Important for parties in litigation to appear before court on all conferences and motion hearing dates

Important for parties in litigation to appear before court on all conferences and motion hearing dates

It is very important for parties in litigation to appear before the court on all conferences and motion hearing dates. In a recent legal malpractice case (Stein v Davidow, Davidow, Siegel & Stern, LLP, 157 AD3d 741, 742–43 [2d Dept 2018] , the court denied the plaintiffs’ motion to vacate their default. The court held that:

In order to vacate a default in appearing at a scheduled court conference, a plaintiff must demonstrate both a reasonable excuse for the default and a potentially meritorious cause of action (see CPLR 5015[a] [1]; Wright v. City of Poughkeepsie, 136 A.D.3d 809, 809, 24 N.Y.S.3d 523; Mazzio v. Jennings, 128 A.D.3d 1032, 1032, 8 N.Y.S.3d 596; Hanscom v. Goldman, 109 A.D.3d 964, 965, 972 N.Y.S.2d 76). A determination of whether an excuse is reasonable lies within the sound discretion of the Supreme Court (see GMAC Mtge., LLC v. Guccione, 127 A.D.3d 1136, 1138, 9 N.Y.S.3d 83; Herrera v. MTA Bus Co., 100 A.D.3d 962, 963, 954 N.Y.S.2d 631).

 Here, the Supreme Court providently exercised its discretion in determining that the plaintiffs did not offer a reasonable excuse for their default. Neither the fact that Stein was proceeding pro se nor his claims that he was unaware of the consequences of failing to appear constitute a reasonable excuse (see U.S. Bank N.A. v. Slavinski, 78 A.D.3d 1167, 1167, 912 N.Y.S.2d 285; Dorrer v. Berry, 37 A.D.3d 519, 520, 830 N.Y.S.2d 277). The plaintiffs’ remaining arguments to support their contention that their default should be excused are improperly raised for the first time on appeal, and have not been considered by this Court *743 see Tulino v. Tulino, 148 A.D.3d 755, 757, 48 N.Y.S.3d 258; Point Holding, LLC v. Crittenden, 119 A.D.3d 918, 920, 990 N.Y.S.2d 575).

As the plaintiffs failed to offer a reasonable excuse for their default, the issue of whether the plaintiffs had a potentially meritorious cause of action need not be addressed (see U.S. Bank, N.A. v. Dorvelus, 140 A.D.3d 850, 852, 32 N.Y.S.3d 631; Vested Bus. Brokers, Ltd. v. Ragone, 131 A.D.3d 1232, 1234, 17 N.Y.S.3d 447; Abdelqader v. Abdelqader, 120 A.D.3d 1275, 1276, 993 N.Y.S.2d 71). Accordingly, the Supreme Court properly denied the plaintiffs’ motion pursuant to CPLR 5015(a)(1) to vacate their default.

– R. A. Klass
Your Court Street Lawyer

Brooklynites get lesson on consumer debt and bankruptcy from local bar association

From left: Salaria Robinson, Fern J. Finkel, Richard A. Klass and Roseann Hiebert. Brooklyn Eagle photos by Rob Abruzzese
From left: Salaria Robinson, Fern J. Finkel, Richard A. Klass and Roseann Hiebert. Brooklyn Eagle photos by Rob Abruzzese

Evidence rebutted the malpractice claim

…The court found that evidence rebutted the malpractice claim….

In an action brought by a former client against his attorneys, the court determined that the complaint failed to state a cause of action. The court found that evidence rebutted the malpractice claim. The court held,

“The conclusory allegation that, but for defendants‘ negligence, plaintiff would have successfully opposed the summary judgment motion in the foreclosure action and defended the action is insufficient to support the legal malpractice claim, because the evidentiary material reveals that plaintiff had no viable defense (see West 45th St. Venture LLC v. Ladera Partners, LLC, 2012 N.Y. Slip Op. 31834[U], 2012 WL 2951192, *7–8 [Sup. Ct. N.Y. County 2012], affd 106 A.D.3d 412, 963 N.Y.S.2d 864 [1st Dept. 2013], lv denied 22 N.Y.3d 859, 981 N.Y.S.2d 370, 4 N.E.3d 382 [2014] ).” Ladera Partners, LLC v Goldberg, Scudieri & Lindenberg, P.C., 157 AD3d 467, 467 [1st Dept 2018]

– R. A. Klass
Your Court Street Lawyer

Real estate joint venture: Nothing Ventured, Nothing Gained.

