legal malpractice claim in New York

2025"A cause of action to recover damages for legal malpractice accrues when the malpractice is committed, not when it is discovered" ( Alizio v Ruskin Moscou Faltischek, P.C. , 126 AD3d 733, 735 ; see McCoy v Feinman , 99 NY2d 295, 301 ). "'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'" ( Lee v Leeds, Morelli & Brown, P.C. , 233 AD3d 1072 , 1077, quoting McCoy v Feinman , 99 NY2d at 301 ; see Farage v Ehrenberg , 124 AD3d 159, 163 ).

2025"A cause of action to recover damages for legal malpractice accrues when the malpractice is committed, not when it is discovered" ( Alizio v Ruskin Moscou Faltischek, P.C. , 126 AD3d 733, 735 ; see McCoy v Feinman , 99 NY2d 295, 301 ). "'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'" ( Lee v Leeds, Morelli & Brown, P.C. , 233 AD3d 1072 , 1077, quoting McCoy v Feinman , 99 NY2d at 301 ; see Farage v Ehrenberg , 124 AD3d 159, 163 ).

2026To the extent the claim was based on allegations that defendants breached fiduciary duties based on conduct that is the same conduct that underlies the legal malpractice claim, the claim fails for the same reason as the malpractice claim — the failure to adequately allege any "but for" causation between the alleged breach and the injury ( see Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc. , 10 AD3d 267, 271 [1st Dept 2004]; see also Ozimek v DiJoseph , 204 AD3d 448, 449 [1st Dept 2022], lv denied 38 NY3d 911 [2022]).

2022The breach of fiduciary duty and breach of contract causes of action were correctly dismissed, because they were duplicative of the legal malpractice claim ( see Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc. , 10 AD3d 267, 271 [1st Dept 2004]; Mamoon v Dot Net Inc. , 135 AD3d 656, 658 [1st Dept 2016]), and no contract exists to sustain the claim for breach [*2]of contract ( see Mandarin Trading Ltd. v Wildenstein , 16 NY3d 173, 181-182 [2011]).

2017To succeed upon the legal malpractice claim, plaintiff was required to demonstrate that defendants “failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession,” that this failure was the proximate cause of actual damages to plaintiff, and that “the plaintiff would have succeeded on the merits of the underlying action but for the attorney’s negligence” (Levine v Horton, 127 AD3d 1395, 1397 [2015] [internal quotation marks and citations omitted]; see Rudolfo v Shayne, Dachs, Stanisci, Corker & *1490 Sauer, 8 NY3d 438, 442 [2007]; Miazga

2014Turning to defendant’s summary judgment motion as against plaintiff, in addition to showing an attorney-client relationship, a legal malpractice claim also requires a “demonstrat[ion] 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” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007], quoting McCoy v Feinman, 99 NY2d 295, 301 [2002]; accord Geraci v Munnelly, 85

2025A legal malpractice claim accrues "when all facts necessary to the cause of action have occurred and an injured party can obtain relief in court" (~cCo~ Feinman, 99 NY2d 295, 301 [2002] quoting Ackerman v Price Waterhouse, 84 NY2d 535, 541 [1994] [internal quotation marks omitted]) .

2021"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 NY2d 295, 301 , quoting Ackerman v Price Waterhouse , 84 NY2d 535, 541 ).

2023In order to establish a legal malpractice claim, a plaintiff must establish "three elements: (1) that the attorney was negligent; (2) that such negligence was a proximate cause of plaintiff's losses; and (3) proof of actual damages" ( Brooks v Lewin , 21 AD3d 731, 734 [1st Dept 2005], lv denied 6 NY3d 713 [2006]).

2023In order to establish a legal malpractice claim, a plaintiff must establish "three elements: (1) that the attorney was negligent; (2) that such negligence was a proximate cause of plaintiff's losses; and (3) proof of actual damages" ( Brooks v Lewin , 21 AD3d 731, 734 [1st Dept 2005], lv denied 6 NY3d 713 [2006]).

2025NO. 53 RECEIVED NYSCEF: 06/13/2025 actions which allege violations of Judiciary Law § 487 must also be dismissed for the same reasons as the legal malpractice claims (Lusk v Weinstein, 85 AD3d 445 [1st Dept 2011] [“Plaintiff's causes of action for … breach of fiduciary duty [was] properly dismissed as duplicative of the legal malpractice claim”; “[C]laim under Judiciary Law § 487 was also properly dismissed on res judicata grounds since it was predicated on the same conduct as that alleged in the legal malpractice claim”]).

