New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

Category Archives: Legal Malpractice News

Subscribe to Legal Malpractice News RSS Feed

A Scam, an Attorney, But No Legal Malpractice

Posted in Legal Malpractice News
Goldin v Tag Virgin Is. Inc.  2014 NY Slip Op 31308(U)  May 20, 2014  Supreme Court, New York County Docket Number: 651021/2013  Judge: Eileen Bransten is an example of overreaching.  The law of legal malpractice in New York cleaves to a policy of strict privity.  If you did not hire the attorney, and the attorney… Continue Reading

A Skirmish on the Way to a Battle

Posted in Legal Malpractice News
When a client has multiple remedies, such as personal injury, wrongful death, pain and suffering, as well as workers’ compensation, sometimes the attorneys focus on one to the detriment of another remedy.  Such is what seems to have happened in Lirano v Grimble & Logudice, LLC    2014 NY Slip Op 32346(U)   September 3, 2014  Supreme… Continue Reading

No Deceit Proven; Overbilling, Perhaps

Posted in Legal Malpractice News
Some of the largest law firms in New York are the personal injury giants Jacoby & Meyers LLP and Finkelstein & Partners.  All across upstate New York, wherever there are cars and personal injuries, you’ll find their offices.  One of the institutional problems of the personal injury world is the expense of litigation.  Smaller firms… Continue Reading

Perjury or Deceit…You Decide

Posted in Legal Malpractice News
Outgoing Supreme Court Justice Milton Tingling gave short shrift to Plaintiff’s argument that Defense counsel had committed a violation of Judiciary Law § 487.  The judge let plaintiff know that enough was enough on this “perjury” thing.  Anyway, read it in  Manhattan Telecom. Corp. v Jackson  2014 NY Slip Op 32053(U)   February 24, 2014   Sup Ct,… Continue Reading

Summary Judgment Reversed, Attorneys Still In The Case

Posted in Legal Malpractice News
The Second Department rarely reverses Supreme Court’s grant of Summary Judgment to the attorneys in a legal malpractice case, but Smith v Kaplan Belsky Ross Bartell, LLP  2015 NY Slip Op 02108  Decided on March 18, 2015  Appellate Division, Second Department is one example. “The plaintiffs were former executives of Odyssey Pictures Corporation (hereinafter Odyssey) and members… Continue Reading

When Are Hands Unclean Enough in a Legal Malpractice Case?

Posted in Legal Malpractice News
Pari Delicto or unclean hands is a principal that the courts should not decide between wrongdoers.  When may the court use this principal to wipe the board clean and allow no-one to bring a legal malpractice or a judiciary law 487 claim? In Savitt v Greenberg Traurig, LLP  2015 NY Slip Op 02003  Decided on March 12, 2015… Continue Reading

A Bright Line Rule In Continuous Representation

Posted in Legal Malpractice News
When does Continuous representation end?  Sometimes a matter of days can be decisive.  In Alizio v Ruskin Moscou Faltischek, P.C.  2015 NY Slip Op 01909  Decided on March 11, 2015 Appellate Division, Second Department it was the difference between April 20 and May 10.  If continuous representation ended on April 20 the complaint was late.  If… Continue Reading

Motion To Dismiss Denied, But Little Advice For the Practitioner

Posted in Legal Malpractice News
When does continuing representation end?  In the absence of a bright line rule, the Courts and practitioners have to rely upon arguments that the representation continued while there was a continuing relationship of trust and confidence and a shared understanding of the need for more work on the case.  An alternative bright line rule might… Continue Reading

Unpaid Legal Fees Are a Very Common Cause of Legal Malpractice Cases

Posted in Legal Malpractice News
CLEs on professional malpractice always discuss the question of whether attorney fee claims trigger legal malpractice counterclaims.  They do.  Sometimes the counterclaim is unwarranted.  Often it is not.  The coupling of fee claim-malpractice counterclaim stains the entire field.  Attorneys commonly brand all legal malpractice as fee-avoidance or, at best, misguided emotional response.   Anyway… Wagner… Continue Reading

The Extremely Rare Criminal Legal Malpractice Case

Posted in Legal Malpractice News
In general, the rule in legal malpractice claims after a criminal prosecution is that the plaintiff must show “actual innocence” in order to sue the criminal defense attorney.  This principal prevents 99% of criminal defendants from proceeding.   Meralla v Goldenberg   2015 NY Slip Op 01873   Decided on March 5, 2015   Appellate Division, First Department is… Continue Reading

