That’s the successful defense offered by the attorneys in Rosenthal v Liberty Mut. Ins. Co.
2026 NY Slip Op 05043 August 19, 2026 Appellate Division, Second Department against a client’s claim that they allowed the statute of limitations to pass. The defense succeeded.
“In October 2019, the plaintiff commenced this action against the defendants James A. McGlynn and The Law Office of James A. McGlynn, LLC (hereinafter together the defendants), among others, inter alia, to recover damages for legal malpractice the defendants allegedly committed in their representation of the plaintiff in connection with her dispute with the defendant Liberty Mutual Insurance Company (hereinafter Liberty), the holder of her homeowners’ insurance policy (hereinafter the policy). The plaintiff alleged that the defendants failed to commence an action against Liberty within two years of the date of loss, as required by the policy. The defendants asserted a counterclaim to recover damages for breach of contract, alleging unpaid legal fees, and moved for summary judgment dismissing the amended complaint insofar as asserted against them and on their counterclaim. The plaintiff cross-moved, among other things, for summary judgment on the issue of liability on the legal malpractice cause of action and dismissing the defendants’ counterclaim. In an order entered February 15, 2024, the Supreme Court, inter alia, granted the defendants’ motion and denied those branches of the plaintiff’s cross-motion. On March 13, 2024, the court entered a judgment in favor of the defendants and against the plaintiff dismissing the amended complaint insofar as asserted against the defendants and in the principal sum of $7,740 on the defendants’ counterclaim. The plaintiff appeals.”
“Here, the defendants established, prima facie, that they did not fail to exercise the skill and knowledge commonly possessed by a member of the legal profession and that it was the plaintiff’s own inaction and failure to communicate with the defendants that prevented the filing of a timely lawsuit against Liberty (see Feldman v Finkelstein & Partners, LLP, 131 AD3d 505, 506; Pedote v Kelly, 124 AD3d 855, 856). The defendants further established, prima facie, that any alleged malpractice on their part did not proximately cause the plaintiff’s damages, as she failed to comply with the conditions set forth in the policy and would not have prevailed in her action against Liberty even if timely commenced (see Dodenc v Dell & Dean, PLLC, 235 AD3d 623, 624; Buczek v Dell & Little, LLP, 127 AD3d at 1123; Valley Ventures, LLC v Joseph J. Haspel, PLLC, 102 AD3d at 956). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the amended complaint insofar as asserted against them.
The Supreme Court also properly granted that branch of the defendants’ motion which was for summary judgment on their breach of contract counterclaim. “To recover damages for breach of contract, a plaintiff must demonstrate the existence of a contract, the plaintiff’s performance pursuant to the contract, the defendant’s breach of its contractual obligations, and damages resulting from the breach” (Ben Ciccone, Inc. v Naber Elec. Corp., 214 AD3d 936, 937-938 [internal quotation marks omitted]; see Dean Bldrs. Group, P.C. v M.B. Din Constr., Inc., 186 AD3d 1612, 1614). Here, the defendants submitted, inter alia, the retainer agreement between the plaintiff and the defendants, invoices from the defendants to the plaintiff for legal services rendered, and a transcript of the plaintiff’s deposition testimony, in which she testified that she failed to pay the outstanding invoices. The defendants also submitted evidence establishing that they performed under the retainer agreement by, among other things, representing the plaintiff at her examination under oath and communicating with Liberty regarding the plaintiff’s insurance claim. These submissions were sufficient to demonstrate the defendants’ prima facie entitlement to judgment as a matter of law on their breach of contract counterclaim (see McAllister v Wayside Out-Reach Dev., Inc., 241 AD3d 539, 540; O’Keefe v Barra, 215 AD3d 1039, 1041; Finger & Finger, A Professional Corp. v Buckingham Owners, Inc., 165 AD3d 887, 888). In opposition, the plaintiff failed to raise a triable issue of fact.”