New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

Category Archives: Legal Malpractice Cases

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A Very Old Case Ends

Posted in Legal Malpractice Cases
Daniel R. Wotman & Assoc., PLLC v Chang   2017 NY Slip Op 02141  Decided on March 23, 2017  Appellate Division, First Department is a 2010 case which has finally reached its final resting place.  What started as a fee collection case ends as a fee collection case, with the legal malpractice issues dismissed and affirmed… Continue Reading

Please Explain Plaintiff’s Choices to Me?

Posted in Legal Malpractice Cases
Pro-se legal malpractice cases often unearth interesting descriptions of human behavior.  Sometimes they are baffling.  This is an example. Checksfield v Berg  2017 NY Slip Op 01924  Decided on March 16, 2017  Appellate Division, Third Department. “Plaintiff commenced this legal malpractice action in March 2002, alleging that defendant failed in his responsibility to commence an action… Continue Reading

No Fatico Hearing, No Malpractice

Posted in Legal Malpractice Cases
Ziming Shen v Morvillo, Abramowitz, Grand, Iason, Silverberg, P.C. 2017 NY Slip Op 30500(U)  March 8, 2017  Supreme Court, County of New York  Docket Number: 150808/2016 Judge: Erika M. Edwards is a rare example of a criminal defense attorney legal malpractice case which is not dismissed on the typical grounds that plaintiff cannot show actual innocence.  Instead,… Continue Reading

Taxes, Dementia, Death and a Missed Argument

Posted in Legal Malpractice Cases
There are two alternative paths in a legal malpractice statute of limitations argument on when the statute commences.  The two choices are at the giving of the challenged advice or when all the elements of a cause of action exist such that a claim may properly be brought.  Obviously the second theory may yield later… Continue Reading

Not An Account Stated, But Successful Claim, Nevertheless

Posted in Legal Malpractice Cases
Kasowitz, Benson, Torres & Friedman LLP v Amira  Nature Foods, Ltd.  2017 NY Slip Op 30488(U) March 13, 2017 Supreme Court, New York County  Docket Number: 158126/2016 Judge: Carol R. Edmead is a fine example of the attorney fee claim-legal malpractice counterclaim paradigm.  This one ended well for the law firm. “On August 6, 2015, Bruce Wacha (“Wacha”), Defendant’s… Continue Reading

Did This Pro-Se Plaintiff Go Too Far?

Posted in Legal Malpractice Cases, Uncategorized
Sometimes, people get a tad too worked up over the small things.  Ruffalo v Iannace 2017 NY Slip Op 50296(U)  Decided on March 9, 2017  Supreme Court, Westchester County Marx, J. might be an example. “Plaintiff moves for an order permitting him to proceed as a poor person and for assignment of counsel in this… Continue Reading

Settlements and Res Judicata

Posted in Legal Malpractice Cases
Normally when a legal malpractice case is settled, that’s the end of it.  Everyone walks away unhappy, but understanding the the dispute is finally over.  Not so in Clerico v Pollack 2017 NY Slip Op 01669  Decided on March 8, 2017  Appellate Division, Second Department. Plaintiffs hired attorneys to sell a house.  The sale took place,… Continue Reading

Complicated Claims Brushed Aside After Bankruptcy Schedule Examined

Posted in Legal Malpractice Cases
Two recurring doctrines in legal malpractice tend to cull out complicated claims on a regular basis.  They are both seen in Rubin v Duncan, Fish & Vogel, L.L.P.  2017 NY Slip Op 01646  Decided on March 7, 2017  Appellate Division, First Department. Failure to schedule legal malpractice claims in either a Chapter 7 or 11 filing… Continue Reading

A Titan of Criminal Defense and Some Problems in Legal Malpractice

Posted in Legal Malpractice Cases
Bruce Cutler, scion of a royal Criminal Defense family (father Murray was a big player, brother a federal prosecutor) started off as a Kings County ADA, rising to Homicide Bureau Chief.  (Full disclosure…I was a lowly ADA there).  Cutler was a demigod in Brooklyn.  Then he moved onto criminal defense, eventually representing John Gotti and obtaining three… Continue Reading

What Exactly is Fiduciary Duty ?

Posted in Legal Malpractice Cases
Terms that are often used, often lose their meaning.  What is legal malpractice?  It’s a situation in which  an attorney is retained to represent a client, takes on the case, departs from the standard of good practice for an attorney in similar representations, and where that departure from good practice proximately leads to a bad… Continue Reading

No Privity, No Case

Posted in Legal Malpractice Cases
Risk Control Assoc., Inc. v Maloof, Lebowitz, Connahan & Oleske, P.C.  2017 NY Slip Op 01654 Decided on March 7, 2017 Appellate Division, First Department was dismissed and affirmed for the reason that “The factual allegations and the damages sought in the instant action are the same as the factual allegations underlying the legal malpractice claims and the… Continue Reading

Legal Malpractice Claims Lost in Bankruptcy Mistakes

Posted in Legal Malpractice Cases
Bankruptcy plays a major disrupting role, and in Kleinplatz v Nathan L. Dembin & Assoc., P.C. 2017 NY Slip Op 01645  Decided on March 7, 2017 Appellate Division, First Department we see plaintiff losing the right to sue in legal malpractice.  It vanished when he repeatedly failed to list the potential claim as an asset. “Plaintiff’s prolonged failure… Continue Reading

