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Nicholas P. Chrysanthem

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NPChrysanthem@mdwcg.com

Portrait of Nicholas P. Chrysanthem

Nicholas is a member of the Professional Liability Department where his practice is focused on the representation of law firms, attorneys, employers and agents and brokers, in state and federal courts.

An experienced trial attorney and litigator for over 30 years, Nicholas defends clients in matters involving legal malpractice, employment litigation, real estate litigation, complex commercial litigation, ADA public accommodation and ADA class action litigation. Nicholas has experience practicing before the New York State Division of Human Rights and the New York City Human Rights Commission. He has also been retained by clients to consult on risk avoidance matters and as a trial expert. Nicholas has lectured on evidence and trial practice at various continuing legal education seminars.

Nicholas has significant experience defending owners and contractors in actions arising out of New York Labor Law and New York Industrial Code violations. His experience in litigating commercial and tort disputes provides clients with the ability to understand a variety of underlying matters that are often the basis of legal malpractice actions.

Nicholas graduated with his Bachelor of Arts in Communication Arts from Iona College in 1982. In 1988, he earned his juris doctor from Fordham University School of Law and received the American Jurisprudence Award in Torts.

Prior to joining Marshall Dennehey, Nicholas was a member of a New York firm where he focused his practice on the defense of law firms and attorneys in legal malpractice actions, commercial and corporate litigation, and cases brought under New York’s Labor Law.

    • Fordham University School of Law (J.D., 1988)
    • Iona University (B.A., 1982)
    • New York, 1989
    • New Jersey, 1988
    • U.S. District Court District of New Jersey
    • U.S. District Court Eastern District of New York
    • U.S. District Court Southern District of New York
    • U.S. Court of Appeals 2nd Circuit
    • New York Metro Super Lawyers (2021-2026)
    • American Bar Association, Trial Evidence Committee; Employment Law Section; Tort Trial and Insurance Practice Section; and Section of Litigation
    • DRI, Employment and Labor Law Section, Professional Liability Section, and Commercial Litigation Section
    • New York State Bar Association, Law Practice Management Committee 2013-Present, Labor and Employment Law Section
    • New York Trial Notebook Editorial Advisory Board, 2005
    • Professional Responsibility, Columbia University School of Law, Guest Speaker,  June 2021
    • Employment Law Seminar, ACEC, Albany, New York, Presenter, January 2019
    • Legal Malpractice: How to Avoid it, What to do If You Can't, Lecturer 
    • Legal Malpractice and Ethics, Brooklyn Law School, Solo Practice Seminar, Lecturer
    • ESI For Dummies, What Every Legal Team Should Know, The Lawyers Guide to ESI Forensics 101, New York State Bar Association, Moderator 
    • Obtained summary judgment in a legal malpractice case alleging failure to properly cancel a real estate contract and alleging loss of a $175,000 security deposit and unspecified loss of opportunity income.
    • Successfully had a pre-answer motion to dismiss granted. The plaintiff, a practicing attorney, sued our client, an insurance broker, alleging that she was an additional insured under an insurance policy for her contractor, who ruined her kitchen. The motion was granted unopposed.
