SUPERIOR COURT OF NEW JERSEY 

 APPELLATE DIVISION 

 DOCKET NO. A-2718-20 

FRANK ANGRISANI, 

 Plaintiff-Appellant, 

v.

KEVIN M. COSTELLO, ESQ., 

and COSTELLO & MAINS, LLC, 

 Defendants-Respondents. 

______________________________

Argued November 14, 2023 – Decided December 6, 2023 

Before Judges Haas and Puglisi. 

On appeal from the Superior Court of New Jersey, Law 

Division, Bergen County, Docket No. L-6033-18.

Frank Angrisani, appellant, argued the cause pro se

(Ernest W. Schoellkopff, on the briefs). 

Peter M. Perkowski, Jr., argued the cause for 

respondents (Riker Danzig Scherer Hyland & Perretti, 

LLP, attorneys; Lance Jon Kalik, of counsel and on the 

brief; Peter M. Perkowski, Jr., and Venanzio Edward

Cortese, on the brief). 

PER CURIAM 

NOT FOR PUBLICATION WITHOUT THE 

APPROVAL OF THE APPELLATE DIVISION 

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
2 A-2718-20

 In this legal malpractice case, plaintiff Frank Angrisani appeals from the 

Law Division's orders dismissing his complaint against his former attorneys, 

defendants Kevin M. Costello and his law firm Costello & Mains, LLC. The 

origins of this case go back to plaintiff's 2010 settlement of his lawsuit against 

Financial Technology Ventures, LP (FTV), where plaintiff sought damages for 

his financial losses as a result of Nexxar's acquisition of a Brazilian money 

transfer company, Uno Money Transfer Co. (Uno), as well as the termination of 

his employment as CEO of Nexxar. 

Plaintiff retained Larry Orloff, Esq. and his firm Orloff, Lowenbach, 

Stifelman & Siegel, PA. (collectively OLSS) to prosecute his claims against 

FTV and Nexxar. OLSS withdrew from representing plaintiff, and he retained 

defendants to continue to pursue the litigation. That action ended with a 

settlement. 

Discontented with his settlement, plaintiff claimed legal malpractice 

against OLSS in a prior lawsuit that was dismissed. On August 17, 2018, 

plaintiff filed a five-count legal malpractice complaint against defendants. 

Plaintiff alleged that defendants improperly recommended an insufficient 

settlement in plaintiff's underlying litigation against FTV and Nexxar, and failed 
3 A-2718-20

to file suit against two other law firms, Pillsbury Winthrop (Pillsbury) and Sills 

Cummis (Sills), the attorneys for the parties to the joint venture with Nexxar. 

In a trio of orders, the trial court dismissed each of these claims. The 

court found that plaintiff's allegations about defendants' handling and settlement 

of the FTV and Nexxar litigation, and his claim that defendants failed to sue 

Pillsbury were barred by the statute of limitations. The court also found that 

plaintiff's arguments concerning Sills failed for lack of proximate cause. The 

court further ruled that all three claims were barred by the doctrine of collateral 

estoppel. 

Plaintiff challenges all of the trial court's rulings on appeal. Having 

considered his contentions in light of the record and the applicable law, we 

affirm. 

I.

A. Background 

The parties are fully familiar with the underlying procedural history and 

facts of this matter. Therefore, we will summarize only the most salient points 

here. 

The essential background of the litigation that spawned plaintiff's legal 

malpractice action in this appeal are as follows: 
4 A-2718-20

[Plaintiff], an expert in the field of worldwide money 

transfers, developed a business plan that resulted in his 

creation of a wholly owned corporation, Axxa Group,

Inc. (AGI), in which he deposited his intellectual 

property and related business plan information. After 

forming AGI, he initiated a search for venture capital 

partners willing to invest in the new company. 

Eventually [plaintiff] entered into an agreement with 

[FTV]. [Plaintiff] continued to serve as chief executive 

officer and president of AGI, and was a member of its 

board of directors. 

In order to develop the business, FTV approved AGI's 

acquisition of a Brazilian money transfer company, 

[Uno]. [Plaintiff's] authorization to participate in the 

ensuing due diligence inquiry, prior to the company's 

acquisition, is disputed. It is not disputed that the 

company was acquired in November 2003. AGI 

subsequently changed its name to [Nexxar]. [Plaintiff] 

turned his AGI stock over to the new venture. 

. . . . 