2015Plaintiffs’ cause of action for breach of contract was properly dismissed as duplicative of the legal malpractice claim, since it arose out of the same set of facts as the alleged legal malpractice and did not involve distinct, additional damages (Lusk v Weinstein, 85 AD3d 445, 446 [1st Dept 2011], lv denied 17 NY3d 709 [2011]).

2017Plaintiff’s cause of action for breach of fiduciary duty arising from the same conduct was correctly dismissed as duplicative of the legal malpractice claim (see Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435, 436 [1st Dept 2011]; InKine Pharm.

2015Plaintiffs claims against Stober relating to other alleged wrongdoing in connection with the settlement agreement sound, inter alia, in negligence, unjust enrichment, breach of fiduciary duty, and breach of attorney services contract, and are duplicative of the legal malpractice claim (see Garnett v *415 Fox, Horan & Camerini, LLP, 82 AD3d 435 [1st Dept 2011]; InKine Pharm.

2024Co. v. Coleman, 305 AD2d 151, 152 (1st Dep’t 2003); Sage Realty Corp. v. Proskauser Rose LLP, 251 A.D.2d 35, 38 (1st Dep’t 1998).

2019Co. v Coleman , 305 AD2d 151 [1st Dept 2003]).

2023Defendant's representation of plaintiff in the arbitration proceeding pertained to the same subject matter as that underlying the legal malpractice claim ( see id. ; see also Davis v Cohen & Gresser, LLP , 160 AD3d 484 , 486 [1st Dept 2018], lv denied 32 NY3d 911 [2018]).

2015The motion court correctly determined that the legal malpractice claim, based on allegedly deficient tax advice provided by defendants beginning in 2005 and continuing throughout the course of its ongoing representation of plaintiff, is not time-barred (see Shumsky v Eisenstein, 96 NY2d 164, 168 [2001]; Ackerman v Price Waterhouse, 252 AD2d 179, 205-206 [1st Dept 1998]; see also Zwecker v Kulberg, 209 AD2d 514, 515 [2d Dept 1994]).

2026Rather, they amount to purely speculative and conclusory allegations of damages, which cannot form the basis for a legal malpractice claim ( see Gopstein v Bellinson Law, LLC , 227 AD3d 465 , 466 [1st Dept 2024]; Pellegrino , 291 AD2d at 63 ).

2026Possible future damages plaintiffs may sustain, if the lot-line windows are lost, are speculative and thus, cannot support a legal malpractice claim as a matter of law ( Pellegrino v File, 291 AD2d 60, 63 [1st Dept 2002], lv denied 98 NY2d 606 [2002]; see Gallet, Dreyer & Berkey, LLP v Basile, 141 AD3d 405, 405-406 [1st Dept 2016]). [*2] Plaintiffs contend that, had they known the apartment they purchased might lose its lot-line windows because of the approved plan by Panasia for a future vertical expansion, they would have neither bought nor renovated it.

2024This appeal by defendants ensued. [FN1] A legal malpractice claim requires, among other things, the existence of an attorney-client relationship between the client and the attorney ( see Maddux v Schur , 16 AD3d 873, 874 [3d Dept 2005]; Tabner v Drake , 9 AD3d 606, 609 [3d Dept 2004]).

2014A legal malpractice claim requires the existence of an attorney-client relationship (see Huffner v Ziff, Weiermiller, Hayden & Mustico, LLP, 55 AD3d 1009, 1011 [2008]; Peak v Bartlett, Pontiff, Stewart & Rhodes, P.C., 28 AD3d 1028, 1030 [2006]; Tabner v Drake, 9 AD3d 606, 609 [2004]).

2021Accepting plaintiff's averments and allegations as true ( see Leon v Martinez , 84 NY2d 83, 87-88 [1994]; Berry v Ambulance Serv. of Fulton County, Inc. , 39 AD3d 1123, 1124 [2007]) and inasmuch as the documentary evidence submitted by defendant does not conclusively refute them ( see New York State Workers' Compensation Bd. v Program Risk Mgt., Inc. , 150 AD3d 1589, 1594 [2017]), Supreme Court correctly denied that part of the motion seeking dismissal of the legal malpractice claim ( see Snyder v Brown Chiari, LLP , 116 AD3d 1116, 1117 [2014]; Soule v Lozada , 232 AD2d 825, 825 [1996]). [FN1]

2018Accepting plaintiff client's allegations as true and drawing all reasonable inferences in its favor ( see Leon v Martinez , 84 NY2d 83, 87-88 [1994]), a legal malpractice claim was sufficiently alleged ( see Fielding v Kupferman , 65 AD3d 437, 439 [1st Dept 2009]).

