.

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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Firm Highlights

Result

Summary Judgment Secured, Preserving $750,000 in Coverage for Insured in Major Trucking Liability Dispute

Ray Freudiger and Michael A. Roberts (both of Cincinnati) successfully obtained summary judgment on behalf of their client in a coverage dispute arising from a May 19, 2022, motor vehicle accident. A permissive driver operated a box truck for an interstate trucking company and caused severe injuries to two tort victims. Prior to the accident, the insured had procured a commercial auto policy for the trucking company with stated limits of $1,000,000. Following the accident, the insurer initiated a declaratory judgment action asserting that only reduced bodily injury limits of $25,000/$50,000 applied and later counterclaimed, alleging it would not have insured the driver had he been properly submitted for approval under the policy. After extensive discovery, briefing, and oral argument, the court rejected the insurer’s attempt to shift responsibility for the $750,000 in coverage it was legally required to provide for permissive drivers under Ohio law, granting summary judgment in favor of the insured and preserving $750,000 in liability exposure.

Portrait of Carolyn Schweizer, with text below: Philadelphia Office Managing Attorney

News

Marshall Dennehey Names Carolyn Schweizer New Philadelphia Office Managing Attorney

Casey Alan Coyle Joins Marshall Dennehey's PA Appellate Practice as a Shareholder in Harrisburg and Philadelphia

News

Marshall Dennehey Expands Leading Pennsylvania Appellate Practice With Addition of Shareholder Casey Coyle

Result

No-Cause Jury Verdict Secured in Wrongful Death Trial

We successfully obtained a no-cause jury verdict in a 13-day wrongful death trial. The decedent, a 59-year-old man, was admitted to the emergency room on February 15, 2019, with complaints of abdominal pain, decreased appetite, and constipation, despite the use of laxatives. The patient did not complain of any nausea, vomiting, or diarrhea. He had a significant medical history including diabetes, hypertension, prior coronary artery stenting, morbid obesity (with past gastric bypass surgery), longstanding ventral hernia, and back pain. A CT scan revealed multiple hernias and a potential closed-loop bowel obstruction, leading to a surgery consultation. Our client, an emergency general surgeon, interpreted that the patient did not have a closed loop or any significant obstruction and recommended non-surgical management. The patient was approved to have clear liquids, and had a vomiting incident shortly after, but our client was not notified. The patient was returned to NPO status, and after improving overnight, he was returned to “clears” and additional medical and renal consults were ordered. Our client did not receive any communications from the residents/nurses of any changes in the patient’s condition. On February 18, 2019, two rapid responses were called due to increased heart rate and vomiting. It is believed that the vomiting resulted in aspiration, causing sepsis, ultimately leading to the patient’s death. During the trial, the plaintiff’s sole medical expert highlighted imaging on the wrong hernia, which called into question all of his opinions in the case. We made key objections related to the expert testimony, limiting what the allegations were, and preventing new allegations from being made. After approximately two and a half hours of deliberating, the jury returned a no-cause verdict. 

blue facade of a hospital sign against blue sky

Result

Defense Verdict in Complex Medical Malpractice Trial

Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

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Marshall Dennehey Announces 2026 Ohio Super Lawyers and Rising Stars

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Result

Summary Judgment Secured for Life Insurance Agent

Thought Leadership

Supreme Court of Pennsylvania Holds That Public Policy Does Not Prevent Insurance Coverage for Sex Trafficking Claims

