2. Background and Procedural History
The parties and federal litigation
Calvin Gooding died in the September 11, 2001 attacks on the World Trade Center. He was survived by his wife, Rhonda Sapp-Gooding, and their children, Celia Rose Gooding and Zaya Gooding.
In 2002, Kreindler & Kreindler, LLP commenced Ashton v Al Qaeda Islamic Army, the “Ashton I action,” in the Southern District of New York on behalf of thousands of victims and family members. On August 1, 2003, anticipating that Sapp-Gooding would return a retainer agreement, the firm included her as the decedent’s personal representative and on behalf of his survivors.
Sapp-Gooding did not sign or return that agreement and had no contact with the firm between 2003 and 2020. Nevertheless, the firm continued litigation activity concerning her family’s claims:
- In 2015, it obtained a default judgment against Iran on liability in favor of the Ashton I plaintiffs.
- It subsequently sought a final judgment of $8,880,000 for the decedent’s estate.
- In 2017, it included Sapp-Gooding, individually and as estate representative, in Ashton v Kingdom of Saudia Arabia, the “Ashton II action.”
These two federal actions form the factual setting of the malpractice claim; they are not precedents establishing the malpractice rules applied on appeal.
The compensation opportunity and alleged loss
The United States Victims of State Sponsored Terrorism Fund Clarification Act of 2019 expanded access to the Victims of State Sponsored Terrorism Fund, or VSSTF, to qualifying September 11 victims, spouses, and dependents who obtained final judgments against a state sponsor of terrorism.
Sapp-Gooding subsequently retained other counsel, who discovered the Kreindler firm’s involvement in Ashton I. After that counsel unsuccessfully sought VSSTF benefits, the plaintiffs signed retainers with the Kreindler firm in February 2021.
The firm ultimately obtained final judgments totaling $43,080,791 for the plaintiffs, including $12,500,000 for Sapp-Gooding and $13,580,791 for the estate. The opinion reports VSSTF payments of $6,359.46 for Sapp-Gooding and $6,909.32 for the estate, and describes the plaintiffs’ recovery as approximately .0626% of eligible damages.
The complaint alleged that, had the attorneys obtained final judgments and filed applications before February 19, 2020, the plaintiffs would instead have received 5.8574% of eligible damages. The asserted injury was therefore a reduced fund recovery—not merely the failure to obtain favorable judgments.
The malpractice action
On July 25, 2023, Sapp-Gooding commenced this action by filing a summons with notice. The subsequent complaint asserted claims, including legal malpractice, against the firm and attorneys James P. Kreindler, Megan Wolfe Benett, Noah Kushlefsky, and Andrew Maloney. The appellate caption identifies Kushlefsky and Maloney as nonparty-appellants.
The plaintiffs moved under CPLR 306-b to extend their time to serve the summons with notice. The appellants cross-moved under CPLR 3211(a) to dismiss the complaint. Supreme Court granted the service extension and denied dismissal of the malpractice cause of action. Those rulings were affirmed insofar as appealed from.
4. Analysis: Legal Reasoning and Precedents
A. The dismissal standard preserved genuinely disputed facts
The court began with the plaintiff-favorable standard governing CPLR 3211(a)(7). Under Hughes v Vento, 226 AD3d 753, 754, and Leon v Martinez, 84 NY2d 83, 87–88, a court must construe the complaint liberally, accept its factual allegations as true, and give the plaintiff every favorable inference. The question is whether those facts fit a recognized legal theory, not whether the plaintiff has already proved the case.
Because the parties submitted evidentiary materials, the court also relied on Chen v Metropolitan Tr. Auth., 239 AD3d 589, 590. Without conversion to summary judgment, such submissions change the inquiry to whether the plaintiff actually has a cause of action. Dismissal remains inappropriate unless the movant establishes that a material factual allegation is not a fact at all and that no significant dispute exists about it.
These precedents explain the limited nature of the ruling. The submissions did not conclusively negate the alleged representation or the lost-recovery theory. Accordingly, the court allowed those issues to proceed rather than resolving them as established facts in either side’s favor.
B. An attorney-client relationship can arise through conduct
The central relationship principle came from Moran v Hurst, 32 AD3d 909, 911: neither a formal retainer nor payment of a fee is indispensable to an attorney-client relationship. Courts must examine the parties’ words and actions.
The need to establish that relationship was supported by Mid City Elec. Corp. v Peckar & Abramson, 214 AD3d 646, 648, and Siemsen v Mevorach, 160 AD3d 1004, 1005. Together, these authorities prevent two opposite errors: dispensing with the relationship requirement entirely, or treating an unsigned agreement as necessarily defeating it.
The complaint alleged affirmative professional activity rather than only an uncommunicated belief that the firm represented the plaintiffs. The firm allegedly named Sapp-Gooding in litigation, obtained a liability determination, sought estate damages, and included her in a second action.
In applying the relationship requirement to those allegations, the court cited Rann v Lerner, 160 AD2d 922, 923; Cooke v Laidlaw Adams & Peck, 126 AD2d 453, 455; and Matter of Tuthill, 256 App Div 539, 545. These authorities supported the significance of conduct evidencing undertaken representation. The opinion does not recount their underlying facts, so their role here is best understood through that proposition rather than through unstated factual analogies.
The holding remains qualified. The court did not declare that placing someone’s name in a pleading invariably establishes every element of an attorney-client relationship. Nor did it conclusively determine the scope of duties owed to each plaintiff. It held that the alleged course of representation was sufficient to withstand dismissal despite the unsigned retainer and prolonged absence of contact.
