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.
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Court stayed the client’s action for legal malpractice pending arbitration.

In Protostorm, Inc. v Foley & Lardner LLP, 193 AD3d 486 [1st Dept 2021], the court stayed the client’s action for legal malpractice pending arbitration between the client and attorney:

“Where there is no substantial question whether a valid agreement [to arbitrate] was made or complied with, … the court shall direct the parties to arbitrate” and its order “shall operate to stay a pending … action” (CPLR 7503[a] [emphasis added]). Once a valid arbitration agreement is identified, an arbitration should only be stayed “when the sole matter sought to be submitted to arbitration is clearly beyond the arbitrator’s power” (Silverman v. Benmor Coats, Inc., 61 N.Y.2d 299, 309, 473 N.Y.S.2d 774, 461 N.E.2d 1261 [1984] [emphasis added]). Further, where “arbitrable and nonarbitrable claims are inextricably interwoven, the proper course is to stay judicial proceedings pending completion of the arbitration, particularly where … the determination of issues in arbitration may well dispose of nonarbitrable matters” (Cohen v. Ark Asset Holdings, Inc., 268 A.D.2d 285, 286, 701 N.Y.S.2d 385 [1st Dept. 2000]; see also Lake Harbor Advisors, LLC v. Settlement Servs. Arbitration and Mediation, Inc., 175 A.D.3d 479, 105 N.Y.S.3d 520 [2d Dept. 2019]; Monotube Pile Corp. v. Pile Foundation Constr. Corp., 269 A.D.2d 531, 703 N.Y.S.2d 234 [2d Dept. 2000]).

There is no dispute that there is a valid agreement between the parties to arbitrate any dispute regarding unpaid fees. Thus, the court must compel arbitration of defendants’ claim for unpaid fees and stay this action pending completion of the arbitration (CPLR 7503[a]). Moreover, because plaintiff’s nonarbitrable malpractice claim is inextricably intertwined with the arbitrable claim for unpaid fees, the proper course is to stay the action pending completion of the arbitration (see Cohen, 268 A.D.2d at 286, 701 N.Y.S.2d 385; Lake Harbor Advisors, LLC, 175 A.D.3d at 479, 105 N.Y.S.3d 520; Monotube Pile Corp., 269 A.D.2d at 531, 703 N.Y.S.2d 234).

To the extent plaintiff argues that it cannot be forced to arbitrate its malpractice claim because it did not explicitly agree to do so, both the First and Second Departments have clearly found that a nonarbitrable issue can be decided in an arbitration when it is inextricably intertwined with an arbitrable issue, particularly where, as here, the determination of the arbitrable unpaid fees claim may dispose of the nonarbitrable malpractice claim (see Cohen, 268 A.D.2d at 286, 701 N.Y.S.2d 385; Lake Harbor Advisors, LLC, 175 A.D.3d at 480, 105 N.Y.S.3d 520; Monotube Pile Corp., 269 A.D.2d at 531–532, 703 N.Y.S.2d 234).


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Plaintiff/client failed to plead factual allegations sufficient to show the claims were not merely speculative and conclusory.

The court in Denisco v Uysal, 195 AD3d 989, 990-91 [2d Dept 2021] found that the plaintiff/client failed to plead factual allegations sufficient to show the claims were not merely speculative and conclusory, holding:

On a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must afford the complaint a liberal construction, accept the facts as 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 (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]).

“A cause of action to recover damages for legal malpractice requires proof of three elements: (1) that the defendant failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by an ordinary member of the legal community, (2) that such negligence was the proximate cause of the actual damages sustained by the plaintiff, and (3) that, but for the defendant’s negligence, the plaintiff would have been successful in the underlying action” (4777 Food Servs. Corp. v Anthony P. Gallo, P.C., 150 AD3d 1054, 1055 [2017]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). “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 AD3d 1504, 1505 [2020], quoting Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442). “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 843, 848 [2012] [citations omitted]; see Janker v Silver, Forrester & Lesser, P.C., 135 AD3d 908, 909-910 [2016]).