    • Successfully had a motion to dismiss a legal malpractice case pre-answered granted. The plaintiff used our client as an attorney because his associate neglected to oppose a threshold motion in the underlying auto case. The underlying court granted that motion in-part and denied it, in-part. The plaintiff retained a new attorney without firing our client. The new attorney commenced a malpractice action against our client and refused to substitute as attorney of record in the underlying action. We moved to dismiss the case on a number of issues pre-answer, but primarily because it was premature and the plaintiff could not prove that but for the failure to oppose the motion, he would have prevailed in overcoming the threshold.
    • Successfully had a pre-answer motion to dismiss granted as the court declined to apply supplemental jurisdiction over the state law claims. Plaintiffs commenced this action against our client for violation §1983 and other state law tort and discrimination claims. Our motion to dismiss the first complaint was granted and plaintiffs were given the opportunity to amend, which they did. We moved to dismiss the amended complaint pursuant to FRCP 12(b)(6), which was granted by the court.
    • Was granted a motion to dismiss a legal malpractice case where the plaintiff claimed that the settlement she entered into at trial was the result of our client not being prepared. Plaintiff allocuted on the record, yet she claimed, in opposition to our motion to dismiss that she had a condition that forced her to answer “yes” instead of “no” when she is under stress. Plaintiff submitted a note from a psychiatrist that backed up her claim. We successfully argued that the plaintiff was properly allocuted on the record before the court. The presiding judge asked the questions and determined that her condition was manufactured subsequent to her allocution.  We convinced the judge that if a client could make up a condition because she was unhappy with a settlement, there would be no more settlements.
    • Successfully obtained dismissal on a Rule 12(b)(6) pre-answer motion to dismiss of a 42 U.S.C. §1983 civil rights case against our clients. Plaintiff claimed that our clients acted under color of state law in having her arrested for harassment. Plaintiff alleged various causes of action for false arrest, abuse of process, malicious prosecution, conspiracy, and intentional and negligent infliction of emotional distress. The court rejected plaintiff’s claims even though our client was a retired police officer with significant contracts with the police department and DA’s office.
    • Obtained defense verdict after jury trial in U.S. Dist. Court, S.D.N.Y in the matter of Flushing Bank v. AGCS Marine Insurance Company, 16-CV-2638 (RJS) in breach of contract action arising out of a claim by a loss payee.
    • Obtained Multiple "No Probable Cause" determinations from New York State Division of Human Rights in favor of Employer-Clients
    • Obtained favorable resolutions of Federal ADA Class Action lawsuits
    • Obtained pre-answer dismissal of adversary proceeding against law firm-client arising out of underlying bankruptcy proceeding
    • Obtained a defense verdict after a five-day jury trial in a legal malpractice action arising out of an underlying divorce case
    • Obtained reversal of a denial of summary judgment from the New York Appellate Division, Second Department in a legal malpractice action
    • Obtained voluntary dismissal with prejudice of action against attorneys based on underlying commercial real estate matter
    • Obtained favorable result in complex software copyright infringement case
    • Obtained reversal of a decision re-instating a lead poisoning case after dismissal from the New York Appellate Division, Second Department
    • Obtained favorable settlement including millions of dollars' worth of real estate in connection with resolution of complex shareholder litigation