Cartoon of house exploding that illustrates article by Richard Klass, Esq. about a failed real estate development joint venture agreement in New York.



Two developers were in the business of purchasing New York State real properties for purposes of building, renovation, rehabilitation and/or construction of those properties for sale, conversion into condominiums or retain as rental properties.

The developers found a Manhattan property owned by two people. The four of them decided to enter into a joint venture – the two property owners would transfer the property into a limited liability company (LLC) to be formed and the two developers would take care of constructing three single-family townhouses on the property. They entered into a joint venture agreement laying out the terms of their deal.

Joint venture agreement…

In furtherance of their joint venture, the developers laid out money for expenses, including architect and survey fees and mortgage costs. Unfortunately, the property owners failed to transfer the property into the LLC, despite the terms of their agreement to do so.

The relationship between the four joint venturers broke down. The developers decided to sue the property owners in state court. The developers hired Richard A. Klass, Esq., Your Court Street Lawyer, to file a lawsuit against the owners. The complaint alleged that the property owners committed fraud by promising to transfer the property into the LLC but failed to do so, thereby, breaching the joint venture agreement. They also alleged that a “constructive trust” should be imposed upon the property and a court declaration that the developers were equitable owners of the property. The property owners countered that the joint venture agreement contained a clause that any disputes between them were to be submitted to arbitration and that the developers should be compelled to proceed to arbitration. The developers agreed to arbitrate their claims.

Notice of Pendency

Since the property owners did not transfer the property into the LLC pursuant to the joint venture agreement, the developers needed to ensure that the owners did not sell the property out from under them to a third party. Their fear was that, without any protection, the owners could simply sell the property to someone else and not reimburse them for the moneys they laid out and their share of profits under the joint venture agreement. To protect the developers from this happening, a Notice of Pendency (also known as a Lis Pendens) was filed against the property. A Notice of Pendency is a statutory creation under New York’s Civil Practice Law and Rules Article 65. This filing gives notice to the entire world that there is a dispute which affects the title, use or possession of real property. The filing of this Notice preserves the rights of a party from an owner transferring title to the property to someone else, as whoever buys the property is deemed to have knowledge of the dispute.

Request to Cancel Notice of Pendency

The property owners made a motion before the arbitrator to cancel the Notice of Pendency based upon their claim that it was improperly filed since the developers’ interest in the LLC to be formed was an interest in “personal” property, not real property; therefore, there were no grounds to file the Notice of Pendency in the first instance.

In response, the developers argued that the filing of the Notice of Pendency was both proper and necessary to protect their property interests. The developers cited to the case holding in Nastasi v. Nastasi, 26 AD3d 32 [2 Dept. 2005], as their basis for the arbitrator to reject the property owners’ request to cancel the Notice of Pendency. In Nastasi v. Nastasi, the appellate court considered this issue, stating that “no case has been located addressing the concept of abatement in relation to the mandatory cancellation of a notice of pendency while the action has been stayed pending arbitration.”

Action Was Not “Abated” by Arbitration

Once a Notice of Pendency has been filed against real property, CPLR 6514(a) mandates cancellation of the Notice of Pendency if the action has been “settled, discontinued or abated.” The argument in Nastasi v. Nastasi was that a motion to compel arbitration and, in effect, stay the action amounts to the action being “abated.” In rejecting this argument, the court analyzed the definition of the word “abate” as meaning “to put an end to” or “to nullify.” There is a concept that an action which has abated is dead. However, in this context, the availability of a Notice of Pendency in an action stayed pending arbitration is a perceived “loophole” not intended or foreseen by the drafters of the statute; therefore, it could not be said that the action abated or ended.

After argument by the parties, the arbitrator determined that “the notice of pendency should not be cancelled merely because this matter has been sent to arbitration as the underlying action has not been abated. Finally, Claimants [developers] have sufficiently plead an interest in the subject properties as equitable owners to allow them under CPLR 6501 to sustain the notice of pendency at this time.” Therefore, the Notice of Pendency was to remain filed against the property, preserving the developers’ rights in the property until their dispute is determined through the arbitration process.

Richard A. Klass, Esq.

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 by phone at (718) COURT●ST or at with any questions.
Prior results do not guarantee a similar outcome.

