We believe that a higher percentage of legal malpractice cases suffer dismissal, either at the answer or at summary judgment than do other forms of litigation in negligence. Admittedly, we have but anecdotal evidence. Nevertheless, Facie Libre Assoc. I, L.L.C. v Littman Krooks, L.L.P.
2015 NY Slip Op 01389 Decided on February 17, 2015 Appellate Division, First Department is a prime example of an institutional bias towards the attorney over the client in dismissals.
"Order, Supreme Court, New York County (Joan M. Kenney, J.), entered September 11, 2013, which granted defendant’s motion to dismiss the complaint, unanimously modified, on the law, to deny the motion as to the legal malpractice cause of action, and otherwise affirmed, without costs.
The legal malpractice cause of action should not be dismissed because it cannot be concluded as a matter of law from the allegations in the complaint that defendant had no duty to monitor the transaction at issue for plaintiffs, including requesting copies of and ascertaining the status of documents required by the issuer for the stock sale to go forward (see Katz v Paul, Hastings, Janofsky & Walker LLP, 19 Misc 3d 1121(A), 2008 NY Slip Op 50796[U] [Sup Ct, NY County 2008]). In particular, plaintiffs allege that there were indications that the legal opinion necessary for the transaction had not been sent to the issuer and that those indications should have triggered an inquiry by defendant (see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 115 AD3d 228, 240-241 [1st Dept 2014]). The complaint adequately alleges that but for defendant’s failure to make inquiry as to the status of the legal opinion, the opinion would have been delivered by the seller (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). Plaintiffs’ claim for lost profits is not barred by the settlement with the seller for the return of the purchase price since no election of remedies against defendant is involved (see Rennie v Pierce Cards, 65 AD2d 527, 528 [1st Dept 1978])."