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Legal Updates for Lawyers' Professional Liability

Legal Updates for Lawyers’ Professional Liability - CASE LAW UPDATE

February 1, 2025

An attorney cannot be liable for failing act outside the scope of the retainer agreement. Kohler v. Polsky, 219 AD3d 821, 822 (2d Dept 2023) The plaintiff had retained the defendant-attorney for representation in a workers’ compensation claim. The retainer agreement explicitly excluded the possibility that the defendant was representing him in other types of claims.  The plaintiff alleged the defendant committed malpractice by failing to advise him of potential personal injury claims against other third parties. The defendant subsequently moved for summary judgment, arguing that advising the plaintiff of potential personal injury actions was beyond the scope of the retainer agreement.  Looking to Rule 1.2(c) of the Rules of Professional Conduct, the court noted that a lawyer cannot be liable for failing act outside the scope of their retainer.    Legal Updates for Lawyers’ Professional Liability – February 2025 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

Legal Updates for Lawyers' Professional Liability

Legal Updates for Lawyers’ Professional Liability - CASE LAW UPDATE

February 1, 2025

Venue and Retainer Agreements  Price v. Kohn, Swift & Graf, P.C., 24-CV-04720 (JMW), 2024 WL 4528928 (E.D.N.Y. Oct. 18, 2024) In this case, argued by Nicholas P. Chrysanthem of tour New York City and Long Island offices, the plaintiff filed a myriad of claims that mainly sounded in legal malpractice.  After the plaintiff’s meditation business attracted the attention of the FBI for, inter alia, forced labor, the plaintiff retained the defendants for representation in the criminal proceedings. The retainer agreement contained a forum selection clause for Philadelphia. The plaintiff unsuccessfully attempted to argue the retainer agreement was procured by fraud. Accordingly, the court transferred the action to the Eastern District of Pennsylvania.    Legal Updates for Lawyers’ Professional Liability – February 2025 is prepared by Marshall Dennehey to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. We would be pleased to provide such legal assistance as you require on these and other subjects when called upon. ATTORNEY ADVERTISING pursuant to New York RPC 7.1 Copyright © 2025 Marshall Dennehey, all rights reserved. No part of this publication may be reprinted without the express written permission of our firm. For reprints or inquiries, or if you wish to be removed from this mailing list, contact tamontemuro@mdwcg.com.

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The Tolling Trap: Filing Alone Will Not Toll the Statute Without Good-Faith Service

The Eastern District of Pennsylvania recently reinforced a critical limitation on bad faith claims, holding that a timely filing alone will not preserve a cause of action absent a good-faith effort to serve the original process. The plaintiff had presented a claim for underinsured motorist benefits to his auto insurer. The insurer evaluated the claim and determined that the plaintiff’s accident-related damages did not exceed the bodily injury liability insurance limits of the at-fault driver and denied his claim. Among other claims, the plaintiff sought to present a claim for insurance bad faith under 42 Pa. C.S.A. § 8371, to which a two year statute of limitation applies. He first filed a praecipe for writ of summons before the expiration of the statute of limitation. However, the plaintiff did not attempt to serve the praecipe or writ until after the statute of limitations had expired. Additionally, the service failed as the plaintiff had mailed the original process to an incorrect address. Despite receipt of the Postal Service’s failure to deliver the original process, the plaintiff did not attempt to re-serve the writ. Two months later, the plaintiff filed a complaint and then successfully served that complaint. The insurer sought to dismiss the plaintiff’s bad faith claim as time-barred by the statute of limitations. The district court agreed. Though the plaintiff had filed a praecipe for a writ of summons prior to the expiration of the statute of limitations, the statute is only tolled if there is a good faith effort to serve that original process. In this case, the court determined that the plaintiff had failed to perform a “good faith effort to serve the original process”. Additionally, though the filing and service of a complaint can serve as alternative original process when the lawsuit is commenced by the filing of a praecipe for a writ of summons, the plaintiff filed his complaint after the statute of limitations had expired. The plaintiff’s bad faith claim was therefore determined to be barred by the statute of limitations and dismissed by the court, with prejudice. A key takeaway for the defense is not to assume that the statute of limitations has been successfully tolled by a plaintiff merely because a praecipe for a writ of summons or complaint has been filed prior to the expiration of the statute. A filed complaint or writ is only part of the equation. The defense should carefully review the docket and filings to confirm that the plaintiff also performed the requisite good faith effort to serve that original process. A thorough review of the docket may reveal that the plaintiff failed to make the good-faith service efforts necessary to toll the statute of limitations.

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Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.

Complete Victory Obtained in a Workers’ Compensation Matter

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Complete Victory Obtained in a Workers’ Compensation Matter

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Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

Defense Victory Obtained in Workers’ Compensation Case

Result

Defense Victory Obtained in Workers’ Compensation Case

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Result

Summary Judgment Obtained in Insurance Coverage Case

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CLM 2026 Focus Conference

Allison joins three insurance industry leaders to discuss how cyber coverage disputes, the growing impact of social inflation on bodily injury claim valuation, and the use of artificial intelligence are reshaping the bad faith landscape. The panel will examine emerging sources of extra-contractual exposure, including evolving cyber insurance coverage issues and the challenges of accurately valuing bodily injury claims. Practical approaches to claim evaluation using AI, along with defense strategies designed to help prevent or successfully defend against bad faith litigation, will also be addressed. 

Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department

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Bret E. Dubbert Joins Marshall Dennehey’s Orlando Office as Special Counsel in the Casualty Department