New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

Category Archives: Legal Malpractice Cases

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An Interesting Primer on Legal Fee Billing and Retainers

Posted in Legal Malpractice Cases
In Menaker & Herrman, LLP v Foster 2017 NY Slip Op 31456(U) July 7, 2017 Supreme Court, New York County Docket Number: 651969/2016  Judge Manuel J. Mendez presents a primer on the law of legal fee billing and retainer agreements. “The complaint alleges that on May 3, 2013, defendant, Larry J. Guffey, an at1:orney, retained the… Continue Reading

A Real Mess, Across The Board

Posted in Legal Malpractice Cases
Professional Negligence, especially in the real estate construction field is the source of a number of litigation problems.  Architects routinely use arbitration clauses.  Zoning issues, including the mistaken analysis of what might be built on a specific lot are themselves subject to governmental immunity.  2649 E. 23 LLC v New York City Dept. of Bldgs.… Continue Reading

A Difference Between Breach of Contract and Negligence

Posted in Legal Malpractice Cases
Board of Mgrs. of 100 Congress Condominium v SDS Congress, LLC  2017 NY Slip Op 05414  Decided on July 5, 2017  Appellate Division, Second Department offers an explanation of the difference between breach of contract and negligence in an architectural negligence case. “The plaintiff, suing on behalf of the unit owners of a condominium building in… Continue Reading

Is Litigation the Sport of Kings? Read This Case

Posted in Legal Malpractice Cases
A couple of entrepreneurs meet in college and start up a translation company.  Many years later, successful as hell, they embark on a new hobby…litigation.  Both take to the sport and become pros. Shawe v Elting 2017 NY Slip Op 31406(U) June 29, 2017 Supreme Court, New York County Docket Number: 153375/2016 is a wonderful… Continue Reading

Summary Judgment Denied…No Facts Given

Posted in Legal Malpractice Cases
Our mission is to cover and report every legal malpractice case we can fine.  In Kings County, there are fewer decisions published electronically than in other places.  So, when the Appellate Division rules without giving any of the underlying facts, we traditionally go to the electronic filing system, and if the case is too old,… Continue Reading

Lateral Attorney Movement and Continuous Representation

Posted in Legal Malpractice Cases
Cordero v Koval Retjig & Dean PLLC  2017 NY Slip Op 05036  Decided on June 20, 2017 Appellate Division, First Department presents an interesting question.  How does continuous representation in legal malpractice affect the statute of limitations amid lateral movement of attorneys from one firm to the next? In this case, the matter travelled with… Continue Reading

They Get You The Attorney…Is There Privity?

Posted in Legal Malpractice Cases
High-level employee is the subject of a state investigation along with the Hospital employer.  The investigation and litigation continue and eventually the hospital and the County succeed.  The employee, not so much.  Employee says that had the attorneys filed a certain appeal, he would have been exonerated.  May he sue the attorneys assigned to him,… Continue Reading

This Is A Rare “Speculation” Case

Posted in Legal Malpractice Cases
When a legal malpractice claim requires that the Court decide how a non-party would have acted, th Court often calls this “speculation.”  Examples are:  what would the other side have done if a specific offer had been made?  How would a court have decided an issue which was never raised?  How much would another driver… Continue Reading

Some of the Dangers of Pro-Se Litigation

Posted in Legal Malpractice Cases
Litigation is a major-league sport.  It can be dangerous, and there can be injuries.  Even when a talented amateur gets involved, there can still be basic problems which remain unsolved.   DeMartino v Golden  2017 NY Slip Op 04253  Decided on May 31, 2017  Appellate Division, Second Department is an example where two intersecting problems caused dismissal.… Continue Reading

The Off-Hand Comment Was Merely Dicta

Posted in Legal Malpractice Cases
Bringing a legal malpractice case based upon a badly handled legal malpractice case is a perilous situation.  Worse still if there is an ambiguous decision upon which it is all based.  So it was in 4777 Food Servs. Corp. v Anthony P. Gallo, P.C.  2017 NY Slip Op 04086  Decided on May 24, 2017 Appellate Division, Second Department… Continue Reading

With No Explanation, An Affirmance

Posted in Legal Malpractice Cases
Sometimes a court decision tells a story.  Sometimes, not.  Richmond Holdings, LLC v David S. Frankel, P.C. 2017 NY Slip Op 04160  Decided on May 24, 2017  Appellate Division, Second Department recites an important (if well understood) standard of legal malpractice, but leaves the reader clueless.  “To sustain a cause of action alleging legal malpractice,… Continue Reading