After acquisition, it was learned Uno's operation was 

illegal under Brazilian law, and possibly under 

American law as well. When [plaintiff] advised the

Nexxar board of Uno's illegality, he claims he was 

terminated as a result. 

From 2006 to 2010, OLSS, and Orloff individually, 

represented [plaintiff] in lawsuits against FTV and

Nexxar seeking to recover damages for [plaintiff's]

significant financial losses as a result of Nexxar's 

financially disastrous acquisition of Uno, as well as 

from his termination of employment. [OLSS] withdrew 

from representing [plaintiff] in 2010. 
5 A-2718-20

[Orloff, Lowenbach, Stifelman & Siegel, PA v. 

Angrisani, No. A-3724-13 (App. Div. Feb. 12, 2016) 

(slip op. at 2-3), certif. denied, 226 N.J. 211 (2016).]

 In May 2010, plaintiff retained defendants to represent him in the FTV 

litigation after OLSS was relieved as counsel. In June 2010, defendants 

attempted to reopen discovery, but that motion was denied due to the age of the 

case. Thereafter, defendants advised plaintiff to settle his claims in the FTV 

litigation and to file a legal malpractice claim against OLSS. 

According to plaintiff, defendants advised him that they "could not try the 

case against FTV because of Orloff's legal malpractice in failing to take certain 

depositions and take certain actions with regard to evidence and discovery," and 

therefore, plaintiff had "'no choice' but to settle the case and then pursue a legal 

malpractice claim against [OLSS]." Plaintiff "was reluctant to settle the case" 

but, based on defendants' advice, authorized them to settle the FTV litigation. 

On September 14, 2010, plaintiff settled the FTV litigation for $800,000. 

On that same date, plaintiff executed a "Settlement Agreement and Mutual 

Release of Claims," which contained the following disclaimer directly above 

plaintiff's signature line: 

CAUTION: THIS IS A RELEASE OF ALL CLAIMS; 

READ BEFORE SIGNING 
6 A-2718-20

I have read the foregoing Settlement Agreement and 

Release of Claims, and I understand its contents. I have 

reviewed the entire document with my attorney, and 

understanding its terms and conditions, agree to abide 

by it. 

On September 24, 2010, the parties, through their respective attorneys, executed 

a stipulation of dismissal with prejudice, dismissing the FTV litigation with 

prejudice. 

B. The OLSS Legal Malpractice Litigation 

 After settling the FTV litigation, plaintiff retained defendants to sue OLSS 

for legal malpractice. After OLSS first sued plaintiff for unpaid legal bills, 

defendants filed plaintiff's answer to the complaint and a counterclaim against 

OLSS for legal malpractice. Plaintiff later hired Leo B. Dubler, Esq. to serve as 

co-counsel with defendants. 

 In June 2012, defendants recognized that Dubler was doing the bulk of the 

work and they moved to be relieved as plaintiff's counsel. Plaintiff agreed and 

the trial court issued an order relieving defendants as plaintiff's attorneys. 

Dubler was plaintiff's sole attorney in the litigation from that point forward. 1

1

 Plaintiff subsequently sued Dubler and several other attorneys for legal 

malpractice. 
7 A-2718-20

 On November 26, 2013, the trial court granted OLSS summary judgment, 

dismissing all of plaintiff's legal malpractice claims. Plaintiff appealed and we 

affirmed in a February 12, 2016 decision. Orloff, (slip op. at 1). 

C. The Present Litigation 

 Plaintiff filed the instant action on August 17, 2018, alleging defendants 

had been negligent in representing him in the FTV litigation. Plaintiff's claims 

of legal malpractice were essentially two-fold: first, defendants improperly 

advised him not to pursue his claims in the FTV litigation to judgment, but rather 

to accept a settlement that did not reflect their true value and then to sue Orloff 

and OLSS for negligence; and second, defendants failed to advise him of 

potential claims against Pillsbury and Sills and allowed the statute of limitations 

to run on those claims. 

 The trial court dismissed plaintiff's legal malpractice claims against 

defendants in three separate motions over the course of two years. We address 

each of plaintiff's challenges to those rulings in turn. 

II. 

 Plaintiff first contends that the trial court erred by dismissing his legal 

malpractice claim for the insufficient settlement. Because plaintiff's claim on 
8 A-2718-20

this point was clearly barred by the six-year statute of limitations, we affirm the 

court's dismissal of that claim. 