Here, even accepting the facts alleged in the complaint, as amplified by the plaintiff’s affidavit, as true, and according the plaintiff the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d at 87), the plaintiff failed to plead specific factual allegations demonstrating that, but for the defendants’ alleged negligence, there would have been a more favorable outcome on his workers’ compensation claim (see Katsoris v Bodnar & Milone, LLP, 186 AD3d 1504 [2020]; Janker v Silver, Forrester & Lesser, P.C., 135 AD3d at 910). The plaintiff’s allegations that the Judge who denied his workers’ compensation claim and/or the Workers’ Compensation Board would have credited certain evidence, including the testimony of alleged eyewitnesses, if such evidence had been presented by the defendants were speculative and conclusory (see Janker v Silver, Forrester & Lesser, P.C., 135 AD3d at 910; Cusimano v Wilson, Elser, Moskowitz, Edelman & Dicker LLP, 118 AD3d 542 [2014]).


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Reminder to Attorneys: explicitly confirm when representation of the client has terminated.

Schwenger v Weitz, Kleinick & Weitz, LLP, 192 AD3d 606, 607 [1st Dept 2021] serves as a good reminder to attorneys to confirm that representation of the client has terminated in explicit terms:

Where, as here, defendants were retained in writing to represent plaintiff in all proceedings before the Workers’ Compensation Board related to his claim, plaintiff made a sufficient showing of a continuing relationship with regard to that proceeding to support his contention of continuous representation (Shumsky v. Eisenstein, 96 N.Y.2d 164, 168, 726 N.Y.S.2d 365, 750 N.E.2d 67 [2001]). Defendants’ statement in an email that they would not pursue an appeal to the Third Department after having lost before the Workers’ Compensation appellate panel on the issue of whether plaintiff was an employee, did not “unequivocally” terminate the representation in the workers’ compensation matter, which remained pending following the administrative review (Riley v. Segan, Nemerov & Singer, P.C., 82 A.D.3d 572, 572, 918 N.Y.S.2d 488 [1st Dept. 2011]).


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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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[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.
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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.

Prior results do not guarantee a similar outcome.

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Arbitration: non-arbitrable issue inextricably intertwined with an arbitrable issue

The First Department, in Protostorm, Inc. v Foley & Lardner LLP, 193 AD3d 486, 487 [1st Dept 2021], held that a non-arbitrable issue can be decided in an arbitration when the issue is inextricably intertwined with the arbitrable issue. The court held:

Where there is no substantial question whether a valid agreement [to arbitrate] was made or complied with, . . . the court shall direct the parties to arbitrate” and its order “shall operate to stay a pending . . . action” (CPLR 7503 [a] [emphasis added]). Once a valid arbitration agreement is identified, an arbitration should only be stayed “when the sole matter sought to be submitted to arbitration is clearly beyond the arbitrator’s power” (Matter of Silverman [Benmor Coats], 61 NY2d 299, 309 [1984] [emphasis added]). Further, where “arbitrable and nonarbitrable claims are inextricably interwoven, the proper course is to stay judicial proceedings pending completion of the arbitration, particularly where . . . the determination of issues in arbitration may well dispose of nonarbitrable matters” (Cohen v Ark Asset Holdings, 268 AD2d 285, 286 [1st Dept 2000]; see also Lake Harbor Advisors, LLC v Settlement Servs. Arbitration & Mediation, Inc., 175 AD3d 479 [2d Dept 2019]; Matter of Monotube Pile Corp. v Pile Found. Constr. Corp., 269 AD2d 531 [2d Dept 2000]).

There is no dispute that there is a valid agreement between the parties to arbitrate any dispute regarding unpaid fees. Thus, the court must compel arbitration of defendants’ claim for unpaid fees and stay this action pending completion of the arbitration (CPLR 7503 [a]). Moreover, because plaintiff’s nonarbitrable malpractice claim is inextricably intertwined with the arbitrable claim for unpaid fees, the proper course is to stay the action pending completion of the arbitration (see Cohen, 268 AD2d at 286 **2 ; Lake Harbor Advisors, LLC, 175 AD3d at 479; Monotube Pile Corp., 269 AD2d at 531).

To the extent plaintiff argues that it cannot be forced to arbitrate its malpractice claim because it did not explicitly agree to do so, both the First and Second Departments have clearly found that a nonarbitrable issue can be decided in an arbitration when it is inextricably intertwined with an arbitrable issue, particularly where, as here, the determination of the arbitrable unpaid fees claim may dispose of the nonarbitrable malpractice claim (see Cohen, 268 AD2d at 286; Lake Harbor Advisors, LLC, 175 AD3d at 480; Monotube Pile Corp., 269 AD2d at 531-532).