©2018 Richard A. Klass.
Marketing by The Innovation Works, Inc.
Image at top of page: Shutterstock

Underlying claim based upon speculation and could not be sustained

…claim based upon speculation…

In an action brought by a former client against his attorneys, the court determined that the complaint failed to state a cause of action. The court found that, while the complaint could be amended, the underlying claim was based upon speculation and could not be sustained. The court held,

“Nevertheless, the amended complaint must be dismissed, because plaintiff’s claim that, but for defendants’ negligence, he would have recovered the full $3 million that he was owed during the bankruptcy filed by nonparty Majestic Capital, Ltd., consists of “ gross speculations on future events ” (Sherwood Group v. Dornbush, Mensch, Mandelstam & Silverman, 191 A.D.2d 292, 294, 594 N.Y.S.2d 766 [1st Dept. 1993]; see also Heritage Partners, LLC v. Stroock & Stroock & Lavan LLP, 133 A.D.3d 428, 19 N.Y.S.3d 511 [1st Dept. 2015], lv denied 27 N.Y.3d 904, 36 N.Y.S.3d 616, 56 N.E.3d 896 [2016]; Turk v. Angel, 293 A.D.2d 284, 740 N.Y.S.2d 50 [1st Dept. 2002], lv denied 100 N.Y.2d 510, 766 N.Y.S.2d 164, 798 N.E.2d 348 [2003] ).” Hickey v Kaufman, 156 AD3d 436 [1st Dept 2017].


– R. A. Klass
Your Court Street Lawyer

Dismissal of a legal malpractice action based upon documentary evidence

Where a defendant/law firm moves for dismissal of a legal malpractice action based upon documentary evidence, it must establish that the documents are a complete defense to the other action; otherwise, the motion will be denied and the action will be permitted to go forward.

The court stated in, Hershco v Gordon & Gordon, 155 AD3d 1007 [2d Dept 2017], “A motion to dismiss on the basis of CPLR 3211(a)(1) may be granted “only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190; see 413 Throop, LLC v. Triumph, the Church of the New Age, 153 A.D.3d 1306, 1307, 61 N.Y.S.3d 307). On a motion to dismiss pursuant to CPLR 3211(a)(7), the court must accept the facts alleged in the complaint as true and afford the proponent the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see *39 Leon v. Martinez, 84 N.Y.2d 83, 87, 614 N.Y.S.2d 972, 638 N.E.2d 511; East Hampton Union Free School Dist. v. Sandpebble Bldrs., Inc., 66 A.D.3d 122, 125, 884 N.Y.S.2d 94, affd 16 N.Y.3d 775, 919 N.Y.S.2d 496, 944 N.E.2d 1135).”

– R. A. Klass
Your Court Street Lawyer

Alleged damages must be alleged with certainty

” …court emphasized that it isn’t enough to just allege damages, they must be alleged with certainty… “


In Heritage Partners LLC v Stroock & Stroock & Lavan LLP, 155 AD3d 561 [1st Dept 2017], the appellate court emphasized that it isn’t enough to just allege damages, they must be alleged with certainty and not based on speculation. The court stated:

Even if our decision in a prior action between the parties (Heritage Partners, LLC v. Stroock & Stroock & Lavan LLP, 133 A.D.3d 428, 19 N.Y.S.3d 511 [1st Dept.2015], lv. denied 27 N.Y.3d 904, 2016 WL 1692057 [2016] ) does not constitute res judicata barring the instant action (a question we need not address), the new complaint fails to state a cause of action for malpractice because it does not sufficiently allege that defendant’s negligence was the proximate cause of plaintiff’s damages. While the current complaint addresses many of the problems we noted in the prior appeal, it does not adequately address the difficulty of “obtain[ing] debtor-in-possession financing in a troubled economic climate” (Heritage Partners, LLC v. Stroock & Stroock & Lavan LLP, 133 A.D.3d at 429, 19 N.Y.S.3d 511). Plaintiffs allege that “any funding required to facilitate a bankruptcy plan would have been secured through the bankruptcy court’s issuance of a ‘superpriority lien’…. Plaintiffs’ over $71 million in equity cushion was more than sufficient to secure approval from a bankruptcy court for a superpriority lien for DIP Financing.” However, as defendants contend, it is conjecture that there would have a been a DIP lender *198 willing to finance plaintiffs’ reorganization even if the bankruptcy court gave it superpriority. Unlike In re Lake Michigan Beach Pottawattamie Resort LLC, 547 B.R. 899 (Bankr.N.D.Ill.2016), this is not a case where “the Debtor … offered to provide evidence … of lenders willing to refinance the Property and pay [the existing lender] in full” (id. at 908). Thus, like the allegations in the prior complaint, the allegations in the current complaint are “couched in terms of gross speculations on future events and point to the speculative nature of plaintiffs’ claim” (Heritage, 133 A.D.3d at 429, 19 N.Y.S.3d 511 [internal quotation marks omitted] ).