To present a prima facie legal malpractice claim, a claimant must establish 

"(1) the existence of an attorney-client relationship creating a duty of care upon 

the attorney; (2) the breach of that duty; and (3) proximate causation." Conklin 

v. Hannoch Weisman, 145 N.J. 395, 416 (1996); Fitzgerald v. Linnus, 336 N.J. 

Super. 458, 467 (App. Div. 2001). Proximate cause is established by showing 

that the negligent conduct was a substantial factor in causing the claimant's 

damages. Conklin, 145 N.J. at 419-22. In order to survive a motion for summary 

judgment, a legal malpractice plaintiff must show that he or she could have 

presented a prima facie case in the matter in which the malpractice allegedly 

occurred. Jerista v. Murray, 185 N.J. 175, 191 (2005). 

A claim of legal malpractice is subject to the six-year statute of 

limitations. McGrogan v. Till, 167 N.J. 414, 419 (2001) (citing numerous cases 

applying N.J.S.A. 2A:14-1). Specifically, N.J.S.A. 2A:14-1 provides: 

Every action at law for trespass to real property, for any 

tortious injury to real or personal property, for taking, 

detaining, or converting personal property, for replevin

of goods or chattels, for any tortious injury to the rights 

of another not stated in N.J.S.A. 2A:14-2 and N.J.S.A. 

2A:14-3 of this Title, or for recovery upon a contractual 

claim or liability, express or implied, not under seal, or 

upon an account other than one which concerns the 
9 A-2718-20

trade or merchandise between merchant and merchant,

their factors, agents and servants, shall be commenced 

within six years next after the cause of any such action 

shall have accrued. 

[(emphasis added).] 

The New Jersey Legislature did not define the term "accrued" in N.J.S.A. 

2A:14-1 or other similar statutes of limitations, and "therefore left to the 

judiciary the role of infusing this term with meaning." Palisades at Fort Lee 

Condo. Ass'n, Inc. v. 100 Old Palisade, LLC, 230 N.J. 427, 443 (2017). In 

construing accrual statutes, the New Jersey Supreme Court has avoided "a rigid 

and automatic adherence to a strict rule of law" that would produce unjust 

results. Lopez v. Swyer, 62 N.J. 267, 273-74 (1973). "Ordinarily, a cause of 

action 'accrues when an attorney's breach of professional duty proximately 

causes a plaintiff's damages.'" Vastano v. Algeier, 178 N.J. 230, 236 (2003) 

(quoting Grunwald v. Bronkesh, 131 N.J. 483, 492 (1993)). 

"The discovery rule is an equitable doctrine created by the courts to 

protect unsuspecting persons from statutory limitations periods during which a 

claim must be brought or forever lost." Dunn v. Borough of Mountainside, 301 

N.J. Super. 262, 273 (App. Div. 1997). Under the rule, a claim does not accrue 

until the plaintiff "discovers, or by an exercise of reasonable diligence and 

intelligence should have discovered that he may have a basis for an actionable 
10 A-2718-20

claim." Lopez, 62 N.J. at 272. The discovery rule "'postpon[es] the accrual of 

a cause of action' so long as a party reasonably is unaware either that he has 

been injured, or that the injury is due to the fault or neglect of an identifiable 

individual or entity." Abboud v. Viscomi, 111 N.J. 56, 62 (1988). 

"Once a person knows or has reason to know of this information, his or 

her claim has accrued since, at that point, he or she is actually or constructively 

aware 'of that state of facts which may equate in law with a cause of action.'" 

Ibid. (quoting Burd v. N.J. Tel. Co., 76 N.J. 284, 291 (1978)). Thus, "[t]he 

limitations period begins to run when a plaintiff knows or should know the facts 

underlying those elements, not necessarily when a plaintiff learns the legal effect 

of those facts." Grunwald, 131 N.J. at 492. See also Lapka v. Porter Hayden 

Co., 162 N.J. 545, 555-56 (2000) ("We impute discovery if the plaintiff is aware 

of facts that would alert a reasonable person to the possibility of an actionable 

claim; medical or legal certainty is not required."). 

"Whether a cause of action is barred by a statute of limitations is a 

question of law, also reviewed de novo." Catena v. Raytheon Co., 447 N.J. 