On July 21, 2026, the Supreme Court of Pennsylvania issued an opinion emphasizing the limited circumstances in which courts may invoke public policy to bar insurance coverage, holding in Samsung Fire & Marine Insurance Co., Ltd. (U.S. Branch) v. RI Settlement Trust that Pennsylvania public policy does not preclude coverage for claims alleging that insureds enabled or profited from human sex trafficking. The decision rejects a line of federal district court decisions predicting otherwise and reinforces that Pennsylvania courts will invoke the public policy doctrine only in the clearest of circumstances. RI Settlement is particularly significant because it arose on certified questions from the United States Court of Appeals for the Third Circuit, giving the Supreme Court the opportunity to resolve an issue on which federal courts had predicted Pennsylvania law differently. RI Settlement arose out of four separate civil complaints in which the underlying plaintiffs alleged that, as minors, they were the victims of human sex trafficking at various hotels in Philadelphia. The plaintiffs claimed that the hotel owners were negligent in failing to stop the sex trafficking from happening at their hotels. After the filing of the lawsuits, the hotel owners sought coverage under their Commercial General Liability policies. The insurers initially defended the hotels under Reservation of Rights letters, though the carriers later filed Declaratory Judgment actions seeking declarations that they did not owe a duty to defend or indemnify. In short, the insurers argued in the alternative that they did not owe any obligation to provide coverage based upon Pennsylvania public policy (because the claims violated the Human Trafficking Law – 18 Pa.C.S. § 3011) and the terms and conditions of the policy. On motions for judgment on the pleadings, the District Court found for the insurers on the basis of public policy: There is no duty to defend or indemnify against actions arising out of an insured's criminal conduct related to the sex trafficking of minors. The Court appreciates that it may make public policy the basis of a judicial decision only in “the clearest of cases.” See Minnesota Fire & Cas. Co. v. Greenfield, 589 A.2d 854, 868 (Pa. 2004) (quoting Hall v. Amica Mut. Ins. Co., 648 A.2d 755, 760 (Pa. 1994)). Yet, the Court strains to imagine a clearer case than the one presented here in which the facts alleged indicate that Policyholders engaged in criminal conduct in violation of Pennsylvania's Human Trafficking Law. The hotel owners appealed the matter to the Third Circuit, which petitioned the Supreme Court of Pennsylvania to grant review of two certified questions of law: (1) whether Pennsylvania law had an “overriding public policy” against sex trafficking, such that an insurer’s duty to defend and/or indemnify is abrogated when an insured is alleged to have enabled or profited from such trafficking; and (2) if yes, is that duty abrogated whenever the insured’s alleged conduct would constitute a violation of the Pennsylvania Human Trafficking statute. Importantly, the certified questions did not ask the Supreme Court to determine whether the policies afforded coverage under their terms. Rather, the court was asked only whether Pennsylvania public policy independently barred coverage. As a result, the court assumed for purposes of answering the certified questions that the insurers otherwise owed a duty to defend and addressed only the public policy issue, leaving all policy-based coverage defenses for further proceedings. Because the court concluded that the answer to the first certified question was “no”, it did not reach the second issue. In reaching its determination that Pennsylvania public policy does not prohibit insurance coverage for sex trafficking claims, the court limited the impact of its decision in Minnesota Fire & Cas. Co. v. Greenfield, 855 A. 2d 854, 855 (Pa. 2004), which the RI Settlement opinion emphasized as having been an “Opinion Announcing Judgment of the Court” – or a plurality opinion. In Greenfield, the insured homeowner was sued by the estate of his houseguest who overdosed from heroin that he sold to her. The matter wound its way to the Supreme Court, which determined that the insurer did not owe a duty to defend or indemnify based upon Pennsylvania public policy, which criminalized the sale and use of heroin as a Schedule I narcotic. In RI Settlement, the court “decline[d] the invitation” to extend the rationale of the three-justice plurality in Greenfield beyond cases involving Schedule I controlled substances. In so holding, the justices in RI Settlement refused to “divine an overriding public policy pronouncement by the General Assembly by virtue of its enactment of the Human Trafficking Law.” The opinion further states that it is not “within the purview of this Court to rank the magnitude of the public policy underlying the various crimes defined in the Crimes Code. It is sufficient for the work of the courts to know that the General Assembly has identified conduct it deems harmful and dangerous to the maintenance of an orderly society and criminalized it.” While the court declined to declare that Pennsylvania public policy prohibits coverage for sex trafficking claims, the opinion in RI Settlement expressly states that insurers are free to include appropriate exclusionary language for such causes of actions in their policies if they desire to do so. It will certainly be interesting to see whether the insurance industry accepts the court’s invitation, or perhaps whether the Pennsylvania legislature steps in to clarify that sex trafficking claims are indeed of the type or magnitude that they should not be covered by insurance. In any event, we will, of course, continue to monitor this and other insurance coverage issues that arise before courts in Pennsylvania, New Jersey and throughout our firm’s geographic footprint and around the country.

