New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

Category Archives: Legal Malpractice Cases

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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

A Lenient View of Continuous Representation

Posted in Legal Malpractice Cases
Continuous representation tolls the running of the statute of limitations, and requires the dual mutual understanding that more work is required to be undertaken after the act of malpractice, and that there continues to be a relationship of trust and confidence between attorney and client. Everyone agrees on those two principles, but the application can… Continue Reading

A Massive Fraud; A Legal Malpractice Claim Too Late

Posted in Legal Malpractice Cases
A massive stock fraud involving Chinese coal, and a US stock offering involved an opinion letter by defendant law firm.  The opinion letter overlooked a red flag, a huge red flag.  Nevertheless, too much time went by, and the claims were all dismissed on the statute of limitations and duplicitive pleading. Murray v Morrison &… Continue Reading

Sometimes Older Cases Age Like Fine Wine

Posted in Legal Malpractice Cases
Schiller v Bender, Burrows & Rosenthal, LLP  2014 NY Slip Op 02422 [116 AD3d 756]  April 9, 2014  Appellate Division, Second Department is a case in which plaintiff argued that he was misled by his matrimonial attorneys and settled the case in a situation where he was “effectively compelled” to settle.  The AD did not like… Continue Reading

What Exactly Is Covered by Malpractice Insurance?

Posted in Legal Malpractice Cases
Vogel v American Guar. & Liab. Ins. Co.  2017 NY Slip Op 02462  Decided on March 29, 2017 Appellate Division, Second Department is the story of a fight between a law firm and its insurer, which will be going to trial.  Did the carrier have to defend this case of legal malpractice which arose over escrowed… Continue Reading

Chapter 13 Bankruptcy, Capacity and Near Privity

Posted in Legal Malpractice Cases
Filing a petition in bankruptcy falls into three well-settled paths, Chapters 7,11 and 13.  The rules and the effects of such a filing vary strongly between them.  In a legal malpractice case, the debtor loses its capacity to sue and damages which might go to the litigant now go to the trustee.  As Nicke v Schwartzapfel… Continue Reading

Court Says: Top Five Reasons This is Not a Judiciary 487 Case

Posted in Legal Malpractice Cases
Doscher v Mannatt, Phelps & Phillips, LLP  2017 NY Slip Op 01973 Decided on March 16, 2017 Appellate Division, First Department is a case with Judiciary Law § 487 claims.  Supreme Court dismissed and the Appellate Division affirmed for these reasons:  Collateral estoppel:  Plaintiff had two chances in the arbitration and both were denied; The arbitration award is a… Continue Reading

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
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