Super. 43, 52 (App. Div. 2016). "The application of the discovery rule is for the 

court, not a jury, to decide." Ibid. 
11 A-2718-20

Here, the trial court determined that plaintiff's claim for legal malpractice 

relating to the advice defendants provided him concerning the FTV settlement 

was barred by the six-year statute of limitations. The court stated: 

. . . Plaintiff's action accrued at the time of settlement, 

September 24, 2010, rather than when [plaintiff] 

subsequently consulted Mr. Piekarsky, another 

attorney[, who provided plaintiff with expert reports 

concerning defendants' liability for legal malpractice]. 

At the time that [p]laintiff accepted the settlement 

money, he either suffered actual damage or should have 

discovered "through the use of reasonable diligence" 

"facts essential to the malpractice claim," which in this 

case was that the amount [p]laintiff settled for was not 

reflective of what [p]laintiff perceived to be the value 

of his case against FTV. [Plaintiff's] awareness of the 

malpractice claim is evidenced by the language within 

the [c]omplaint, which states, "[plaintiff] was reluctant 

to settle the case, but Costello advised him to settle and 

pursue claims against Orloff. [Plaintiff], in relying 

upon Costello's advice, settled his valuable claims

against FTV, though the settlement did not reflect the 

value of his claims." Moreover, this [c]ourt does not 

see any reason to doubt that [plaintiff] would 

immediately associate Costello as the cause of his 

injury as Costello was [p]laintiff's attorney when the 

FTV litigation settled. 

Thus, based on the allegations set forth in plaintiff's own complaint, the 

trial court correctly determined that plaintiff was aware of the facts underlying 

his claim for insufficient settlement at the time he settled the FTV litigation and 

dismissed his claims against FTV, which was no later than September 24, 2010. 
12 A-2718-20

Plaintiff was admittedly "reluctant to settle the case" because he believed that 

"the settlement did not reflect the value of his claims." Notwithstanding his 

belief, plaintiff settled the case based on defendants' advice. Because plaintiff 

relied on defendants' advice to accept a settlement that he believed was 

insufficient, plaintiff had knowledge of the two key elements that triggered the 

discovery rule, injury and fault. Grunwald, 131 N.J. at 492-93. At the very 

least, plaintiff should have known, or by exercise of reasonable diligence and 

intelligence should have discovered, that he may have a basis for an actionable 

claim. Lopez, 62 N.J. at 272. 

Thus, because plaintiff dismissed his claim against FTV on September 24, 

2010, via stipulation of dismissal, he had until September 24, 2016, to sue 

defendants for malpractice based on the allegedly insufficient settlement. 

However, plaintiff did not file his legal malpractice complaint until August 17, 

2018, approximately eight years after the accrual of his cause of action and 

almost two years beyond that applicable statute of limitations. Therefore, 

plaintiff's insufficient settlement claim was plainly time-barred. McGrogan, 167 

N.J. at 419; N.J.S.A. 2A:14-1. 

Plaintiff's argument that the statute of limitation should not have run until 

after he consulted with Piekarsky and became fully aware of defendants' alleged 
13 A-2718-20

malpractice is not persuasive, because legal certainty is not required for his 

claim to accrue. Lapka, 162 N.J. at 555-56. Plaintiff was aware of his alleged 

injury and that defendants were allegedly at fault. Therefore, even if plaintiff 

was not aware of his claim at that time, had he exercised reasonable diligence 

and intelligence, he would have discovered that he may have a basis for an 

actionable claim. Lopez, 62 N.J. at 272. 

Furthermore, plaintiff's argument that defendants were required to advise 

him of this alleged malpractice is also unpersuasive. As the trial court also found 

in dismissing plaintiffs' complaint on collateral estoppel grounds, plaintiff failed 

to establish a fair settlement value of his claims, and therefore, could not show 

that the $800,000 settlement was insufficient. Thus, there was no evidence that 

the settlement was actually insufficient. As a result, there was no evidence to 

suggest that defendants had reason to believe that the settlement was insufficient 

and, therefore, they had no duty to advise plaintiff that they may have committed 

malpractice by advising him to settle the FTV litigation. 
14 A-2718-20

Because plaintiff's claim concerning the inefficient settlement was barred 

by the statute of limitations, the trial court correctly dismissed this portion of 

his complaint on this ground.2

III. 

Plaintiff next contends that the trial court erred by granting defendants' 

motion for summary judgment and dismissing his legal malpractice claim for 

failing to sue Pillsbury during the FTV litigation. Because this claim was also 

clearly barred by the six-year statute of limitations, we affirm the court's 

decision. 

 Our review of a trial court's grant of summary judgment is de novo, 

applying the same legal standard as the trial court. RSI Bank v. Providence Mut. 

