New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

Category Archives: Legal Malpractice News

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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 [&hellip… 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 [&hellip… 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. [&hellip… 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 [&hellip… 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 [&hellip… 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 [&hellip… 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 [&hellip… 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 [&hellip… 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 [&hellip… 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, [&hellip… Continue Reading

Deceit in the Divorce World

Posted in Legal Malpractice News
Husband and wife live and love for a long time, then things descend into divorce.  All of a sudden, money gifts  from the in-laws turn into loans, and the husband is asked to repay her parents.  He’s aghast, and fights back.  Eventually wife agrees that these were not loans at all.  Does the husband have [&hellip… Continue Reading

Settlement After Threats and Legal Malpractice

Posted in Legal Malpractice News
Settlement brings the end of a litigation, and sometimes bliss.  Other times settlement brings remorse.  Parties must sometimes be pushed into settlements, and an inherent conflict between the attorney and the client might surface when their interests diverge at settlement.  In Salazar v Sacco & Fillas, LLP  2014 NY Slip Op 00980 [114 AD3d 745]  [&hellip… Continue Reading

No Matter Whether it is Judiciary Las 487 or Legal Malpractice, You Still Need to Follow the Rules

Posted in Legal Malpractice News
The basic rules of summary judgment, well understood and well settled must be followed.  Whether its the need for a person with knowledge to give an affidavit, or that you need to provide prima facie entitlement to get the court to look at your papers, the basics must be followed.  Cullin v Spiess  2014 NY [&hellip… Continue Reading

Pecuniary Loss in a Legal Malpractice Case

Posted in Legal Malpractice News
One of the recent limitations on legal malpractice cases has been a strict adherence to the need for pecuniary loss.  The Court of Appeals held that even incarceration by itself was insufficient. Dombrowski v Bulson 2012 NY Slip Op 04203 [19 NY3d 347 ]Here in Fountain v Ferrara  2014 NY Slip Op 03947 [118 AD3d [&hellip… Continue Reading

Supreme Court Has Its Doubts; The Appellate Division Has None

Posted in Legal Malpractice News
Plaintiff brings a legal malpractice case against attorney and alleges that the attorney did not timely file a notice of appeal, that the underlying case was dismissed on discovery grounds ant that the mistake was by the attorney, and that the attorney failed to convey a settlement offer.  Supreme Court considers the motion and finds [&hellip… Continue Reading

Land, Lots of It, and Legal Malpractice

Posted in Legal Malpractice News
OK, so you own a home in the NY Metropolitan area, and have some land.  Houses around here have a half-acre, or an acre or even 2-3 acres.  That’s a lot of land around here.  Now imagine you have so much land that you and the golf course next door are arguing over a mere 5 [&hellip… Continue Reading

Judiciary Law 487 as an Afterthought

Posted in Legal Malpractice News
Lawyers arguing over legal fees make up a surprising number of law suits.  When one reads down the list of AD cases to be argued, the number of law firms as parties is striking.  in Tassan v Pugatch & Nikolis  2014 NY Slip Op 33441(U)  December 29, 2014  Supreme Court, Suffolk County  Docket Number: 30031/2012  Judge: [&hellip… Continue Reading

Legal Malpractice in the Settled Case

Posted in Legal Malpractice News
Judge Lewis of Supreme Court, Kings County decides a legal malpractice case coming from an motor vehicle negligence case.  Defendant attorneys brought the case in Civil Court in which jurisdiction is limited to $25,000.   They did not sue all the potential drivers and owners.  Client took the case away from defendants and gave it to [&hellip… Continue Reading

Judiciary Law 487 in a Real Estate Setting

Posted in Legal Malpractice News
The Business Judgment rule protects condo and coop boards from many claims. Chief among them are the day-to-day decisions on how to run the building.  Do we fix the elevators?  Do we change the boiler?  Shall we give the super a raise?  Owners who are unhappy have a very limited number of options, as is [&hellip… Continue Reading

Perhaps Showing Up For the Deposition Was the Better Choice

Posted in Legal Malpractice News
In this legal malpractice action Estate of Alston v Ramseur  2015 NY Slip Op 00490  Decided on January 21, 2015 Appellate Division, Second Department the attorney is defending against a claim that there was a departure from good practice which proximately damaged the client.  In defense, the attorney allowed a conditional order to be entered, [&hellip… Continue Reading

Legal Malpractice in the Majors

Posted in Legal Malpractice News
Clients sometimes exaggerate or have high hopes about  their damages.  They sometimes  do so in order to interest attorneys in taking their legal malpractice case.  Often, they will inform the potential attorney that the damages are in the MILLIONS!  Sometimes it’s true.  However, this story from the New York Law Journal today eclipses any of those [&hellip… Continue Reading

One Motion Succeeds, One Fails in a Legal Malpractice Case

Posted in Legal Malpractice News
Summonses and Complaints served at the very last minute are a study in tension and worry.  With good reason, practitioners should fear the NY rules on service of pleadings.  Has the process server found a person of discretion?  Is in hand service good enough for the case? Has the after-mailing been performed correctly?   Sometimes, it is not [&hellip… Continue Reading
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