New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

Category Archives: Legal Malpractice Cases

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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

An Intemperate Act Adds Years to a Litigation

Posted in Legal Malpractice Cases
Litigation is difficult, and takes a long time.  When snap decisions are made, they often add to the difficulties, not resolve them. Liew v Jeffrey Samel & Partners  2017 NY Slip Op 03165 Decided on April 26, 2017  Appellate Division, Second Department is an example.  While the parties were muddling towards trial, a sudden dismissal threw… Continue Reading

More Contradictory Judiciary Law 487 Cases

Posted in Legal Malpractice Cases
Does a successfully pleaded Judiciary Law § 487 case require a conviction for a misdemeanor ?  A recent Magistrate’s report in the Western District of New York strikingly says so.  In Bounkhoun v. Barnes, the magistrate determined that no JL 487 case may lay without a misdemeanor conviction. The First Department may not think the same way.  in… Continue Reading

A New Take on Judiciary Law 487 (Part II)

Posted in Legal Malpractice Cases
Chandy Bounkhoun, Plaintiff,  v.  Steven E. Barnes, Esq. et al., Defendants. No. 15-CV-631A. United States District Court, W.D. New York.  April 11, 2017 is a stunning new decision from the Western District of New York.  Magistrate Scott takes us from Medieval England to colonial times to look at the the criminal law underpinnings of Judiciary Law… Continue Reading

A Completely New Take on Judiciary Law 487

Posted in Legal Malpractice Cases
Chandy Bounkhoun, Plaintiff,  v.  Steven E. Barnes, Esq. et al., Defendants. No. 15-CV-631A. United States District Court, W.D. New York.  April 11, 2017 is a stunning new decision from the Western District of New York.  Magistrate Scott takes us from Medieval England to colonial times to look at the the criminal law underpinnings of Judiciary Law… Continue Reading

In Name Only

Posted in Legal Malpractice Cases
Often, a Judiciary Law § 487 claim is mentioned, or even discussed, but not resolved in a case. Gerard v Cahill    2017 NY Slip Op 02779  Decided on April 12, 2017  Appellate Division, Second Department is such an example.  A real estate dispute with overtones of fraud, there is a 487 claim.  Was it decided?… Continue Reading

A Full Catalog of Defenses and Counterclaims

Posted in Legal Malpractice Cases
Pick & Zabicki LLP v Wu  2017 NY Slip Op 30687(U)  April 4, 2017  Supreme Court, New York County  Docket Number: 155702/2016  Judge: Gerald Lebovits is interesting because, although a generic attorney-fee claim with generic defenses, it is a very complete generic listing.  So, read this case for the long discussion of 20 affirmative defenses… Continue Reading

The Rare Legal Malpractice Trial and Even Rarer Defenses

Posted in Legal Malpractice Cases
Hattem v Smith  2017 NY Slip Op 02872  Decided on April 13, 2017  Appellate Division, Third Department is a rare legal malpractice tried to verdict.  It involves the sale of a business and the aftermath.  Even more rare were the “comparative fault” and “mitigation of damages” defenses.  Here is how the Third Department explains: “Plaintiff… Continue Reading

Solve This Riddle

Posted in Legal Malpractice Cases
One sentence in 3rd & 6th, LLC v Berg  2017 NY Slip Op 02768  Decided on April 12, 2017 Appellate Division, Second Department opinion says two things.  When does the statute of limitations commence?  When the negligent act takes place or when all the elements come together? “An action to recover damages arising from legal malpractice… Continue Reading

Good Idea…Not Enough Evidence

Posted in Legal Malpractice Cases
Overbilling by an attorney as the basis of a breach of fiduciary duty claim.  It’s a good idea.  The Breach claim will not be dismissed as duplicitive, a positive finding leads to significant damages.  All-in-all not too bad? In Genesis Merchant Partners, LP v Gilbride, Tusa, Last & Spellane LLC  2017 NY Slip Op 02753  Decided… Continue Reading

In Architect’s Malpractice Cases Time Is Measured Differently

Posted in Legal Malpractice Cases
In legal malpractice, the statute of limitations commences with the negligent act, which may be tolled for continuous representation.  With architects it is different, as shown in New York City School Constr. Auth. v Ennead Architects LLP  2017 NY Slip Op 02387  Decided on March 28, 2017  Appellate Division, First Department. “On this CPLR 3211(a)(5) motion, defendant… Continue Reading
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