Fire Ins. Co., 234 N.J. 459, 472 (2018) (citing Bhagat v. Bhagat, 217 N.J. 22, 

38 (2014)). Under that standard, summary judgment will be granted when "the 

competent evidential materials submitted by the parties," viewed in the light 

most favorable to the non-moving party, show that there are no "genuine issues 

of material fact" and that "the moving party is entitled to summary judgment as 

2

 Therefore, we need not address the trial court's alternative ruling that the 

insufficient settlement claim was also subject to dismissal based upon the 

collateral estoppel doctrine. 
15 A-2718-20

a matter of law." Grande v. Saint Clare's Health Sys., 230 N.J. 1, 24 (2017) 

(quoting Bhagat, 217 N.J. at 38); see also R. 4:46-2(c). 

In holding that plaintiff's legal malpractice claim for failing to sue 

Pillsbury was barred by the statute of limitations, the trial court noted that, 

"[w]hile an exact date of [plaintiff]'s actual knowledge of the actual claim is not 

determinable from the undisputed facts presented, the date when a reasonable 

person would have known is." The court determined that plaintiff "should have 

known of the potential malpractice claim no later than October 2011." The court 

explained: 

Over a six-year period between 2005 to 2011[, plaintiff] 

was exposed to information a reasonable person would 

have discovered as a basis for a malpractice claim. . . . 

The [c]ourt observes a timeline as follows. First,

August 2005, [plaintiff] was shown an email by Jim 

Cornell. May 2007, [plaintiff] discusses potential

claim against Pillsbury with Orloff. May 2010, 

Costello replaces Orloff in the FTV litigation. 

September 2010, FTV litigation settles. February 2011, 

[plaintiff] brings a counterclaim in [the] Orloff 

litigation against Orloff. October 2011, Dubler sends a 

letter concerning claim of malpractice against Pillsbury 

and [plaintiff]. And August 17th, 2018, [plaintiff] files 

a lawsuit against Costello. 

Based on all the facts [plaintiff] was exposed to, 

by October 27th, 2011, [plaintiff] should have known 

there was a potential cause of action against . . .

Pillsbury. . . . Based on . . . that date [plaintiff] had 
16 A-2718-20

until October 27, 2017, to file a claim against Pillsbury. 

The core cause of action was initiated August 17, 2018, 

almost 10 months after . . . [the] statute of limitations 

had expired. Thus for the reasons stated above, 

[plaintiff's] claim against Costello for failing to sue 

Pillsbury is dismissed with prejudice. 

We discern no basis for disturbing the trial court's findings of fact or 

conclusions of law on this issue. As the court specifically found, between 2005 

and 2011, plaintiff knew or should have known that he had a potential legal 

malpractice claim against defendants. At the very least, he was "aware of facts 

that would alert a reasonable person to the possibility of an actionable claim[.]" 

Lapka, 162 N.J. at 555; Grunwald, 131 N.J. at 492. 

Plaintiff testified at a deposition that in August 2005, Cornell showed him 

a 2003 email correspondence wherein Pillsbury advised FTV that it should 

reconsider its acquisition of Uno because Uno's operations violated Brazilian 

financial and banking laws and potentially violated United States law. While 

plaintiff claimed that Pillsbury never shared the information with him, he 

nonetheless became aware of that information no later than August 2005 when 

he saw the email. 

Plaintiff also testified that he had requested that Orloff add Pillsbury as a 

party to the FTV litigation; and he had a conversation in which he specifically 

advised Orloff that he wanted to join Pillsbury. Further, plaintiff certified, in 
17 A-2718-20

the Dubler litigation, that "[t]hroughout the first four years of Mr. Orloff's 

representation, [plaintiff] continually requested Orloff depose Pillsbury as they 

had been an integral part of the formation of Nexxar . . . [n]onetheless, Mr. 

Orloff vehemently refused to depose Pillsbury executives." As a result of his 

continued frustration with Orloff's refusal to proceed against Pillsbury, plaintiff 

"contacted the U.S. Justice Department and anonymously discussed how a law 

firm and a venture capital firm were misleading financial institutions and may 

have committed money laundering, [violated] U.S. Patriot Act Laws, and aided 

and abetted tax [e]vasion by foreign entities." 

