Kagan Lubic Lepper Findelstein & Gold LLP v 325 Fifth Ave. Condominium
Annotate this Case
Download PDF
Kagan Lubic Lepper Findelstein & Gold LLP v 325 Fifth Ave. Condominium 2015 NY Slip Op 31470(U) August 6, 2015 Supreme Court, New York County Docket Number: 151878/15 Judge: Cynthia S. Kern Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: Part 55 ----------------------------------------------------------------------x KAGAN LUBIC LEPPER FINKELSTEIN & GOLD, LLP, I Plaintiff1 -against- IndexNo. 151878/15 DECISION/ORDER 325 FIFTH A VENUE CONDOMINIUM and THE BOARD OF MANAGERS OF 325 FIFTH AVENUE CONDOMINIUM, Defendants. ---------------------------------------------------------------------------x HON. CYNTHIA S. KERN, J.S.C. Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion for:~~~~~~~~~~~~~~~~~~~ Papers Numbered Notice of Motion and Affidavits Annexed ................................... . Answering Affidavits...................................................................... Replying Affidavits...................................................................... Exhibits...................................................................................... 2 3 4 :i Plaintiff Kagan Lubic Lepper Finkelstein & Gold, LLP ("Kagan L~bic") commenced the instant action against defendants 325 Fifth Avenue Condominium ("325 Fifth") and The Board of , Managers of 325 Fifth Avenue Condominium (the "Board") seeking to recover attorney's fees ! and expenses it allegedly incurred in its representation of325 Fifth in another action. Kagan I Lubic now moves for an Order pursuant to CPLR § 3211 (a)(7) dismissing:the counterclaims I asserted by defendants. For the reasons set forth below, Kagan Lubic's motion is denied. l The relevant facts according to the complaint are as follows. On qr about February 25, 2015, Kagan Lubic filed its complaint against defendants seeking recovery of the attorney's fees and expenses it allegedly incurred in its representation of defendants. Thereafter, defendants [* 2] I filed an answer to the complaint asserting various affirmative defenses and three counterclaims • .I I for legal malpractice, violation of Judiciary Law § 487 and a declaratory judgment that plaintiff 'i committed legal malpractice and that plaintiff is not entitled to any legal ~ees for its representation of defendants. Specifically, defendants' answer alleges as follows. Defendants ~ired Kagan Lubic in October 2012 to represent them as general counsel and in an action again~! the sponsor of 325 Fifth and certain subcontractors arising from the defective design, constr~ction, sale, marketing ·! ' and management of the condominium building located at 325 Fifth Avenue, New York, New York (the "building"), which was allegedly plagued with defects from th~ outset. Defendants allege that Kagan Lubic failed to take even the most basic steps to secure remedies against those responsible for the defective design and construction of the Building and ihat for nearly two i I years, Kagan Lubic "churned the file" and generated enormous legal bills.through prolonged ' negotiations and other pre-litigation tactics that were time consuming, costly and entirely I ineffective, including, inter alia, (i) retaining duplicative, superfluous experts which caused I defendants to incur thousands of dollars in additional fees; (ii) engaging i~ futile settlement discussions for nearly eighteen months; (iii) generating enormous legal feFs by spending countless hours addressing inconsequential maintenance issues in the buiIµing which, in many ' instances, cost Jess to remediate than the time spent addressing them; (iv) :frustrating any progress I toward reaching a settlement with the sponsor with respect to the mainten~nce issues by delaying nearly four months before responding to the sponsor's offer to remediate certain conditions; (v) routinely raising additional maintenance issues which resulted in further delay and costs; and (vi) allowing nearly two years to lapse without filing a complaint in the action. Defendants further allege that "[b]ut for Kagan Lubic's dilatory tactics, the defects in the Bui,\ding would have been 2 [* 3] remediated by now, and the impaired value of the Condominium units in ~he Building resulting from the design and construction defects and ongoing litigation would ha~e been restored." I ! On a motion addressed to the sufficiency of [a pleading], the facts, pleaded are assumed to I be true and accorded every favorable inference. See Marone v. Marone, :50 N.Y.2d 481 (1980). i Moreover "a [pleading] should not be dismissed on a pleading motion so long as, when [the party's] allegations are given the benefit of every possible inference, a ca~se of action exists." Rosen v. Raum, 164 A.D.2d 809 (I st Dept. 1990). "Where a pleading is attacked for alleged inadequacy in its statements, [the] inquiry should be limited to 'whether it states in some recognizable form any cause of action known to our law."' Foley v. D'AgJstino, 21A.D.2d60, 64-65 (I 51 Dept 1977) (citing Dulberg v. Mock, 1 N.Y.2d 54, 56 (1956). As an initial matter, plaintiffs motion for an Order pursuant to CPLR § 