Plaintiff commenced this action pursuant to a summons and complaint filed on March 7, 2017, against Law Offices of Boris Nikhman, Esq. and Vladimir Nikhman, Esq. (Defendants), seeking damages based on alleged legal malpractice. Specifically, the complaint alleges that in October 2015, Bridge View Tower, LLC (BVT) retained Defendants to represent it in a previously commenced action in Kings County Supreme Court under Index Number 504070/14, and that Defendants failed to file a Note of Issue by February 27, 2016 which resulted in the action being dismissed.

Defendants appeared by counsel and filed an answer and counterclaims on May 5, 2017. Defendants asserted five affirmative defenses and two counterclaims for beach of contract and account stated, alleging an additional $2500.00 was due for legal services rendered.

On June 15, 2017, BVT moved for dismissal of Defendants' counterclaims. The motion was denied by the court (Kelley, J) on June 28, 2017.

BVT took no further actions to prosecute this action and on September 6, 2018, it was placed on the administrative dismissal calendar. On that date, Judge Samuels issued a written order adjourning the action to December 14, 2018, and directing that any depositions and outstanding discovery be completed by November 6, 2018.

On December 14, 2018, the action was again adjourned to March 22, 2019.

On March 20, 2019, BVT filed a notice of trial.

On March 22, 2019, the court (Headley, J) issued on order on the file stating that BVT's counsel was relieved on consent and setting a trial date for June 14, 2019. The order provided that BVT was to obtain new counsel on or before said date.

On June 14, 2019, BVT had still failed to obtain new counsel and the court adjourned the trial to September 3, 2019 and marked the matter final as against BVT. The court further noted that as a corporation, BVT was required to appear by counsel at the trial,

On September 3, 2019, BVT retained new counsel, who appeared in court and filed a notice of appearance. BVT then made an application to further adjourn the trial which was denied by the court. The trial commenced and concluded on that day, and the court reserved decision.

The Court takes judicial notice of the on line NYSCEF filings of two related actions.

The first is an action in Supreme Court under Index Number 504070/2014 (Action 1). BVT commenced Action 1 pursuant to a Summons and Complaint dated April 29, 2014. BVT was represented by Christopher R. Travis, Esq. in that action.

On April 21, 2015, BVT filed a papers labeled consent to change attorney which indicated that Mr. Travis was removed as the attorney of record and BVT would be proceeding pro se.

On June 16, 2015, a PC Order was entered providing inter alia that a note of issue would be filed by December 21, 2015.

On October 28, 2015, a compliance order was issued on consent, and Defendants signed off as the attorney of record for BVT. The order provided that BVT was to file a note of issue on or before February 27, 2016 or the action could be dismissed.

The action was dismissed.^[FN1]

On June 3, 2016, Aihong Yu, Esq. appeared on behalf of BVT and moved to vacate the dismissal, amend the complaint, add new defendants and extend BVT's time to conduct discovery.

On December 9, 2016 yet another attorney, Yan Wang appeared on behalf of BVT.

On March 23, 2017, Hon. Richard Velasquez issued an order staying the action and motion pending the outcome of a related matter under Index Number 502420/2016 (The Foreclosure Action).

This action was commenced pursuant to a summons and complaint dated February 22, 2016. [*2]BVT appeared by counsel, Aihong You and filed an answer with counterclaims on or about March 21, 2016.

BVT filed a substitution of counsel on November 13, 2016, with Yan Wang Law Group, PC being BVT's new attorneys.

On January 8, 2018, Judge Mark Partnow granted a motion striking BVT's defenses and severing BVT's counterclaims and referring the matter to a referee to compute damages.

The record at trial was scant and the facts were not clearly laid out. BVT did not offer a single document in evidence.

Michael Tong (Tong) testified for the BVT. Tong is a member of the BVT LLC. Tong testified that he was developing a property in Brooklyn and discovered some fraud on the part of the Condominium Board and brought suit on that basis. In October of 2016, BVT signed a retainer agreement with Defendants wherein Defendants agreed to represent BVT in Action 1.

Tong later became dissatisfied with Defendants' services and fired Defendants. Tong did not state the date he fired Defendants. Tong testified that he hired a new attorney Martin Kohn to represent him. Tong testified he subsequently learned his action had been dismissed and that Martin Kohn refunded his retainer agreement.

Tong testified that he believed when he hired Defendants that a foreclosure action would subsequently be brought against him and he believed Defendants would represent him when that action was brought.

Tong testified that the foreclosure action was going to be consolidated or was consolidated with his case against the Condo Board, however there was no evidence of this submitted at trial or referenced in th court filings reviewed. Tong testified that Action 1 was dismissed because of some unspecified default on the part of Defendants. Tong testified that he lost the foreclosure action and that he blamed Defendants for said loss. Tong did not testify to any alleged damages incurred as a result of his action against the Board being dismissed, but he did testify that as a result of losing the foreclosure action he suffered damages of approximately $71,000 in the form of additional fees and penalties he was required to pay.