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Continuous Representation Doctrine

Lavelle-Tomko v Aswad & Ingraham, 191 AD3d 1142 [3d Dept 2021] discusses the continuous representation doctrine, holding:

“An action to recover damages arising from legal malpractice must be commenced within three years after accrual” (Zorn v. Gilbert, 8 N.Y.3d 933, 933–934, 834 N.Y.S.2d 702, 866 N.E.2d 1030 [2007] [citation omitted]; see CPLR 214[6]), which occurs at the time of the injury and not at the time that the injury is discovered (see McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714 [2002]). In seeking to obtain dismissal of the action based on the statute of limitations, defendants bore the initial burden of demonstrating that the time within which to commence had expired, including establishing the date that the cause of action accrued (see Matter of Steinberg, 183 A.D.3d 1067, 1070, 124 N.Y.S.3d 98 [2020]; Haynes v. Williams, 162 A.D.3d 1377, 1378, 79 N.Y.S.3d 365 [2018], lv denied 32 N.Y.3d 906, 2018 WL 4997517 [2018]; Krog Corp. v. Vanner Group, Inc., 158 A.D.3d 914, 915, 72 N.Y.S.3d 178 [2018]). If defendants met that initial burden, “the burden then shift[ed] to … plaintiff to raise a question of fact as to whether the statute of limitations has been tolled or was otherwise inapplicable” (Krog Corp. v. Vanner Group, Inc., 158 A.D.3d at 916, 72 N.Y.S.3d 178 [internal quotation marks and citations omitted]; see International Electron Devices [USA] LLC v. Menter, Rudin & Trivelpiece, P.C., 71 A.D.3d 1512, 1512, 898 N.Y.S.2d 388 [2010]).

Defendants demonstrated, and plaintiff does not dispute, that her cause of action accrued on August 19, 2007, the date that she executed the settlement agreement in the first action. Plaintiff commenced this action on October 25, 2016, more than nine years after accrual and well beyond the three-year statute of limitations (see CPLR 214[6]). Defendants thus met their initial burden on their motion for summary judgment based on that defense (see Haynes v. Williams, 162 A.D.3d at 1378, 79 N.Y.S.3d 365). The burden then shifted to plaintiff to demonstrate that the statute of limitations was tolled or otherwise inapplicable, or at least that there is a question of fact to prevent summary judgment to defendants on that issue. Similarly, on the portion of plaintiff’s cross motion seeking dismissal of defendants’ statute of limitations defense, plaintiff had to prove as a matter of law that her action is not time-barred (see Red Zone LLC v. Cadwalader, Wickersham & Taft LLP, 27 N.Y.3d 1048, 1049–1050, 34 N.Y.S.3d 397, 54 N.E.3d 69 [2016]).

To meet her burden, plaintiff primarily relies on the continuous representation doctrine. “This doctrine applies where there is continuing trust and confidence *114 in the relationship between the parties and the attorney’s continuing representation pertains to the specific matter in which the attorney committed the alleged malpractice, not merely the continuity of a general professional relationship” (Deep v. Boies, 53 A.D.3d 948, 950, 863 N.Y.S.2d 269 [2008] [internal quotation marks and citations omitted]; see McCoy v. Feinman, 99 N.Y.2d at 306, 755 N.Y.S.2d 693, 785 N.E.2d 714; Shumsky v. Eisenstein, 96 N.Y.2d 164, 168, 726 N.Y.S.2d 365, 750 N.E.2d 67 [2001]; Deep v. Boies, 121 A.D.3d 1316, 1318, 995 N.Y.S.2d 298 [2014], lv denied 25 N.Y.3d 903, 2015 WL 1526052 [2015]). “The continuous representation doctrine tolls the statute of limitations where there is a mutual understanding of the need for further representation on the specific subject matter underlying the malpractice claim” (Zorn v. Gilbert, 8 N.Y.3d at 934, 834 N.Y.S.2d 702, 866 N.E.2d 1030 [internal quotation marks, ellipsis and citations omitted]). “For the continuous representation doctrine to apply to an action sounding in legal malpractice, there must be clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney, which often includes an attempt by the attorney to rectify an alleged act of malpractice” (International Electron Devices [USA] LLC v. Menter, Rudin & Trivelpiece, P.C., 71 A.D.3d at 1512–1513, 898 N.Y.S.2d 388 [internal quotation marks, ellipsis, brackets and citations omitted]; see Leeder v. Antonucci, 174 A.D.3d 1469, 1471, 106 N.Y.S.3d 490 [2019]; see also Matter of Lawrence, 24 N.Y.3d 320, 342–343, 998 N.Y.S.2d 698, 23 N.E.3d 965 [2014]; Creative Rest., Inc. v. Dyckman Plumbing & Heating, Inc., 184 A.D.3d 803, 805, 126 N.Y.S.3d 498 [2020]).