On December 4, 2006, Orloff filed the complaint in the FTV litigation 

without naming Pillsbury as a defendant. When defendants replaced Orloff and 

OLSS as counsel in the FTV litigation in May 2010, defendants did not amend 

the pleading to add Pillsbury. In September 2010, defendants advised plaintiff 

to settle his claims in the FTV litigation and, based on that advice, plaintiff 

voluntarily settled his claims against FTV and Nexxar. 

On September 14, 2010, plaintiff executed the "Settlement Agreement and 

Mutual Release of Claims," wherein he forever released any and all claims 

against FTV, Nexxar, and, among others, their attorneys, relating to his 

employment and discharge from Nexxar and to the FTV litigation. Specifically, 
18 A-2718-20

the settlement agreement contained a disclaimer directly above plaintiff's 

signature line which stated, in part: "CAUTION: THIS IS A RELEASE OF 

ALL CLAIMS; READ BEFORE SIGNING." 

Plaintiff was aware that Pillsbury was FTV's attorney for the acquisition 

of Uno, which plaintiff alleged caused him damages. Thus, plaintiff was aware, 

or at the very least should have been aware, that by executing the Settlement 

Agreement, he was releasing any and all potential claims he may have had 

against Pillsbury. His argument that he was not specifically advised of the 

release language in the Settlement Agreement, and therefore was not aware of 

the release of his claims against Pillsbury, is not persuasive. The above-cited 

provision expressly cautioned plaintiff that he was releasing his claims and it 

advised him to read the document before signing it. Plaintiff, by signing the 

document, acknowledged that he had in fact read it, understood it, and agreed to 

be bound by its terms. 

Furthermore, under New Jersey law, by signing the settlement agreement, 

plaintiff is presumed to have read it and is precluded from claiming that he did 

not. "It is the general rule that where a party affixes his signature to a written 

instrument . . . a conclusive presumption arises that he read, understood and 

assented to its terms and he will not be heard to complain that he did not 
19 A-2718-20

comprehend the effect of his act in signing." Peter W. Kero, Inc. v. Terminal 

Constr. Corp., 6 N.J. 361, 368 (1951). Accord County of Morris v. Fauver, 153 

N.J. 80, 110 (1998) (noting the “presum[ption] that the parties to a contract know 

the terms of their agreement”). See also Henningsen v. Bloomfield Motors, Inc., 

32 N.J. 358, 386 (1960) (As a general rule, "one who does not choose to read a 

contract before signing it, cannot later relieve himself of its burdens."). Thus, 

it is immaterial that plaintiff claims that he did not read the settlement agreement 

in its entirety. 

As a result of the foregoing, the record supports the trial court's conclusion 

that plaintiff had actual knowledge that he released his potential claims against 

Pillsbury when he executed the settlement agreement and actually dismissed the 

FTV litigation, which occurred on September 14, 2010, and September 24, 2010, 

respectively. By relying on defendants' advice to accept and execute the 

settlement agreement, which released his potential claims against Pillsbury, 

plaintiff had knowledge of the two key elements that triggered the discovery 

rule, injury and fault. Grunwald, 131 N.J. at 492-93; Lapka, 162 N.J. at 555-56. 

Accordingly, plaintiff had until September 24, 2016, to file his legal 

malpractice claim against defendants within the statute of limitations. However, 
20 A-2718-20

plaintiff did not do so until August 17, 2018, nearly two years after the 

expiration of the statute of limitations. 

Moreover, notwithstanding the foregoing, by letter dated October 27, 

2011, Dubler advised defendants and plaintiff of plaintiff's potential claims 

against Pillsbury and that OLSS had committed legal malpractice by failing to 

sue Pillsbury. At that time, defendants and Dubler were assessing OLSS's 

potential liability for failing to prosecute plaintiff's claims against Pillsbury. 

Specifically, the letter provided: 

In the September to November 2003 time period, it is 

clear that Pillsbury knew that the way Uno was 

operated was illegal. Further, they also learned that it 

was probably a crime under Brazilian law. Pillsbury 

told FTV and never disclosed it to [plaintiff]. 

. . . . 

Orloff should have filed fraud claims, conspiracy to 

commit fraud claims, securities claims, and a RICO 

claim against Pillsbury and the individuals involved in 

perpetrating the fraud. 

Larry Orloff did not file suit against Pillsbury. Larry 

Orloff did not depose any of the employees of Pillsbury. 

Larry Orloff did not subpoena Pillsbury's records. 