Tong testified that BVT recommenced his action against the Condo Board and that action was still pending as of the date of this trial. Tong alleges that he was adversely impacted by the dismissal Action 1 because it was not consolidated with the trial of the foreclosure action against him.

After Tong's testimony, BVT rested and Defendants moved to dismiss. The court reserved decision on the motion.

Defendants then proceeded on their counterclaims. Vladimir Nikhman (VN) testified on behalf of Defendants. VN testified that Tong hired him in October 2015 to represent BVT in Action 1, and specifically to file an order to show cause. VN testified that he and Tong were friends and used to play poker together.

The parties signed a retainer agreement which was admitted in evidence (Ex A). BVT paid Defendants a $5000 retainer which was to be drawn down at the rate of $300 an hour for work done on Action 1. There was no provision in the retainer agreement for any billing beyond the initial $5000 retainer.

Initially, VN testified that he sent Defendants invoices every 60 days, but he produced no [*3]such invoices. VN then testified that he does not recall how often he sent Defendants invoices. VN testified that gave a document labeled "Time Sheet" to Tong as an invoice when he would come into the office. VN provided no detailed testimony about the nature of the work he did or the time he spent, or even his background and experience. VN did submit an invoice/time sheet (Ex C) however the court gives no weight to this document which is dated May 10, 2018, years after VN acknowledges he had been fired and well after the commencement of this action.

VN testified that his relationship with Tong deteriorated because Tong called him and emailed him incessantly and at inappropriate hours. VN acknowledged that Tong fired him and said that he only represented BVT for a period of three to four months.

VN testified that he and Tong had reached an agreement to do work beyond the amount of the initial $5000 retainer and that Tong gave him a check for an additional $2500.00 (Ex B). The check is marked for "Retainer" . The check was dated February 19, 2016. VN testified that at Tong's request he delayed depositing the check. Presumably shortly after receiving the check Defendants were fired. VN attempted to deposit the check on or about March 2, 2016 but Tong had put in a stop payment on the check.

BVT Failed to Establish a Prima Facie Case Against Defendants for Legal Malpractice

To establish a cause of action for legal malpractice, BVT must prove that Defendants were negligent, that such negligence was the proximate cause of actual damages sustained by BVT, and that but for Defendants' negligence, BVT would have been successful in the underlying action (Cummings v Donovan 36 AD3d 648). Speculative damages or conclusory claims are not sufficient to meet this standard ( Pellegrino v File 291 AD2d 60).

A claim for legal malpractice should be supported by expert testimony at trial (Merlin Biomed Asset Mgmt., LLC v. Wolf Block Schorr & Solis-Cohen LLP, 23 AD3d 243).

BVT's evidence at trial fell far short of this standard.

Based on the foregoing, BVT's action is dismissed.

To establish a cause of action for account stated, Defendants must demonstrate that they generated statements for BVT in the regular course of business, mailed those statements to the BVT on a monthly basis, and that the BVT accepted and retained those statements without objection for a reasonable time prior to the commencement of the action (American Express Bank FSB v Scali 142 AD3d 517, 518).

Clearly VN's testimony was insufficient to establish this. VN did not testify to any regular business practice of mailing statements to BVT and indeed failed to produce at trial any statements allegedly mailed or otherwise transmitted to BVT.

Based on the forgoing the counterclaim for account stated is dismissed.

To establish their counterclaim for breach of contract Defendants had to show the existence of a contract, their performance thereunder, BVT's breach thereof, and resulting damages (Harris v. Seward Park Hous. Corp., 79 AD3d 425, 426, 913 N.Y.S.2d 161 [1st Dept. 2010] ). Again Defendants failed to prove this claim at trial.

The complaint alleges a written contract. The only written contract was the retainer [*4]agreement, which as noted made no provision for any billing beyond the initial $5000 retainer.

No oral contract was established by Defendants at trial. While the fact that Tong tendered an additional check was established, there was no proof as to what that check was for. The check on its face indicated it was for a retainer, but a retainer for what? Additionally whatever agreement the parties had at the time the check was tendered never came to fruition as indicated by Tng's stop payment on the check.

Nor did defendants otherwise establish the right to collect an additionally $2500 in fees. As noted the only evidence was the "Time Sheet" submitted as Exhibit B, which based on the date, the court finds to have been prepared well after the events at issue and likely for the purposes of this litigation.

Based on the foregoing, Defendants' counterclaim for breach of contract is also dismissed.

In conclusion this action and the counterclaims asserted herein are dismissed with prejudice.

This constitutes the decision and order of this court.