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Establishing a cause of action under Judiciary Law Section 487 can be difficult.

Establishing a cause of action under Judiciary Law Section 487 can be difficult. In Long Is. Med. Anesthesiology, P.C. v Rosenberg Fortuna & Laitman, LLP, 191 AD3d 864 [2d Dept 2021], the court dismissed the cause of action, holding:

An attorney is liable under Judiciary Law § 487(1) if he or she “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party.” “ ‘A cause of action alleging a violation of Judiciary Law § 487 must be pleaded with specificity’ ” (Sammy v. Haupel, 170 A.D.3d 1224, 1225, 97 N.Y.S.3d 269, quoting Betz v. Blatt, 160 A.D.3d at 698, 74 N.Y.S.3d 75). “Judiciary Law § 487 focuses on the attorney’s intent to deceive, not the deceit’s success” (Sammy v. Haupel, 170 A.D.3d at 1225, 97 N.Y.S.3d 269 [internal quotation marks omitted]; see Betz v. Blatt, 160 A.D.3d at 699, 74 N.Y.S.3d 75). Here, the Supreme Court correctly determined that, even accepting the plaintiffs’ allegations as true and giving the complaint the benefit of every favorable inference (see Arnell Constr. Corp. v. New York City Sch. Constr. Auth., 177 A.D.3d 595, 596, 112 N.Y.S.3d 169), the plaintiffs failed to plead this cause of action with sufficient particularity to withstand a motion to dismiss.

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Plaintiffs could not show that the continuous representation toll applied.

In Pace v Horowitz, 190 AD3d 619 [1st Dept 2021], the plaintiffs could not show that the continuous representation toll applied. It was held:

The court correctly determined that plaintiffs failed to show that there is an issue of fact as to whether the legal malpractice claim was timely filed based on the application of the continuous representation doctrine toll (see Marzario v. Snitow Kanfer Holzer & Millus, LLP, 178 A.D.3d 527, 528, 116 N.Y.S.3d 199 [1st Dept. 2019] ). The continuous representation doctrine toll does not apply based merely on the existence of an ongoing professional relationship, but only where the particular course of representation giving rise to the particular problems resulting in the alleged malpractice is ongoing (see Matter of Lawrence, 24 N.Y.3d 320, 341, 998 N.Y.S.2d 698, 23 N.E.3d 965 [2014]; Williamson v. PricewaterhouseCoopers LLP, 9 N.Y.3d 1, 840 N.Y.S.2d 730, 872 N.E.2d 842 [2007] ). Here, while plaintiffs allege that defendant law firm provided continuing estate administration work as part of an ongoing professional relationship of estate administration, they do not adequately allege that the particular course of representation regarding the sale of estate assets in 2007, which gave rise to the malpractice allegations, continued through February 2015, so as to make the instant malpractice claim timely filed.

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Court relied on an order as documentary evidence.

In Zeppieri v Vinson, 190 AD3d 1173 [3d Dept 2021], the court affirmed the dismissal of a legal malpractice action where the lower court relied on an order as documentary evidence. The court held:

Plaintiff Thomas J. Zeppieri is the Chief Executive Officer of plaintiff Adirondack Entertainment and Recreation, Inc. Defendant Jessica Hugabone Vinson is an attorney employed by defendant Barlett, Pontiff, Stewart & Rhodes, P.C. Plaintiffs retained defendants to represent them against Adirondack Lakeview, LLC and The Fort Henry Corp. (hereinafter collectively referred to as Adirondack Lakeview) in a property boundary dispute (hereinafter the underlying action). In the underlying action, Adirondack Lakeview alleged causes of action contending encroachment and trespass. Defendants, on plaintiffs’ behalf, answered and asserted counterclaims for adverse possession and a prescriptive easement. Following a trial in the underlying action, Supreme Court (Muller, J.), by order dated July 3, 2018, found plaintiffs liable for encroachment and trespass and dismissed plaintiffs’ counterclaims as meritless.

