New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

Category Archives: Legal Malpractice Cases

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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

What Makes A Sustainable Legal Malpractice Case?

Posted in Legal Malpractice Cases
A good legal malpractice case alleges that there were departures from good practice, which led to a bad result and that but for the departure from good practice there would have been a better result, with ascertainable damages.  This is exactly what plaintiff in Hall v Schrader, Israely, Deluca & Waters, LLP   2017 NY Slip Op… Continue Reading

The 2016 Judiciary Law 487 Series

Posted in Legal Malpractice Cases
Continuing our review of JL 487 cases from 2016 we come across the ironic gem of a JL 487 case which ends in plaintiff’s attorney being sanctioned for bringing a case which (in essence) seeks a sanction for deceit. Lawrence Ripak Co., Inc. v Gdanski  2016 NY Slip Op 06805 [143 AD3d 862]  October 19,… Continue Reading

Was it Strategy or Mistake?

Posted in Legal Malpractice Cases
Hindsight reasoning, roundly disliked by the judiciary is at the heart of legal malpractice.  Legal malpractice always comes down to a backwards comparison of the hypothetical better outcome v. the actual outcome.  This is the essence of the “but for” question.  Would there have been a better economic outcome “but for” the mistakes (or acts)… Continue Reading

More Worker’s Compensation Problems and Professional Negligence

Posted in Legal Malpractice Cases
Just as in the N.Y. Workers’ Compensation Board v. Wang case, so Accredited Aides Plus, Inc. v Program Risk Mgt., Inc. 2017 NY Slip Op 00058 Decided on January 5, 2017 Appellate Division, Third Department Garry, J.P., J. deals with groups that have failed to make sure that their Workers’ Compensation programs actually follow generally accepted accounting and insurance procedures,… Continue Reading

Judiciary Law 487 Claim Denied

Posted in Legal Malpractice Cases
Brookwood Cos., Inc. v Alston & Bird LLP   2017 NY Slip Op 00535 Decided on January 26, 2017 Appellate Division, First Department teaches us a number of lessons. Contracting for the government can be big business, and can lead to expensive litigation.  Reliance on specific US statutes can resolve a case, but over-reliance may be rejected by… Continue Reading

More of Last Years JL 487 Cases

Posted in Legal Malpractice Cases
We continue the year 2016 survey of Judiciary Law § 487 cases.  Be sure to see Prof. Anita Bernstein’s article in today’s NYLJ on vicarious liability and JL § 487. 18.  TSR Group, LLC v Levitin 2016 NY Slip Op 31322(U) July 13, 2016 Supreme Court, New York County Docket Number: 651356/2015 Judge: Eileen A. Rakower  … Continue Reading
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