Thought Leadership

New Jersey Appellate Division Affirms Exclusion of Legal Malpractice Expert as Impermissible Net Opinion

Jack Slimm and Jeremy Zacharias obtained a favorable decision on behalf of their client in a case centering on the admissibility of expert testimony in legal malpractice actions. In Martin v. Loury, the New Jersey Appellate Division affirmed the exclusion of a plaintiff's legal malpractice expert, holding that the expert's opinions on causation and damages were too speculative to support the malpractice claim. The legal malpractice action arose from an underlying employment dispute involving claims for damages stemming from the breach of an employment agreement. The plaintiff alleged that defense counsel committed malpractice during a second trial by failing to recall the plaintiff as a rebuttal witness after the employer's CEO testified. According to the plaintiff's expert, additional rebuttal testimony would have bolstered the plaintiff's damages claims and led to a more favorable result. Both the trial court and the Appellate Division rejected that theory. The courts found that the expert could not explain how the proposed rebuttal testimony would have altered the outcome of the underlying case or resulted in any additional recoverable damages. Notably, the trial judge in the underlying employment matter had already rejected the CEO's testimony as not credible and had accepted the damages analysis advanced by the plaintiff. The court had also determined that the amount of damages was not genuinely disputed. As a result, the expert's opinion that additional rebuttal testimony would have produced a better outcome was unsupported by the record and based on speculation rather than evidence. The Appellate Division agreed that neither the plaintiff nor the expert could identify any actual damages attributable to the alleged malpractice or demonstrate the required element of proximate causation. The court further upheld the trial court's application of New Jersey's net opinion doctrine, finding that the expert failed to provide the necessary "why and wherefore" supporting his conclusion that the attorney's conduct caused a compensable loss. Because the opinions rested on unquantified possibilities rather than demonstrable facts, they were inadmissible. Key Takeaway for Legal Malpractice Defendants For attorneys and firms defending legal malpractice claims, Martin v. Loury underscores the importance of closely scrutinizing an opponent's expert report on the critical elements of proximate causation and damages. The decision demonstrates that a malpractice claim cannot survive where an expert merely speculates that different litigation tactics might have produced a better result. Instead, the plaintiff must present admissible expert testimony grounded in the record that explains how the alleged attorney error probably changed the outcome of the underlying matter and resulted in measurable damages.

Thought Leadership

Court Allows Recklessness and Punitive Damages Claims to Proceed After Work‑Zone Crash

In a case where a defendant filed preliminary objections against allegations of recklessness and punitive damages, the Susquehanna County Court of Common Pleas denied these preliminary objections. This case stems from a motor vehicle accident, where the defendants car struck the plaintiffs car after the defendant allegedly fell asleep at the wheel, going at a high rate of speed, through a construction work zone. Defendant first objected to the general allegations throughout the plaintiff’s complaint pertaining to “reckless” conduct contending that there were insufficient factual allegations to support the claim of reckless conduct. Defendant next objected to the plaintiffs claim for punitive damages, as punitive damages may only be assessed against a motorist for falling asleep while driving if there is further evidence to prove driver was aware of their drowsiness and risk of falling asleep. Lastly, defendant objected to plaintiffs complaint, claiming it lacked specificity. The court here found that the plaintiff had included in the complaint specific allegations related to the defendant’s alleged recklessness, including allegations regarding speeding in a work zone, almost striking the flagger, falling asleep at the wheel, and striking the plaintiffs vehicle which was stopped. Additionally, the court noted that falling asleep does not come without warning. The court found that these allegations were sufficient to support an allegation of recklessness at the pleadings stage.