321 l(a)(7) ' dismissing defendants' first counterclaim for legal malpractice is denied .. It is well established I that in order to state a claim for legal malpractice, "the plaintiff must plead factual allegations I which, if proven at trial, would demonstrate that counsel had breached a cjuty owed to the client [i.e. acted negligently], that the breach was the proximate cause of the injhries, and that actual damages were sustained." Dweck Law Firm, LLP v. Mann, 283 A.D.2d *92, 293 (I st Dept 2001 ). I Additionally, "the client must plead specific factual allegations establishi~g that but for counsel's deficient representation, there would have been a more favorable outcom~ to the underlying matter." Id. "Unsupported factual allegations, conclusory legal argume?t or allegations contradicted by documentation, do not suffice." Id. In the instant action, defendants' answer sufficiently states a claim for legal malpractice. The first counterclaim alleges that plaintiff"committed legal malpractice.by failing to exercise the skill and ability reasonably to be expected from a duly licensed attorney dndlor law firm engaged 3 [* 4] in the practice of law within the State of New York by, among other things, engaging in selfserving dilatory tactics that were ineffective and designed to impede settl~ment discussions and .I timely resolution of the dispute in order to generate enormous legal fees"1and that as a result of said breach, defendants have been damaged. Specifically, defendants' a~swer alleges that plaintiff negligently delayed the resolution of their claims against the sponsor and subcontractors only to increase their legal fees and that as a result, defendants have susta/ned damages, including, but not limited to, enormous legal fees and increased costs to i~vestigate and address the defective conditions throughout the building, which include expert fees and rental fees for safety bridges and construction equipment. Additionally, defendants all~ge that as a direct result of plaintiffs willful delay of the underlying claims, the building's defects' have yet to be remediated and that the building's value and defendants' access to credit pnancing has been impaired. It is well-settled that allegations that an attorney unreasonably: delayed the resolution of his client's claims are grounds for malpractice sufficient to defeat a m~tion to dismiss. See Lappin v. Greenberg, 34 A.D.3d 277, 280 (I st Dept 2006)("the complaint.I sufficiently asserts that defendants' inordinate delay ... resulted in a loss of principal attributable tb defendants' lack of ·I professional diligence"); see also VDR Realty Corp. v. Mintz, 167 A.D.2~ 986, 986-87 (4'h Dept 1990)("[flactual allegations of the complaint to the effect that defendant ~ttorney unreasonably i j delayed the prosecution of a landlord-tenant holdover proceeding and engaged in dilatory tactics, thereby increasing the attorney's fee and causing other consequential d~ages, state a cause of I action for legal malpractice.") I Plaintiffs assertion that the first counterclaim must be dismissed Jn the ground that its pre-litigation tactics were a reasonable strategic decision and thus, may n9t constitute a claim for 4 [* 5] malpractice, is without merit. Defendants do not allege that the decision! to pursue certain prelitigation tactics and settlement discussions with the sponsor was per se n\alpractice but rather that it was the manner in which that decision was implemented and pursued that constituted i malpractice. Indeed, it is well-settled that while the attorney judgment nile protects "an ·') attorney's selection of one among several reasonable courses of action" from a claim for malpractice, the immunity provided for reasonable strategic decisions do~s not extend to incompetent or bad faith implementation of that decision. See Ackerman. v. Kesselman, 100 A.D.3d 577 (2d Dept 2012); see also Pillard v. Goodman, 82 A.D.3d 5411 (I st Dept 2011 ). Plaintiffs assertion that the first counterclaim must be dismissed Jn the grounds that the i answer fails to allege that plaintiffs malpractice proximately caused defe?dants' damages and i that defendants have not been damaged for the purposes of a legal malpra¢tice claim is also without merit. To plead causation, a plaintiff must allege that defendant~' malpractice was a proximate cause of plaintiffs' damages. See Rudo!fv. Shayne, Dachs, sJnisci, Corker & Sauer, 8 i N.Y.3d 438 (2007). Additionally, it is well-settled that cognizable dama?es in a legal I malpractice action include consequential damages sustained as a result oflthe attorney's ' malpractice, including expenses such as expert fees and attorney's fees. See Escape Airports (USA). Inc. v. Kent, Beatty & Gordon LLP,79 A.D.3d 437, 439-440 (!'' i D~pt 2010); see also I Ge!fand v. Oliver, 29 A.D.3d 736 (2d Dept 2006). Here, the answer alleges that as a direct result ·1 of plaintiffs dilatory tactics and other misconduct, defendants sustained increased expert fees, I attorney's fees and construction fees. Further, plaintiffs assertion that defendants have not sustained dmpages because it "has apparently been able to litigate