EVAN KARSCH v. FALCON RAPPAPORT BERKMAN PLLC JANE DOES (2026)

L'Abbate, Balkan, Colavita & Contini, L.L.P., Melville (James D. Spithogiannis of counsel), for appellants.

Harris Beach Murtha Cullina PLLC, New York (Brian D. Ginsberg of counsel), for respondents.

Order, Supreme Court, New York County (Paul A. Goetz, J.), entered on or about January 23, 2025, which, insofar as appealed from, denied defendants' CPLR 3211(a)(1) and (7) motion to dismiss plaintiff's first cause of action for legal malpractice, unanimously affirmed.

Plaintiffs are the co-executors of the MK Estate, which owned commercial real estate properties through a limited liability company.  Supreme Court correctly denied defendants' motion to dismiss because plaintiffs adequately pleaded their legal malpractice claims, alleging that defendant law firm provided them with incorrect legal advice regarding the tax consequences of potential sales of the commercial real estate properties.  The complaint, as supplemented by the affidavit of plaintiff Evan Karsch submitted in opposition to the motion, details the alleged engagement of defendants by plaintiffs, the legal advice and work provided by defendants relating to the estate, and plaintiffs' sale of the properties based on that advice.  These allegations are sufficient at this early stage of the proceeding to establish an attorney-client relationship between plaintiffs and defendant law firm such that the complaint survives a motion to dismiss (see Rushaid v. Pictet & Cie, 28 NY3d 316, 327 [2016];  Genesis REOC Co., LLC v. Poppel, 205 AD3d 415, 415 [1st Dept 2022] ).

Contrary to defendants' argument, their submission of a formal agreement signed by Evan Karsch engaging defendants to provide the same legal advice and work for the limited liability company that owned the commercial property and that became part of the MK Estate does not conclusively establish that no attorney-client relationship existed between plaintiffs and defendant law firm with respect to tax advice (see Hall v. Hobbick, 192 AD3d 776, 778 [2d Dept 2021] ).

Furthermore, plaintiffs adequately allege that but for defendants' deficient tax advice, upon which they reasonably relied, they would have taken another course of action and not have sustained actual and ascertainable damages in the form of undesired tax consequences from the sale of the properties (see 83 Willow, LLC v. Apollo, 187 AD3d 563, 563–564 [1st Dept 2020] ).  To survive the motion to dismiss under CPLR 3211(a)(7), plaintiffs did not have to show that they actually sustained damages, but only that damages attributable to defendants' conduct might be

reasonably inferred from the allegations of legal malpractice (see Fielding v. Kupferman, 65 AD3d 437, 442 [1st Dept 2009] ).