On September 24, 2026, the First Department issued a decision in Gilbert v. Powers, 2026 NY Slip Op. 05457, holding that questions of fact precluded summary judgment on an advice of counsel defense, explaining:
Defendants’ argument that they are entitled to summary judgment based on the advice of counsel defense is without merit. However, the defense does raise issues of fact precluding summary judgment in plaintiffs’ favor as to the defendants and issues to which collateral estoppel does not apply. In particular, the record presents conflicting evidence as to whether defendants were making business decisions, which are not protected by the advice of counsel defense, as opposed to legal decisions, which are protected. Even as to the legal decisions, based on the verified complaint in the underlying action, there is an issue of fact as to whether Winston specifically sought out legal advice that would support his desired course of conduct.
(Internal quotations and citations omitted).