Thereafter, plaintiffs commenced this action for legal malpractice. The primary contention in the amended complaint was that Vinson failed to object to inadmissible hearsay testimony by Robert F. Flacke, Adirondack Lakeview’s president, and that such testimony destroyed their counterclaims for adverse possession and easement by prescription. Defendants moved, pre-answer, to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7) and 3013, arguing, among other things, that plaintiffs’ claims were vague, conclusory and otherwise refuted by documentary evidence. Supreme Court (McGrath, J.) found that the July 2018 order constituted documentary evidence that directly refuted plaintiffs’ primary allegation of malpractice and that the remaining allegations were conclusory. As such, Supreme Court granted defendants’ motion to dismiss the amended complaint. Plaintiffs appeal arguing that Supreme Court erred in relying on impermissible documentary evidence.

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. 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 [2007] [internal quotation marks and citations omitted]; see Mid–Hudson Val. Fed. Credit Union v. Quartararo & Lois, PLLC, 155 A.D.3d 1218, 1219–1220, 64 N.Y.S.3d 389 [2017], affd 31 N.Y.3d 1090, 78 N.Y.S.3d 703, 103 N.E.3d 774 [2018] ). When determining whether a complaint fails to state a cause of action, “the court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide the plaintiff the benefit of every possible inference” (MLB Constr. Servs., LLC v. Lake Ave. Plaza, LLC, 156 A.D.3d 983, 984, 66 N.Y.S.3d 568 [2017] [internal quotation marks, brackets and citations omitted]; see Sim v. Farley Equip. Co. LLC, 138 A.D.3d 1228, 1228, 30 N.Y.S.3d 736 [2016] ). “However, allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration” (Myers v. Schneiderman, 30 N.Y.3d 1, 11, 62 N.Y.S.3d 838, 85 N.E.3d 57 [2017] [internal quotation marks and citations omitted]; see Wisdom v. Reoco, LLC, 162 A.D.3d 1380, 1381, 79 N.Y.S.3d 717 [2018] ).

“A motion pursuant to CPLR 3211(a)(1) to dismiss the complaint as barred by documentary evidence may be properly granted only if the documentary evidence utterly refutes the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law. To qualify as documentary evidence, the evidence must be unambiguous and of undisputed authenticity” (Koziatek v. SJB Dev. Inc., 172 A.D.3d 1486, 1486, 99 N.Y.S.3d 480 [2019] [internal quotation marks and citations omitted] ). “[I]t is clear that judicial records, as well as … any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” (Jenkins v. Jenkins, 145 A.D.3d 1231, 1234, 44 N.Y.S.3d 223 [2016] [internal quotation marks and citations omitted]; see Magee–Boyle v. Reliastar Life Ins. Co. of N.Y., 173 A.D.3d 1157, 1159, 105 N.Y.S.3d 90 [2019] [internal quotation marks, brackets and citation omitted] ).

In support of their motion, defendants submitted the July 2018 order, the transcript of the bench trial and an email that had been accepted into evidence. The July 2018 order clearly qualifies as documentary evidence. As Supreme Court observed, the July 2018 order “refutes plaintiffs’ primary contention that defendants’ failure to object to Flacke’s testimony was the proximate cause of plaintiffs’ damages.” Where Supreme Court specifically states that its order is based on the decision from the underlying action, we find ourselves with “the proper case” in which a judicial record qualifies as appropriate documentary evidence sufficient to defeat the action (Jenkins v. Jenkins, 145 A.D.3d at 1234, 44 N.Y.S.3d 223). Moreover, even if the court also relied on the underlying transcript, contrary to plaintiff’s contention, there is no per se prohibition on said reliance, where, as here, the contents of the transcript are undeniable (see Tyree v. Castrovinci, 164 A.D.3d 1399, 1400, 81 N.Y.S.3d 741 [2018] ). We agree that Supreme Court properly granted defendants’ motion to dismiss the amended complaint based upon documentary evidence (see Ganje v. Yusuf, 133 A.D.3d 954, 957, 19 N.Y.S.3d 355 [2015]; Doller v. Prescott, 167 A.D.3d 1298, 1300, 91 N.Y.S.3d 533 [2018] ). Given our finding, the remainder of plaintiffs’ arguments are academic.

R. A. Klass
Your Court Street Lawyer

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