Start With a Bad Foundation…

Posted in Legal Malpractice Cases
It may be just one townhouse on 18th Street, but the ramifications of a bad “underpinning” to a foundation go on and on.  In Bose v Think Constr. LLC  2017 NY Slip Op 30944(U) May 4, 2017  Supreme Court, New York County Docket Number: 154628/2015  Judge Cynthia S. Kern (just yesterday elevated to the Appellate Division, First… Continue Reading

The Successor Counsel Principle, Illustrated

Posted in Legal Malpractice Cases
Common to legal malpractice litigations are changes to attorney representation during the underlying case.  These changes of attorneys raise not only the statute of limitations, but also the successor counsel principle.  Hufstader v Friedman & Molinsek, P.C. 2017 NY Slip Op 03996 Decided on May 18, 2017 Appellate Division, Third Department is an excellent example. “In December… Continue Reading

How Egregious Must The Act Be?

Posted in Legal Malpractice Cases, Uncategorized
Judiciary Law § 487 is a harsh, almost medieval law, with treble damages and a potential criminal conviction lurking.  The Appellate Division has said that it is not lightly granted, and in Brookwood Cos., Inc. v Alston & Bird LLP  2017 NY Slip Op 00535 [146 AD3d 662]  January 26, 2017  Appellate Division, First Department looks at… Continue Reading

Claim of Attorney Mistake is Utterly Refuted

Posted in Legal Malpractice Cases
Did the defendants wait too long to seek attorney fees as prevailing parties?  If they did wait too long, it could be malpractice.  In Smith, Gambrell & Russell, LLP v Telecommunication Sys., Inc.  2017 NY Slip Op 30951(U)  May 5, 2017  Supreme Court, New York County  Docket Number: 653476/2016  Judge: Anil C. Singh sits (in effect) as an… Continue Reading

Only Some Documents Count

Posted in Legal Malpractice Cases
Was there an attorney-client relationship or not?  That will be the central issue in Prott v Lewin & Baglio, LLP  2017 NY Slip Op 03786  Decided on May 10, 2017  Appellate Division, Second Department.  Defendants sought to prove at the pre-answer stage that the relationship had ended.  The documentary proof was incompetent for purposes of… Continue Reading

A Mild Description of Some Vicious Litigation

Posted in Legal Malpractice Cases
Often, an appellate decision is phrased in mild, soothing language, masking the trench warfare taking place beneath the surface.  Polanco v Greenstein & Milbauer, LLP  2017 NY Slip Op 03707  Decided on May 9, 2017  Appellate Division, First Department is a prime example.  Note the level upon which defendants treated plaintiff’s expert. Beyond the way… Continue Reading

A Dead Client, a Dead Case

Posted in Legal Malpractice Cases
Estate cases sometimes run into the dead man’s statute, and even if not, there are unique difficulties in providing proofs of intent, which are sometimes very, very important.  In Steffan v Wilensky   2017 NY Slip Op 03602  Decided on May 4, 2017  Appellate Division, First Department plaintiff can no longer prove that the bank account… Continue Reading

The Witness Was Not Reminded; The Case Was Lost

Posted in Legal Malpractice Cases
Courts often take claims of attorney mistakes short of the outright failure to start a case not so seriously.  Many the act, which plaintiff claims is a departure, is said to be a failing but permitted strategic decision.  Not so in Caso v Miranda Sambursky Sloane Sklarin Ver Veniotis LLP 2017 NY Slip Op 03607  … Continue Reading

What is A Fiduciary Relationship?

Posted in Legal Malpractice Cases
In legal malpractice cases it is presumed, generally conclusively, that an attorney is a fiduciary of the client.  That principle probably derives from the education and licensing of the attorney.  It can be true in many other relationships, as Milonakis v Haralampopoulos  2017 NY Slip Op   30863(U)  April 26, 2017  Supreme Court, New York County  Docket… Continue Reading

Continuous Representation in the Accounting Field

Posted in Legal Malpractice Cases
The statute of limitations is a fierce barrier to litigation.  Time ticks by in an excruciating but unstoppable parade.  Three years can go by in a flash.  The only toll to the statute (barring another inevitable, death) is continuous representation.  It applies in legal malpractice as well as in accounting malpractice.  In Reville v Melvin Ginsberg… Continue Reading

She Wanted Air – She Got Brick

Posted in Legal Malpractice Cases
Widlitz v Douglas Elliman, LLC  Decided on April 19, 2017  Supreme Court, New York County Bluth, J. is a quintessential New York City story.  Basically, Plaintiff buys into a newly constructed building, does so long prior to completion of the building,  asks and expects “city views” but gets a view of a brick wall.  Whose fault… Continue Reading
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