that Golden Jubilee filed a bankruptcy petition in March 2016 which did not list the claim against Pacht as an asset, and that Golden Jubilee knew or should have known of the existence of its claim against Pacht prior to the filing of the bankruptcy petition (see Keegan v Moriarty-Morris, 153 AD3d 683, 684 [2017]; Positive Influence Fashion v City of New York, 2 AD3d 606, 606-607 [2003]). Accordingly, Pacht met his burden of establishing, prima facie, that Golden Jubilee lacked standing to bring this action against him (see Potruch & Daab, LLC v Abraham, 97 AD3d at 647). In opposition, however, the plaintiffs raised a question of fact as to Golden Jubilee’s standing, thus warranting denial of that branch of Pacht’s motion which was pursuant to CPLR 3211 (a) (3) to dismiss the amended complaint insofar as asserted against him based on Golden Jubilee’s alleged lack of standing (see Arch Bay Holdings, LLC-Series 2010B v Smith, 136 AD3d 719, 720 [2016]). The plaintiffs’ submissions established that Golden Jubilee’s bankruptcy petition was dismissed in January 2017. Thus, all property owned by Golden Jubilee, including the present claim against Pacht, revested with Golden Jubilee upon dismissal of the bankruptcy petition (see 11 USC §§ 349, 541 [a] [1]; Crawford v Franklin Credit Mgt. Corp., 758 F3d 473, 485 [2d Cir 2014]).


Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #LegalMalpractice #bankruptcy

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.

Prior results do not guarantee a similar outcome.

© 2021 Richard A. Klass

Scales of justice illustrating article about legal malpractice.

On a motion for summary judgment, movant must show that there are no triable issues of fact.

Fricano v Law Offices of Tisha Adams, LLC, 194 AD3d 1016 [2d Dept 2021] serves as a reminder that, on a motion for summary judgment, the movant must show that there are no triable issues of fact. The court held:

‘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 plaintiff to sustain actual and ascertainable damages’ ” (Iannucci v. Kucker & Bruh, LLP, 161 A.D.3d 959, 960, 77 N.Y.S.3d 118, 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). It is the defendants’ burden, as the party moving for summary judgment, to demonstrate their prima facie entitlement to judgment as a matter of law by submitting evidence conclusively establishing their defense to the action; merely pointing out gaps in the plaintiffs’ proof is not sufficient (see Bakcheva v. Law Off. of Stein & Assoc., 169 A.D.3d 624, 625, 93 N.Y.S.3d 388; Iannucci v. Kucker & Bruh, LLP, 161 A.D.3d at 960, 77 N.Y.S.3d 118). In determining a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmovant (see Pearson v. Dix McBride, LLC, 63 A.D.3d 895, 895, 883 N.Y.S.2d 53). “The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist” (id. at 895, 883 N.Y.S.2d 53 [internal quotation marks omitted]).

Here, the defendants failed to eliminate triable issues of fact as to whether their attorney-client relationship with Fricano included litigation of her insurance claim. The undated copy of an alleged retainer agreement between the defendants and Fricano, which is not signed by Adams, submitted in support of the defendants’ motion for summary judgment, failed to establish, prima facie, that the defendants did not undertake to represent Fricano in litigation against Travco (see Terio v. Spodek, 63 A.D.3d at 721, 880 N.Y.S.2d 679). Further, while the defendants met their initial burden of demonstrating that they had no contract or relationship with Lakeside (see Moran v. Hurst, 32 A.D.3d 909, 911, 822 N.Y.S.2d 564), viewing the evidence in the light most favorable to the plaintiffs, the plaintiffs’ submissions in opposition raised a triable issue of fact as to whether Adams’s words and actions created a contract and/or an attorney-client relationship between the defendants and both Fricano and Lakeside (see Biberaj v. Acocella, 120 A.D.3d 1285, 1287, 993 N.Y.S.2d 64; Terio v. Spodek, 63 A.D.3d at 721, 880 N.Y.S.2d 679).