As a result of Dubler's October 27, 2011 letter, which was also sent 

directly to plaintiff, plaintiff was advised by legal counsel that he had a potential 

claim against Pillsbury and that neither OLSS nor defendants had filed suit 
21 A-2718-20

against Pillsbury. Plaintiff had settled all his claims against FTV and Nexxar 

and dismissed the FTV litigation, and by signing the settlement agreement, he 

was aware that he released any and all potential claims he may have had against 

Pillsbury. Peter W. Kero, Inc., 6 N.J. at 368; Henningsen, 32 N.J. at 386. 

Plaintiff contends that he did not become aware of defendants' culpability 

until 2018, when he received expert legal opinions from his liability experts 

regarding the same. That position is not persuasive because, as set forth above, 

the limitations period began to run when he knew or should have known the 

facts that form the basis of a cause of action, "not necessarily when a plaintiff 

learns the legal effect of those facts." Grunwald, 131 N.J. at 492; Lapka, 162 

N.J. at 555-56. The record demonstrates that plaintiff learned sufficient facts to 

form the basis of a cause of action no later than the date he received the October 

27, 2011, letter, which was likely October 28, 2011,

3

 since his direct copy was 

sent via Federal Express. That letter independently gave plaintiff knowledge of 

injury and fault to trigger the discovery rule. Grunwald, 131 N.J. at 492-93; 

Lapka, 162 N.J. at 555-56. 

3

 Although the letter was sent via facsimile to plaintiff's counsel, his copy was 

sent via Federal Express. October 27, 2011, was a Thursday, so plaintiff likely 

received his copy of the letter on Friday, October 28, 2011, or Monday, October 

31, 2011, as it is unclear from the letter whether it was sent via overnight mail. 
22 A-2718-20

Thus, at the latest, the statute of limitations ran after plaintiff received the 

October 27, 2011 letter. Even if he received that letter as late as October 31, 

2011, plaintiff was required to file suit against defendants by October 31, 2017. 

However, he did not file suit until August 17, 2018. His legal malpractice claim 

against defendants for failing to file suit against Pillsbury was thus time-barred. 

Therefore, we affirm the trial court's determination that plaintiff's claim 

concerning Pillsbury was barred by the six-year statute of limitations.4

IV. 

Finally, plaintiff argues that the trial court erred by granting summary 

judgment to defendants and dismissing his legal malpractice claim for 

defendants' failure to sue Sills in the FTV litigation. Again, we disagree. 

The trial court found that plaintiff was unable to demonstrate that 

defendants were the proximate cause of plaintiff's alleged damages. In this 

regard, plaintiff asserts that defendants should have sued Sills before the statute 

of limitations barring such a claim expired. However, the court found that 

plaintiff's cause of action against Sills accrued no later than December 2008, 

and defendants stopped representing plaintiff in September 2012. After that, 

4

 Therefore, we need not address the trial court's alternative ruling that plaintiff's 

legal malpractice claim concerning defendants' failure to sue Pillsbury was also 

subject to dismissal based upon the collateral estoppel doctrine. 
23 A-2718-20

plaintiff had twenty-seven additional months to sue Sills before the statute of 

limitations expired. As a result, the court concluded that defendants could not 

have been the proximate cause of any damages plaintiff sustained by not suing 

Sills. 

As set forth above, to establish a prima facie legal malpractice claim, a 

claimant must prove the existence of an attorney-client relationship, breach of 

duty, and proximate causation. Conklin, 145 N.J. at 416. Proximate cause is 

established by showing that the negligent conduct was a substantial factor in 

causing the claimant's damages. Id. at 419-22. Stated differently, proximate 

cause is "any cause which in the natural and continuous sequence, unbroken by 

an efficient intervening cause, produces the result complained of and without 

which the result would not have occurred." Dawson v. Bunker Hill Plaza 

Assocs., 289 N.J. Super. 309, 322 (App. Div. 1996) (quoting Fernandez v. 

Baruch, 96 N.J. Super. 125, 140 (App. Div. 1967), rev'd on other grounds, 52 

N.J. 127 (1968)). 

Here, the record does not support the conclusion that plaintiff could 

establish a prima facie claim of legal malpractice for defendants' failure to sue 

Sills. First, Dubler considered a legal malpractice claim against Orloff for his 

failure to sue Sills. However, after evaluating Sills's potential liability, Dubler 
24 A-2718-20

decided not to file such a claim. Furthermore, in his May 13, 2013 supplemental 

expert report, plaintiff's expert Michael Galpern concluded that Sills did not 

deviate from the applicable standard of care or breach any duty to plaintiff by 

including an integration clause in the stock purchase agreement involved in the 

FTV litigation. Indeed, it is not clear from the record that plaintiff had a viable 

claim against Sills. 