– R. A. Klass

Plaintiff claimed attorney malpracticed with regard to a settlement

In Freeman v Brecher, 2017 NY Slip Op 07949 [1st Dept Nov. 14, 2017], the plaintiff claimed that the attorney malpracticed with regard to a settlement. In affirming the dismissal of the case, the appellate court held that,

“Plaintiff’s claim for legal malpractice in connection with an underlying settlement fails to state a cause of action in the absence of allegations that the “settlement … was effectively compelled by the mistakes of [defendant] counsel” (Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 430, 554 N.Y.S.2d 487 [1st Dept.1990] ) or the result of fraud or coercion (see Beattie v. Brown & Wood, 243 A.D.2d 395, 663 N.Y.S.2d 199 [1st Dept.1997] ). Plaintiff’s equivocal denial of knowledge of the terms of the settlement is flatly contradicted by the clear terms of the settlement agreement (see Bishop v. Maurer, 33 A.D.3d 497, 499, 823 N.Y.S.2d 366 [1st Dept.2006], affd. 9 N.Y.3d 910, 844 N.Y.S.2d 165, 875 N.E.2d 883 [2007] ). Additionally, plaintiff’s speculative and conclusory allegations of proximately caused damages cannot serve as a basis for a legal malpractice claim (see Pellegrino v. File, 291 A.D.2d 60, 63, 738 N.Y.S.2d 320 [1st Dept.2002], lv. denied 98 N.Y.2d 606, 746 N.Y.S.2d 456, 774 N.E.2d 221 [2002] ). Plaintiff’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 A.D.3d 435, 436, 918 N.Y.S.2d 79 [1st Dept.2011]; InKine Pharm. Co. v. Coleman, 305 A.D.2d 151, 152, 759 N.Y.S.2d 62 [1st Dept.2003] ).”

– R. A. Klass

If attorney regularly invoices client and client doesn’t object, then court assumes “ account stated. ”

When an attorney has billed a client for legal services rendered, the attorney will presumably send the client bill at regular intervals. If the attorney does regularly invoice the client and the client doesn’t object, then the court can assume there is an “account stated.” This is what occurred in Glassman v Weinberg, 154 AD3d 407 [1st Dept 2017], where the court held:

Plaintiff made a prima facie showing of his entitlement to summary judgment on his account stated claim by providing documentary evidence of the invoices, and an affidavit stating that he sent the invoices on a monthly basis to defendant, and that defendant received the invoices and failed to object to the invoices until this litigation (see L.E.K. Consulting LLC v. Menlo Capital Group, LLC, 148 A.D.3d 527, 528, 52 N.Y.S.3d 1 [1st Dept.2017]; Morrison Cohen Singer & Weinstein, LLP v. Waters, 13 A.D.3d 51, 52, 786 N.Y.S.2d 155 [1st Dept.2004] ).

– R. A. Klass

When Lawyers Engage in a Tug-of-War

man and woman in a tug-of-war, illustrating article by Richard Klass about a law firm ’s charging lien

He was an associate at a law firm that handled cases involving workplace discrimination, including cases based upon age, disability, gender, race, religion and sexual orientation discrimination. The associate decided it was time for him to transition from the law firm to another firm in which he would become a partner. Some of the law firm’s clients whose cases were handled by the associate elected to transfer representation from the former firm to the associate’s new law firm.