C. Favorable judgments do not necessarily eliminate a malpractice injury
The malpractice standard came from Guliyev v Banilov & Assoc., P.C., 221 AD3d 589, 590–591, and Lambro Indus., Inc. v Gilbert, 233 AD3d 765, 767. A plaintiff must establish a failure to exercise the ordinary reasonable skill and knowledge of the profession, causation, and actual, ascertainable damages.
For causation, the court again relied on Mid City Elec. Corp. v Peckar & Abramson, this time at page 649. Its formulation recognizes that malpractice may cause injury where, but for the negligence, the plaintiff would have succeeded in the underlying action or would not have sustained the claimed damages.
That alternative matters here. The plaintiffs ultimately obtained substantial judgments. Their complaint nevertheless alleged a separate financial injury: delayed completion of the judgment-and-application process caused them to miss a materially more favorable fund recovery.
The alleged causal chain was:
- The attorneys undertook the relevant representation.
- Reasonably competent handling would have produced final judgments and applications before February 19, 2020.
- Timely applications would have produced the alleged higher percentage payment.
- The delay therefore caused an identifiable financial shortfall.
The court accepted this as a viable theory at the dismissal stage. It did not independently establish the percentage entitlements, the feasibility of completing the required steps by the deadline, or the ultimate amount of any recoverable loss. Those matters remain subjects for proof.
The distinction between the 2015 liability determination and a final monetary judgment is also important. The existence of a favorable liability ruling did not itself resolve whether the plaintiffs had obtained the final judgments needed for the alleged fund opportunity.
D. The attorneys established an initial limitations defense
Under CPLR 214(6), legal-malpractice claims carry a three-year limitations period. The court cited DeStaso v Condon Resnick, LLP, 90 AD3d 809, 812, for that rule, and Shumsky v Eisenstein, 96 NY2d 164, 166, together with Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d 788, 789, for accrual when the malpractice is committed.
The burdens on a limitations dismissal motion were drawn from Bank of N.Y. Mellon v Munet, 241 AD3d 865, 866, and Board of Mgrs. of Top of the Ridge Condominiums v Uhlfelder, 240 AD3d 471, 472. The defendant must first show that the claim was commenced outside the applicable period. The plaintiff must then raise a factual question about tolling, another reason the statute is inapplicable, or timely commencement.
Here, the alleged malpractice accrued no later than February 19, 2020—the third VSSTF application deadline. The July 25, 2023 commencement date was more than three years later. Citing Tulino v Hiller, P.C., 202 AD3d 1132, 1135, and Schrull v Weis, 166 AD3d 829, 832, the court held that the attorneys satisfied their initial burden.
This is an important limitation on the plaintiffs’ victory: the court did not reject the attorneys’ accrual argument. Survival depended on a potential toll.
E. Continuous representation presented factual questions
The governing tolling rule appeared in Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d at 789, quoting Aqua-Trol Corp. v Wilentz, Goldman & Spitzer, P.A., 144 AD3d 956, 957: the period for suing is tolled while the attorney continues representing the client in the particular matter underlying the claim.
This is not a general toll for every ongoing attorney-client relationship. Collins Bros. Moving Corp. v Pierleoni, 155 AD3d 601, 603, and Goodman v Weiss, Zarett, Brofman, Sonnenklar & Levy, P.C., 199 AD3d 659, 661, require a mutual understanding that further representation is needed on the specific subject matter.
The court also cited Dellwood Dev., Ltd. v Coffinas Law Firm, PLLC, 233 AD3d 752, 753, and Potenza v Giaimo, 165 AD3d 1186, 1187. These authorities require clear indications of an ongoing, continuous, developing, and dependent relationship, which often includes efforts to correct an alleged error.
Applying that framework, the court identified two unresolved questions:
- Mutual understanding: Did the parties understand that further representation was needed concerning the same matter? The court cited Lytell v Lorusso, 74 AD3d 905, 907, and contrasted Verkowitz v Ursprung, 153 AD3d 1443, 1444, and Landow v Snow Becker Krauss, P.C., 111 AD3d 795, 796–797.
- Remedial continuity: Did the attorneys pursue a continuing course of representation intended to rectify or mitigate the alleged malpractice? The supporting authorities were Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d at 790; DeStaso v Condon Resnick, LLP, 90 AD3d at 812–813; and Gravel v Cicola, 297 AD2d 620, 621.
The comparison citations underscore the doctrine’s factual sensitivity. Neither later legal work nor an ongoing professional connection automatically establishes the toll. The relevant inquiry is continuity in the particular matter and the parties’ mutual understanding.
The February 2021 retainers and subsequent recovery efforts were part of the factual setting, but the court did not hold that a later retainer automatically revives an expired claim or conclusively establishes uninterrupted representation. It held only that the plaintiffs raised sufficient factual questions to defeat limitations-based dismissal.
F. The service extension rested on the interest of justice
CPLR 306-b permits an extension for either good cause or in the interest of justice. Under Bhatara v Kolaj, 222 AD3d 926, 930, the latter is a more flexible standard capable of accommodating mistake, confusion, or oversight when the defendant suffers no prejudice.
The Second Department upheld the extension under that interest-of-justice standard. It identified timely commencement and attempted service, a potentially meritorious claim, and no demonstrable prejudice attributable to the delay.
The court cited Bank of N.Y. v Hernandez, 243 AD3d 854, 856, and Bhatara v Kolaj, 222 AD3d at 931, in concluding that Supreme Court had providently exercised its discretion. These authorities supplied the framework for evaluating the circumstances collectively rather than treating delayed service as automatically fatal.
The service ruling should not be confused with a final determination of the limitations defense. Although the court identified timely commencement in discussing the extension, its separate limitations analysis expressly left continuous-representation questions unresolved.