Second, the record does not support the conclusion that defendants were 

the proximate cause of plaintiff's alleged damages because it is undisputed that 

Dubler had sufficient opportunity to consider, investigate, and file a lawsuit 

against Sills after defendants withdrew from representing plaintiff. Dubler had 

approximately twenty-seven months to evaluate any potential claim but chose 

not to file a lawsuit against Sills. Indeed, plaintiff's liability expert, Scott B. 

Piekarsky, Esq., confirmed at a deposition that Dubler had approximately

twenty-seven months to evaluate any potential claim but chose not to file a 

lawsuit against Sills, and that plaintiff had hired a legal malpractice expert to 

assist Dubler in making that evaluation and decision. There was no evidence 

that Dubler was prevented from asserting a claim against Sills. Rather, the 

record supports the conclusion that Dubler sufficiently considered the issue but 

chose not to assert a claim against Sills. 
25 A-2718-20

Simply put, plaintiff cannot establish that defendants were the proximate 

cause of his alleged damages because his subsequent counsel had ample time 

and opportunity to file suit against Sills within the applicable statute of 

limitations. See 4 Ronald E. Mallen, Legal Malpractice § 33:12 (2023 ed.) 

("[W]here a lawyer's employment ends and ample time remains for the client or 

successor counsel to complete the task for which the lawyer is sued[,] . . . 

causation analysis [establishes that] the lawyer is not liable if there was 

sufficient time to complete the task."); id. at § 33:13 ("An accepted proposition 

is that a lawyer is not liable for an omission that occurred during the 

representation of successor counsel or after withdrawal, where ample time 

remained to perform the act or task."). 

This conclusion is firmly supported by our decision in Fraser v. Bovino, 

317 N.J. Super. 23 (App. Div. 1998). In Fraser, after a land deal fell through 

due to delays caused by an unsuccessful challenge to municipal approval of a 

condominium project, Robert Fraser brought actions starting in 1990 against 

various parties that opposed the project, and in 1997 William and Donald 

Gelnaw instituted a similar action. Id. at 30-33. We held that all the claims in 

the Gelnaws' action and several of the claims in Fraser's actions were properly 

dismissed pursuant to statutes of limitations. Id. at 34, 36. However, only the 
26 A-2718-20

Gelnaws had included a claim of legal malpractice against their former 

attorneys, for failing to ensure that the claims against the objectors were brought 

within the statutes of limitations. Id. at 33, 35.

The Gelnaws claimed to have retained their former counsel in October 

1996, by which time the only "conceivably viable" claims against the objectors 

were those subject to the six-year limitation period. Id. at 35. However, the 

Gelnaws admitted that their former counsel withdrew and "returned the file to 

them" three months later, on a date that was "several weeks . . . before the sixyear statute of limitations expired." Ibid. Because the Gelnaws still had several 

weeks to pursue the "conceivably viable" claims with new counsel, the 

withdrawal of their former counsel did not have a "material adverse effect" on 

their interests. Ibid. (quoting RPC 1.16(b)). Without a harm to the Gelnaws 

arising from counsel's withdrawal, we upheld the dismissal on summary 

judgment of the malpractice claim against them. Ibid. 

Thus, in Fraser, we determined that twenty-four days before the expiration 

of the statute of limitations was sufficient time for the attorneys to withdraw 

without a material adverse effect on their client's interest. Here, defendants 

withdrew from their representation of plaintiff approximately twenty-seven 

months prior to the expiration of the statute of limitations. That gave Dubler, 
27 A-2718-20

who was already familiar with the case as co-counsel, ample time and 

opportunity to file suit against Sills. In fact, Dubler, with the help of plaintiff's 

expert, considered doing so and chose not to. Thus, the trial court correctly 

determined that defendants' failure to file suit against Sills was not the proximate 

cause of plaintiff's alleged loss.5

Therefore, we affirm the trial court's decision granting defendants 

summary judgment and dismissing plaintiff's legal malpractice claim for failure 

to sue Sills. 

Affirmed. 

5

 In light of this ruling, we need not address the trial court's alternative decision 

that plaintiff's legal malpractice claim concerning defendants' failure to sue Sills 

was also subject to dismissal based upon the collateral estoppel doctrine.