2017Except for damages for emotional and mental distress — which cannot be recovered on a legal malpractice claim (see Wolkstein v Morgenstern, 275 AD2d 635, 637 [1st Dept 2000]; see also Dombrowski v Bulson, 19 NY3d 347, 349, 351-352 [2012])—and punitive damages — which are “awarded only in exceptional cases” (Marinaccio v Town of Clarence, 20 NY3d 506, 511 [2013]; see also Ulico Cas.

2017However plaintiff failed to state a claim for emotional distress because the damages alleged are not pecuniary in nature (see Dombrowski v Bulson, 19 NY3d 347, 351, 352 [2012]), and the pleadings fail to allege the requisite extreme and outrageous conduct (see Hyman v Schwartz, 127 AD3d 1281, 1283-1284 [3d Dept 2015]; see also Wolkstein v Morgenstern, 275 AD2d 635, 636-637 [1st Dept 2000]).

2013It arose out of the same facts as the legal malpractice claim and did not involve any damages that were separate and distinct from those generated by the alleged malpractice (see Bernard v Proskauer Rose, LLP, 87 AD3d 412, 416 [1st Dept 2011]; Lusk v Weinstein, 85 AD3d 445 [1st Dept 2011], lv denied 17 NY3d 709 [2011]).

2013It arose out of the same facts as the legal malpractice claim and did not involve any damages that were separate and distinct from those generated by the alleged malpractice (see Bernard v Proskauer Rose, LLP, 87 AD3d 412, 416 [1st Dept 2011]; Lusk v Weinstein, 85 AD3d 445 [1st Dept 2011], lv denied 17 NY3d 709 [2011]).

2012The Supreme Court, however, properly granted that branch of the defendant’s cross motion which was pursuant to CPLR 3211 (a) (1) and (7) to dismiss the cause of action alleging breach of contract, since that claim is duplicative of the legal malpractice claim (see Ofman v Katz, 89 AD3d at 911 ; Alizio v Feldman, 82 AD3d 804, 805 [2011]; Conklin v Owen, 72 AD3d 1006, 1007 [2010]; see also Scartozzi v Potruch, 72 AD3d 787, 789 [2010]; Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562 [2003]).

2012The Supreme Court, however, properly granted that branch of the defendant’s cross motion which was pursuant to CPLR 3211 (a) (1) and (7) to dismiss the cause of action alleging breach of contract, since that claim is duplicative of the legal malpractice claim (see Ofman v Katz, 89 AD3d at 911 ; Alizio v Feldman, 82 AD3d 804, 805 [2011]; Conklin v Owen, 72 AD3d 1006, 1007 [2010]; see also Scartozzi v Potruch, 72 AD3d 787, 789 [2010]; Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562 [2003]).

2023In order to establish a legal malpractice claim, a plaintiff must establish "three elements: (1) that the attorney was negligent; (2) that such negligence was a proximate cause of plaintiff's losses; and (3) proof of actual damages" ( Brooks v Lewin , 21 AD3d 731, 734 [1st Dept 2005], lv denied 6 NY3d 713 [2006]).

2023In order to establish a legal malpractice claim, a plaintiff must establish "three elements: (1) that the attorney was negligent; (2) that such negligence was a proximate cause of plaintiff's losses; and (3) proof of actual damages" ( Brooks v Lewin , 21 AD3d 731, 734 [1st Dept 2005], lv denied 6 NY3d 713 [2006]).

2026Contrary to the contentions of the P & S defendants and the Greenberg defendants, "the [proposed] cause of action alleging violation of Judiciary Law § 487 is not duplicative of the cause of action alleging legal malpractice. 'A violation of Judiciary Law § 487 requires an intent to deceive ( see Judiciary Law § 487), whereas a legal malpractice claim is based on negligent conduct'" ( Bianco v Law Offs. of Yuri Prakhin , 189 AD3d 1326 , 1329, quoting Moormann v Perini & Hoerger , 65 AD3d 1106, 1108 ; see Bill Birds, Inc. v Stein Law Firm, P.C. , 164 AD3d at 637).

2020Under Judiciary Law § 487, an attorney who "[i]s 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. "[V]iolation of Judiciary Law § 487 requires an intent to deceive, whereas a legal malpractice claim is based on negligent conduct" ( Moormann v Perini & Hoerger , 65 AD3d 1106, 1108 [citation omitted]).