its claims despite any of the alleged 'dilatciry tactics,' so any delay 5 [* 6] in filing suit has obviously not caused damages to the Condominium with respect to its attempt to recover against the Sponsor" is without merit. The mere fact that defendants have continued to pursue their claims against the sponsor with a different counsel is not a defense to a legal malpractice claim as it is well-settled that a client may recover increased attorney's fees and other expenses sustained as a result of an attorney's dilatory tactics even if it is ultimately successful in the underlying proceeding. See VDR Realty Corp.,_ 167 A.D.2d at 987. Finally, plaintiffs assertion that defendants' legal malpractice claim must be dismissed as premature on the ground that the underlying lawsuit in which the alleged negligent representation occurred is still ongoing is without merit. New York courts have routinely entertained malpractice actions prior to the resolution of the underlying claim which gave rise to the malpractice claim. See Rivas v. Raymond, Schwartzberg & Assoc., P LLC, 52 A.D.3d 40 I (I" Dept 2008)(denying defendants' motion to dismiss and allowing the legal malpractice claim to proceed "even though there has not been an adverse disposition of the action"); see also Johnston v. Raskin, l 93 A.D.2d 786, 797 (2d Dept l 993)(reversing dismissal of legal malpractice claim on the basis that it was premature and holding that "contrary to the defendants' assertions, the plaintiff could commence her action although her damages were, as yet, unconfirmed.") Here, defendants' counterclaim for legal malpractice is not premature notwithstanding the fact that defendants' lawsuit against the sponsor is ongoing because defendants' malpractice damages are not contingent on the resolution of the underlying action. Additionally, plaintiffs motion for an Order pursuant to CPLR § 32 I I(a)(7) dismissing defendants' second counterclaim for a violation of Judiciary Law§ 487 on the ground that it fails to state a claim is denied. Judiciary Law§ 487(2) provides, in pertinent part, that an attorney 6 [* 7] who "willfully delays his client's suit with a view to his own gain" is guilty of a misdemeanor and may be liable in treble damages. Jn order to sustain a cause of action for.a violation of Judiciary Law§ 487(2), the pleading must allege specific facts demonstrating the attorney's alleged delay for his own gain and may not merely allege bare legal conclusions. See Bernstein v. Oppenheim & Co., P. C., 160 A.D.2d 428 (I st Dept 1990); see also Fleyshman v. Suckle & Schlesinger. PLLC, 91A.D.3d591 (2d Dept 2012). Here, defendants' answer sufficiently states a claim for a violation of Judiciary Law§ 487(2). The second counterclaim alleges that plaintiff, instead of diligef\tly and vigorously pursuing defendants' legal claims against the sponsor and the subcontractors, engaged in selfserving dilatory tactics that were designed to impede settlement discussions and the timely resolution of the dispute "in order to generate enormous legal fees with a ;view to its own gain." Specifically, defendants allege that they retained plaintiff in October 2012, after an action had been commenced by Summons with Notice in July 2012, and that from t~e outset of the I representation, plaintiff"failed to take even the most basic steps to resolve [defendants'] claims" and that "[i]nstead, for nearly two years, [plaintiff] simply churned the file and generated enormous legal bills through prolonged negotiations and other pre-litigation tactics that were time consuming, costly, and entirely ineffective," such as requiring additional unnecessary expert investigations, delaying filing a complaint for almost two years, stalling all opportunities to settle the underlying matter and continuing to attempt to settle the matter despite the knowledge that settlement attempts were futile. As these allegations are sufficient to state a claim for a violation of Judiciary Law§ 487, plaintiffs motion to dismiss the second counterclaim is denied. Finally, as this court has not dismissed defendants' counterclaim for legal malpractice, 7 [* 8] plaintiffs motion for an Order pursuant to CPLR § 321 l(a)(7) dismissinJ defendants' third i counterclaim for a declaratory judgmeni that plaintiff committed legal m~lpractice and that plaintiff is not entitled to any legal fees for its representation of defendan~s is denied. Indeed, it is well-settled that an attorney who is discharged for cause, due to misconduct or being I unreasonably lax in pursuing the client's case, has no right to compensati6n for legal services I rendered. See Campagnola v. Mulholland. Minion & Roe, 76 N.Y.2d 38":cl 990); see also Matter of Stevens, 252 A.D.2d 654 (3d Dept l 988)(finding discharge for cause w~ere attorney delayed I prosecution of case and thus was not entitled to collect attorney's fees for services rendered.) 1 Accordingly, plaintiffs motion to dismiss defendants' counterclai'lns is denied. This constitutes the decision and order of the court. Enter: ----~~~°'K~--- ' J.S.C. I CYNTHIA S. KERN ' 8 J.S.C
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