The defendants also failed to establish, as a matter of law, that the plaintiffs could not have prevailed in an action against Travco (see Blumencranz v. Botter, 182 A.D.3d 568, 569, 120 N.Y.S.3d 829; see also 83 Willow, LLC v. Apollo, 187 A.D.3d 563, 564, 135 N.Y.S.3d 11). In support of their motion for summary judgment, the defendants did not submit a complete copy of the insurance policy, nor a copy of the underlying application for insurance coverage, and thus did not prove that Fricano misrepresented herself to Travco such that the plaintiffs would not have succeeded in a litigation disputing Travco’s denial of their claim. Moreover, even if there were no dispute as to whether Fricano made the alleged misrepresentation, the materiality of such alleged misrepresentation typically is a question of fact for the jury (see Liang v. Progressive Cas. Ins. Co., 172 A.D.3d 696, 698, 99 N.Y.S.3d 449; Zilkha v. Mutual Life Ins. Co. of N.Y., 287 A.D.2d 713, 714, 732 N.Y.S.2d 51).


Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #LegalMalpractice #issuesoffact

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.

Prior results do not guarantee a similar outcome.

© 2021 Richard A. Klass

Scales of justice illustrating article about legal malpractice.

[Her] deposition testimony in the underlying case was contrary to her opposition to the law firm’s motion for summary judgment.

In Walker v Shaevitz & Shaevitz, Esqs., 192 AD3d 1062 [2d Dept 2021], the court dismissed the client’s legal malpractice action because her deposition testimony in the underlying case was contrary to her opposition to the law firm’s motion for summary judgment. The court held:

The Supreme Court, upon reargument, properly granted the law firm’s motion for summary judgment dismissing the complaint. “ ‘In moving for summary judgment dismissing a complaint alleging legal malpractice, a defendant must present evidence establishing, prima facie, that it did not breach the duty to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, or that the plaintiff did not sustain actual and ascertainable damages as a result of such deviation’ ” (Dominguez v. Mirman, Markovits & Landau, P.C., 180 A.D.3d 646, 647, 119 N.Y.S.3d 136, quoting Mazzurco v. Gordon, 173 A.D.3d 1003, 1003, 100 N.Y.S.3d 894). Here, the law firm established its prima facie entitlement to judgment as a matter of law through the submission of the transcript of Walker’s deposition testimony in the underlying action which showed that she could not identify the cause of her fall (see Colini v. Stino, Inc., 186 A.D.3d 1610, 1611, 129 N.Y.S.3d 826; Ash v. City of New York, 109 A.D.3d 854, 856, 972 N.Y.S.2d 594) and that, even if the law firm had breached its duty to the plaintiffs, they would not have prevailed in the underlying action because Walker was unable to identify the cause of her fall without engaging in speculation (see Hamoudeh v. Mandel, 62 A.D.3d 948, 949, 880 N.Y.S.2d 674; see also Markowitz v. Kurzman Eisenberg Corbin Lever & Goodman, LLP, 82 A.D.3d 719, 719, 917 N.Y.S.2d 683).

In opposition, the plaintiffs failed to raise a triable issue of fact. Walker’s deposition testimony and affidavit in this action are contrary to her deposition testimony in the underlying action and merely raised a feigned issue of fact insufficient to defeat summary judgment (see Mallen v. Dekalb Corp., 181 A.D.3d 669, 670, 121 N.Y.S.3d 331; Dominguez v. Mirman, Markovits & Landau, P.C., 180 A.D.3d at 648, 119 N.Y.S.3d 136).

The Supreme Court also properly denied the plaintiffs’ cross motion pursuant to CPLR 3126 to impose sanctions on the law firm for spoliation. A party seeking sanctions for spoliation of evidence must demonstrate “that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party’s claim … such that the trier of fact could find that the evidence would support that claim” (Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 N.Y.3d 543, 547, 26 N.Y.S.3d 218, 46 N.E.3d 601 [internal quotation marks omitted]). Here, the plaintiffs’ reliance on the doctrine of spoliation is misplaced as the law firm was never in possession or control of the restaurant, its lighting system, or its renovation (see Burbige v. Siben & Ferber, 115 A.D.3d 632, 633, 981 N.Y.S.2d 537). Moreover, to the extent that the plaintiffs assert an independent cause of action for negligent spoliation, it is without merit as no such tort is recognized in New York law (see Vargas v. Crown Container Co., Inc., 114 A.D.3d 762, 764, 980 N.Y.S.2d 500; Hillman v. Sinha, 77 A.D.3d 887, 888, 910 N.Y.S.2d 116).


Richard A. Klass, Esq.
Your Court Street Lawyer

#CourtStreetLawyer #LegalMalpractice #litigation

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.

Prior results do not guarantee a similar outcome.

© 2021 Richard A. Klass

Scales of justice illustrating article about legal malpractice.