2015Where a plaintiff pleads guilty in an underlying criminal prosecution, expressly admitting his or her guilt, and that plea remains undisturbed, it precludes a legal malpractice claim as a matter of law (see Carmel v Lunney, 70 NY2d 169, 173 [1987] [“To state a cause of action for legal malpractice arising from negligent representation in a criminal proceeding, plaintiff must allege his innocence or a colorable claim of innocence of the underlying offense, for so long as the determination of his guilt of that offense remains undisturbed, no cause of action will lie.

2008There are other deficiencies in the legal malpractice claim requiring its dismissal: it does not allege that “but for” defendants’ alleged malpractice Park would not have pleaded guilty (see Carmel, 70 NY2d at 173 ); and to the extent the claim is based on the allegation that defendants affirmatively gave Park wrong advice about the immigration consequences of a guilty plea, such allegation conflicts with, and is precluded by, contrary factual findings made in the federal proceedings in which Park sought to vacate his plea on the ground of ineffective assistance of counsel (see Siddiqi v Ober,

2025"A cause of action to recover damages for legal malpractice accrues when the malpractice is committed, not when it is discovered" ( Alizio v Ruskin Moscou Faltischek, P.C. , 126 AD3d 733, 735 ; see McCoy v Feinman , 99 NY2d 295, 301 ). "'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'" ( Lee v Leeds, Morelli & Brown, P.C. , 233 AD3d 1072 , 1077, quoting McCoy v Feinman , 99 NY2d at 301 ; see Farage v Ehrenberg , 124 AD3d 159, 163 ).

2018"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 NY2d at 301 , quoting Ackerman v Price Waterhouse , 84 NY2d 535, 541 ; see Farage v Ehrenberg , 124 AD3d at 164 ).

2024The unexecuted construction contract in the record lists "Sandro Darsin c/o Sun Dragon Industries" as a party, and Sun Dragon's insurance carrier identified Darsin as the business's "principal and owner." Plaintiff's testimony that Darsin "had no [financial] means whatsoever" is insufficient to defeat causation, as "the ultimate collectability of any judgment that could have been obtained in the underlying action is not an element necessary to establish" a legal malpractice claim ( Lindenman v Kreitzer , 7 AD3d 30, 31 [1st Dept 2004]).

2022As to proximate cause, contrary to defendants' contention, proof of the collectability on a judgment is not an essential element of the legal malpractice claim, and arises after the "case within the case" has been proven ( Lindenman v Kreitzer , 7 AD3d 30, 35 [1st Dept 2004]).THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

2024This appeal by defendants ensued. [FN1] A legal malpractice claim requires, among other things, the existence of an attorney-client relationship between the client and the attorney ( see Maddux v Schur , 16 AD3d 873, 874 [3d Dept 2005]; Tabner v Drake , 9 AD3d 606, 609 [3d Dept 2004]).

2014Turning to defendant’s summary judgment motion as against plaintiff, in addition to showing an attorney-client relationship, a legal malpractice claim also requires a “demonstrat[ion] 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” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007], quoting McCoy v Feinman, 99 NY2d 295, 301 [2002]; accord Geraci v Munnelly, 85

2021Even assuming the continuous wrong doctrine applies, the claims for breach of fiduciary duty and negligent supervision are duplicative of the legal malpractice claim ( Cosmetics Plus Group, Ltd. v Traub , 105 AD3d 134, 143 [1st Dept 2013], lv denied 22 NY3d 855 [2013]; Vermont Mut.

2021Even assuming the continuous wrong doctrine applies, the claims for breach of fiduciary duty and negligent supervision are duplicative of the legal malpractice claim ( Cosmetics Plus Group, Ltd. v Traub , 105 AD3d 134, 143 [1st Dept 2013], lv denied 22 NY3d 855 [2013]; Vermont Mut.

2017Except for damages for emotional and mental distress — which cannot be recovered on a legal malpractice claim (see Wolkstein v Morgenstern, 275 AD2d 635, 637 [1st Dept 2000]; see also Dombrowski v Bulson, 19 NY3d 347, 349, 351-352 [2012])—and punitive damages — which are “awarded only in exceptional cases” (Marinaccio v Town of Clarence, 20 NY3d 506, 511 [2013]; see also Ulico Cas.

2017However plaintiff failed to state a claim for emotional distress because the damages alleged are not pecuniary in nature (see Dombrowski v Bulson, 19 NY3d 347, 351, 352 [2012]), and the pleadings fail to allege the requisite extreme and outrageous conduct (see Hyman v Schwartz, 127 AD3d 1281, 1283-1284 [3d Dept 2015]; see also Wolkstein v Morgenstern, 275 AD2d 635, 636-637 [1st Dept 2000]).