The Rare Plaintiffs’ Summary Judgment Success in Legal Malpractice

Posted in Legal Malpractice Cases
Summary judgment in favor of defendant-attorneys is common; summary judgment in favor of the plaintiff-client is rare.  Genesis Merchant Partners, L.P. v Gilbride, Tusa, Last & Spellane, LLC 2017 NY Slip Op 30430(U) February 27, 2017 Supreme Court, New York County Docket Number: 653145/2014 Judge: Nancy M. Bannon is an example of plaintiffs’ case, well-played.… Continue Reading

Indemnification in Professional Negligence

Posted in Legal Malpractice Cases
Real estate and real estate development are always hot topics in New York, never more so that after a real estate developer won the presidency.  Politics notwithstanding, indemnification in real estate development is always pertinent, and in  Board of Mgrs. of the Norfolk Atrium Condominium v 115 Norfolk Realty LLC 2017 NY Slip Op 30348(U) February 23, 2017 Supreme… Continue Reading

Speculation and Discretion Are Fatal to Legal Malpractice Case

Posted in Legal Malpractice Cases
Gersh v Nixon Peabody LLP 2017 NY Slip Op 30363(U)  February 27, 2017 Supreme Court, New York County  Docket Number: 155668/2016  Judge: Carol R. Edmead is an example of the hurdles over which a legal malpractice plaintiff must jump.  Its a complicated but familiar estate planning issue.  Decedent was previously married with children.  Separation agreement many… Continue Reading

Fighting In The Trenches in This Legal Malpractice Case

Posted in Legal Malpractice Cases
The parties in Kelleher v Adams  2017 NY Slip Op 01542  Decided on March 1, 2017  Appellate Division, Second Department have descended from philosophical discussions of the relationship of privity to contract and are fighting over who is permitted to represent the plaintiffs.  Initially plaintiff’s attorney was disqualified.  That changed on appeal. “The defendants Jeffrey M.… Continue Reading

Assignments of Legal Malpractice Cases and Judicial Estoppel

Posted in Legal Malpractice Cases
Molina v. Faust Goetz Schenker & Blee, (S.D.N.Y. 2017) illustrates the difficulty of assignments of legal malpractice cases.  To be sure, assignment is permitted.  “While legal malpractice claims may be assigned in New York (even to former litigation adversaries), nothing prevents a New York court from applying judicial estoppel to a case where all of its… Continue Reading

This Is The Legal Malpractice Case Often Used As An Example

Posted in Legal Malpractice Cases
Oral argument sometimes drifts to the “analogy” stage, where an example must be used in order to show the simplest type of legal malpractice case.  It is often the particular fact pattern found in Detoni v McMinkens  2017 NY Slip Op 01334  Decided on February 22, 2017  Appellate Division, Second Department. “On November 19, 2005, the… Continue Reading

Sure, Things Went Wrong…But Was It This Guy?

Posted in Legal Malpractice Cases
Superior Tech. Solutions, Inc. v Rozenholc  2017 NY Slip Op 01136 Decided on February 10, 2017 Appellate Division, First Department is an example of trying anything to fix a deadly problem.  When this happens, anyone in the general vicinity becomes a target. From what we can glean, longtime tenant gets into a problem with the landlord, and… Continue Reading

One Legal Malpractice Case…Three Lessons in Legal Malpractice

Posted in Legal Malpractice Cases
Alphas v Smith 2017 NY Slip Op 01277  Decided on February 16, 2017 Appellate Division, First Department packs a semester’s worth of lecture into one short case. Lesson 1:  Privity in a Small Corporate Setting.  “In opposition to defendants’ motion, plaintiff’s counsel submitted an affirmation citing Good Old Days Tavern v Zwirn (259 AD2d 300 [1st Dept… Continue Reading

A Rare Judiciary Law 487 Case With Some Lessons

Posted in Legal Malpractice Cases
Judiciary Law § 487 cases that survive appeal are rare; more so when it is against opposing counsel.  Here, in Kimbrook Rte. 31, L.L.C. v Bass 2017 NY Slip Op 01083 Decided on February 10, 2017 the Appellate Division, Fourth Department states two principles of JL § 487:  no need to bring the claim in the underlying case, and little… Continue Reading

Could This Immigration Legal Malpractice Case Be More Timely?

Posted in Legal Malpractice Cases
Immigration and travel bans are the news this week, and Trapp-White v Fountain  2017 NY Slip Op 00948  Decided on February 7, 2017 Appellate Division, First Department illustrates that what would normally be damages in the real world are simply waived away in the legal malpractice world.  Emotional distress?  Non-pecuniary loss?  Not in this world! So, Plaintiff… Continue Reading

Why Exactly Was She Arrested?

Posted in Legal Malpractice Cases
In a puzzling case, Mohyi v Karen G. Brand, P.C. 2017 NY Slip Op 30185(U) January 27, 2017 Supreme Court, New York County Docket Number: 157823/15 Judge: Debra A. James disposed of a Judiciary Law § 487 claim, allowing the case to continue on other claims.  In this electronic age of papers, and the sparsity of a “court file” we wonder… Continue Reading
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