If You Don't Ask For Enough, Then...
Plaintiff's practitioners are caught between a rock and a hard place when deciding how much to put in the ad damnum clause. Is $ 1 Million too little or too much? these legal malpractice defendant attorneys forgot the rule that no actual amount must be pled... So, they demanded $ 1 Million, and got a verdict for $ 2 million. What to do?
In Ambra v. Awad, 487/05; ;Justice F. Dana Winslow;NASSAU COUNTY Supreme Court we see how the problem plays out:
"Plaintiff JOHN AMBRA ("AMBRA") brings this action against his former attorneys, defendants JOSEPH P. AWAD ("AWAD"), SILBERSTEIN, AWAD & MIKLOS, P.C. and GREGORY D. BELLANTONE ("BELLANTONE") (collectively, the "SILBERSTEIN, AWAD defendants" or "SILBERSTEIN, AWAD"), for losses incurred as a result of their alleged legal malpractice in a personal injury action entitled John Ambra v. Makko of Brooklyn, Ltd., Index No. 27901/98, Supreme Court, Kings County (the "Personal Injury Action"). The Court refers to the prior order of this Court entered September 20, 2007 [16 Misc.3d 1128(A)] (the "Prior Order"), and the decision of the Second Department affirming the Prior Order as modified [62 AD3d 732], for a complete recitation of the facts and procedural history of this action.
On April 15, 2002, Makko's excess insurer, with whom Makko had a $5,000,000 policy, disclaimed coverage on the basis of late notice. The disclaimer letter was forwarded to SILBERSTEIN, AWAD. On or about May 17, 2002, SILBERSTEIN, AWAD filed a written motion to increase the ad damnum. Before that motion was decided, AMBRA agreed to a settlement of the Personal Injury Action for $1,000,000, the amount of the primary insurance policy. A General Release was forwarded to AMBRA on or about May 29, 2002, and signed by AMBRA on June 17, 2002. The settlement resulted in a net recovery to AMBRA, after costs, expenses and attorneys fees, of $658,917.37. On or about July 8, 2002, SILBERSTEIN, AWAD sent a check to AMBRA (after deducting the amount of the workers' compensation lien) in the amount of $626,172.41.
AMBRA brought the instant action against the SILBERSTEIN, AWAD defendants, alleging, in sum and substance, that as a result of their negligence or malpractice, AMBRA was deprived of full recovery of the damages awarded to him by the jury. The Amended Complaint originally included four causes of action. The SECOND and THIRD causes of action were dismissed by this Court in the Prior Order, and the dismissal was affirmed by the Appellate Division.
On the evidence presented, the Court cannot find, as a matter of law, that the SILBERSTEIN, AWAD defendants were not negligent in their advice to AMBRA regarding the resources of Makko available to satisfy the verdict. The investigation regarding the potential assets of Makko is described in the BELLANTONE Affidavit. BELLANTONE states that he went to Makko's premises to view the property and operations. In addition, "[s]omeone from the firm conducted an internet investigation, went to the county clerk's office or consulted with a realtor to determine that Makko did not own its buildings…During the deposition of the witness from Makko in the underlying case, I inquired about Makko's operations, contracts and assets… . Prior to the trial of the underlying matter, I determined that Makko had a few trucks and a contract with Yankee Stadium to deliver pretzels and was an ongoing business. This was discussed with plaintiff." [BELLANTONE Affidavit, ¶¶5-8.]
The description of BELLANTONE's investigation is imprecise at best. To the extent that BELLANTONE relied on public records or reports regarding the financial condition of Makko at the time of settlement, he did not attach or incorporate specific reference to them in his Affidavit. To the extent that BELLANTONE relied on the deposition of a principal of Makko in the underlying trial, he also did not attach or incorporate specific testimony from the transcript of that deposition."