Law Firm’s Charging Lien

When an attorney commences a lawsuit or appears in a lawsuit, he is deemed the “attorney of record” in the case. One of the ramifications of being the attorney of record is that the attorney has the right to maintain a “charging lien” on any recovery in the case. This right is derived both from longstanding common law and statutory law, codified in New York’s Judiciary Law Section 475, which provides:

Section 475. Attorney’s lien in action, special or other proceeding. From the commencement of an action, special or other proceeding in any court or before any state, municipal or federal department, except a department of labor, or the service of an answer containing a counterclaim, or the initiation of any means of alternative dispute resolution including, but not limited to, mediation or arbitration, or the provision of services in a settlement negotiation at any stage of the dispute, the attorney who appears for a party has a lien upon his or her client’s cause of action, claim or counterclaim, which attaches to a verdict, report, determination, decision, award, settlement, judgment or final order in his or her client’s favor, and the proceeds thereof in whatever hands they may come; and the lien cannot be affected by any settlement between the parties before or after judgment, final order or determination. The court upon the petition of the client or attorney may determine and enforce the lien.

Practically, the charging lien gives the attorney the right to collect his legal fees from any moneys recovered in the lawsuit, even once the attorney is no longer representing the client. This is based on the premise that when an attorney is dismissed without cause, he is entitled to a lien to secure payment of his reasonable fees and costs incurred prior to the date of substitution of counsel. See, Sequa Corp. v. GBJ Corp., 156 F.3d 136 [2 Cir. 1998].

Agreement to Determine the Amount of Lien

When a client discharges an attorney without cause, the attorney is entitled to recover compensation from the client measured by the fair and reasonable value of the services rendered whether that be more or less than the amount provided in the contract or retainer agreement (Matter of Montgomery, 272 NY 323 [1936\]). As between them, either can require that the compensation be a fixed dollar amount determined at the time of discharge on the basis of quantum meruit (Reubenbaum v. B. & H. Express, 6 AD2d 47 [1 Dept. 1958]) or, in the alternative, they may agree that the attorney, in lieu of a presently fixed dollar amount, will receive a contingent percentage fee determined either at the time of substitution or at the conclusion of the case. See, Lai Ling Cheng v Modansky Leasing Co., Inc., 73 NY2d 454 [1989].

In one of the cases which the associate took with him to his new law firm, the former firm retained Richard A. Klass, Esq., Your Court Street Lawyer, to enforce its charging lien. The two firms came to an agreement, which was so-ordered by the judge, that the former law firm maintained a charging lien against any recovery in the case and that the amount of that lien would be determined at the conclusion of the litigation (assuming there would be a recovery from the defendants).

Entitlement to Attorney’s Fees in Proportionate Contribution to Case

The workplace discrimination case settled and the net legal fee sat in escrow as per the attorneys’ agreement pending resolution of their division amongst the two law firms. Unfortunately, the two firms were unable to come to terms as to the percentage split and requested that the judge hold a hearing to determine the allocation of fees.

The judge granted the law firms’ request for a hearing on the issue of the charging lien. It was noted that the court’s determination would be centered on determining the proportionate contributions of both prior and substitute counsel, citing to the case of Mason v. City of New York, 2016 WL 2766652 [SDNY 2016]. As stated in Buchta v Union Endicott Cent. School Dist., 296 AD2d 688, 689–90 [3 Dept 2002], “In assessing each firm’s proportionate contribution, we focus on the time and labor spent by each, the actual work performed, the “difficulty of the questions involved, the skill required to handle the matter, the attorney’s skills and experience, [and] the effectiveness of counsel in bringing the matter to resolution.”

A hearing was held in which both the partner in the original law firm and the associate/partner in the new law firm testified as to the services rendered on behalf of the clients in the case. The prior law firm’s partner testified as to all of the intake and pre-litigation tasks performed before substitution of counsel, including compiling evidence; interviews of clients; review of vast collection of evidence including email communications, video recordings and audio recordings. The former associate testified as to all of the services he rendered both at his old and new firms. Unfortunately for the former firm, it was unable to produce contemporaneous time records for services rendered while the former associate was in its employ. Based upon the testimony of the attorneys and the documents produced at the hearing, the judge apportioned the net legal fee between the two law firms.

Practice Tip:

It is critical for attorneys to enter and keep time records for all time spent working on their cases. Contemporaneous time records are important if the attorney must file a lien or prove time spent on a case. Equally important, a law firm should ensure that its attorneys, paralegals and support staff submit their time records in case the firm needs to justify its fees on a case.

Richard A. Klass, Esq.

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 by phone at (718) COURT●ST or at with any questions.
Prior results do not guarantee a similar outcome.

©2017 Richard A. Klass.
Marketing by The Innovation Works, Inc.
Image at top of page: Shutterstock