Another Judiciary Law 487 Claim Survives in Kings County

Posted in Legal Malpractice News
In a fairly normal fashion, without much to indicate why the pleading was good enough, Supreme Court, Kings County has denied a CPLR 3211 motion to dismiss in Farkas v Mascolo 2015 NY Slip Op 01605  Decided on February 25, 2015  Appellate Division, Second Department. “On a motion pursuant to CPLR 3211(a)(7) to dismiss a complaint… Continue Reading

Summary Judgment Denied, More Discovery Permitted in a Legal Malpractice Case

Posted in Legal Malpractice News
We must say that we’re puzzled over the Appellate Division’s reference to a CPLR 3211(a) motion “to dismiss the complaint insofar as asserted against them, or, in the alternative, for summary judgment dismissing the complaint insofar as asserted against them, or to compel additional discovery.”  Portilla v Law Offs. of Arcia & Flanagan  2015 NY Slip… Continue Reading

No Expert? Motion to Dismiss Denied

Posted in Legal Malpractice News
Issues that are beyond the "ken" of ordinary jurors require expert testimony says the First Department in Wadsworth Condos, LLC v Dollinger Gonski & Grossman 2014 NY Slip Op 00930 [114 AD3d 487] February 13, 2014 Appellate Division, First Department.  "Plaintiff’s belatedly asserted grounds for alleging legal malpractice may be entertained since they involve no… Continue Reading

Judiciary Law 487 Relief “Not Lightly Given”

Posted in Legal Malpractice News
Judiciary Law 487, the attorney-deceit statute, part of the common law, is reserved by the Appellate Division for really really bad conduct.  It is not "lightly given."  While proof does not require "clear and convincing" evidence, in practice it is rarely granted, and overwhelmingly dismissed by the Courts.  So it is in Chowaiki & Co.… Continue Reading

A Legal Malpractice Case Lost on the “But For” Rule

Posted in Legal Malpractice News
As we discussed yesterday, courts are eager to dismiss legal malpractice cases, early in the case or late, on the question of whether Client can show that "but for" the attorney’s negligence there would have been a better economic outcome for the client. Mackey Reed Elec., Inc. v Morrone & Assoc., P.C.  2015 NY Slip Op… Continue Reading

Too Quick to Dismiss a Ledgal Malpractice Case

Posted in Legal Malpractice News
We believe that a higher percentage of legal malpractice cases suffer dismissal, either at the answer or at summary judgment than do other forms of litigation in negligence.  Admittedly, we have but anecdotal evidence.  Nevertheless, Facie Libre Assoc. I, L.L.C. v Littman Krooks, L.L.P. 2015 NY Slip Op 01389  Decided on February 17, 2015  Appellate… Continue Reading

Continuous Representation and the “Nice Relationship”

Posted in Legal Malpractice News
Clients get the benefit of an extended statute of limitations under the principal of continuous representation.  It arose out of "continuing treatment" in the medical malpractice world.  In legal malpractice, there must be some evidence of a "continuing relationship of trust and confidence" between client and attorney.  Absent that, the statute begins on the day… Continue Reading

Real Estate and Legal Malpractice

Posted in Legal Malpractice News
It’s a well known meme that real estate is close to the heart of New Yorkers.   "Location, location, location" is a phrase bandied about even by schoolchildren.  So, it’s no surprise that real estate transactions may figure in a legal malpractice setting.  Here, in Rojas v Paine  2015 NY Slip Op 01258  Decided on February… Continue Reading

Venue in a Legal Malpractice Case

Posted in Legal Malpractice News
Where Plaintiff may sue the attorney is the question of venue.  Generally speaking, it is in the county where the plaintiff resides, or where the defendant resides.  PCs "reside" in the county where their principal place of business is.  However, the location of the attorney’s office need not be the county where the principal place… Continue Reading

The Successor Attorney Defense in Legal Malpractice

Posted in Legal Malpractice News
Attorney 1 handles a case for a period of time, and then the case is turned over to Attorney 2.  At the time of transfer the case is active nor is under imminent threat of dismissal.  Later, while Attorney 2 is handling the case, something goes wrong, and a legal malpractice case is started against… Continue Reading

Third Appeal in a Very Hard Fought Legal Malparctice Case

Posted in Legal Malpractice News
It’s rare for the AD to start off a decision with a recap of two earlier appeals.  In Dischiavi v Calli 2015 NY Slip Op 01116   Decided on February 6, 2015  Appellate Division, Fourth Department four different defense law firms have been making motions to dismiss, so far, without any success.  On this third try,… Continue Reading
.