New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

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Extremely Sophisticated Clients, Extremely Sophisticated Attorneys and Judiciary Law 487

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Justice Kornreich defends the integrity and reach of New York courts in GE Oil & Gas, Inc. v Turbine Generation Servs., L.L.C.  2016 NY Slip Op 50825(U)  Decided on May 27, 2016 Supreme Court, New York County  Kornreich, J. which is a high-level commercial case over the question of loan v. investment.  Of interest to us… Continue Reading

Picking The Right Kind Of Expert is So Important

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Caso v Miranda Sambursky Slone Sklarin, Verveniotis LLP  2016 NY Slip Op 30965(U) May 26, 2016  Supreme Court, New York County  Docket Number: 159192/2015  Judge: Carol R. Edmead is an example of a fact studded complaint which alleges a cause of action, but then shreds under analysis by the Court.  Was it because the wrong kind… Continue Reading

Sure, Plaintiff Pled a Good Case; It is dismissed nevertheless

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Caso v Miranda Sambursky Slone Sklarin, Verveniotis LLP   2016 NY Slip Op 30965(U) May 26, 2016  Supreme Court, New York County  Docket Number: 159192/2015  Judge: Carol R. Edmead is an example of a well pled complaint which shreds at the CPLR 3211 stage.  Today, we  examine the underlying claimed departures and how the Court treated these… Continue Reading

A Very Confusing Manhattan Real Estate Case

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We challenge you to make sense of this follie a deux.  Sanko v Roth  2016 NY Slip Op   30930(U)  May 17, 2016  Supreme Court, New York County  Docket Number: 650025/14 Judge: Gerald Lebovits.  The defendant is either plaintiff’s attorney or not.  He either started cases for plaintiff as his attorney or he did not.  We… Continue Reading

A Different Approach to Legal Malpractice and Overbilling

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It’s the first time we have seen this approach. Plaintiff sues for a declaratory judgment that Defendant attorneys overbilled their client, as well as on claims of legal malpractice.  In Berardi v Phillips Nizer, LLP  2016 NY Slip Op 30860(U)  May 6, 2016  Supreme Court, New York County Docket Number: 157690/2012  Judge: Nancy M. Bannon the… Continue Reading

Bankruptcy and Legal Malpractice

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Plaintiff got herself into a world of money trouble, and did not seem to have a way out.  When Bankruptcy beckoned, she filed a petition.  In doing so, all of her legal malpractice claims were lost.  How did this happen? Burbacki v Abrams, Fensterman, Fensterman, Eisman, Formatto, Ferrara & Wolf, LLP  2016 NY Slip Op 30749(U)… Continue Reading

Effectively Compelled to Settle the Case

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Albany:  Each of the four Appellate Division departments has its own case on the issue of whether a legal malpractice case may be brought after a settlement.  The standard is whether the settlement was “effectively compelled by mistakes of counsel.”  In the Third Department that case is Marchell v. Littman, 107 AD3d 1082.  In the Second Department… Continue Reading

Judiciary Law 487 Applies Only to Attorneys

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Albany, NY:  The Third Department considered a pro-se appeal, and found against plaintiff. Neroni v Follender 2016 NY Slip Op 01527  Decided on March 3, 2016  Appellate Division, Third Department.  All in all, things turned out poorly for plaintiff. “In 2007, defendant Jonathan S. Follender (hereinafter Follender) and his law firm, defendant Jonathan S. Follender, P.C.… Continue Reading

Professional Malpractice is For Professionals

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Vista Food Exch., Inc. v BenefitMall  2016 NY Slip Op 02923  Decided on April 14, 2016 Appellate Division, First Department is an example of the tendency to apply a winning template to almost any situation.  The AD found the template inapplicable in this setting. “Plaintiff alleges that it relied on defendants’ advice in outsourcing its… Continue Reading

Account Stated is a Very Strong Doctrine

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A bill is sent, and a partial payment is made.  More bills are sent, and the client just stops paying. The case does not go well, and there is a dispute between client and attorney.  When the attorney sues for fees, what will be the outcome? More often than not, the account stated principle comes… Continue Reading

Forensic Testing and Spoliation in Legal Malpractice Litigation

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Today we once again look at Doviak v Finkelstein & Partners, LLP  2016 NY Slip Op 01636 Decided on March 9, 2016  Appellate Division, Second Department, this time for the question of spoliation in a legal malpractice setting.  What happens when a particular piece of paper assumes enormous importance and might require forensic testing for fingerprints?… Continue Reading

We Broke It…Now You Fix It

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U Joon Sung v Park  2016 NY Slip Op 30354(U)  February 23, 2016  Supreme Court, New York County  Docket Number: 159279/15  Judge: Kathryn E. Freed is typical of the chameleon-like conduct of defendants in a legal malpractice case.  Without a pause, they take on the coloration and the defenses of the original tortfeasor; in this… Continue Reading

Catastrophic Injury and Tort Liability in Architect Negligence

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We sometimes stray into professional liability other than that of legal malpractice, and today we look at Dormitory Auth. of the State of N.Y. v Samson Constr. Co.  2016 NY Slip Op 01546 Decided on March 3, 2016  Appellate Division, First Department.  The City of New York decided to build a state-of-the-art forensic lab for the Medical… Continue Reading

The Bookkeeper Embezzles, and the Accounting Firm Is Sued

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Accounting malpractice, a sister to attorney malpractice has many of the same principles and doctrines as does legal malpractice.  Interestingly, accounting malpractice has more of an episodic rhythm of yearly tax filings.  A specialized set of statute of limitations rules applies to the tax year filings. Here, however, the accounting firm was sued for its failure… Continue Reading

Speculation and the Successor Attorney Problem Plague a Defunct Restaurant

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O’Neil’s, a defunct restaurant, wanted to move on after the founder’s death.  They hired a law firm which had clients that wanted to take over the space.  The law firm represented both sides, and as one might expect, one side was unhappy with the outcome.  The long-running successful restaurant still owed $ 1.5 million in… Continue Reading

A Matrimonial Legal Malpractice Claim Dismissed

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It wasn’t the pleading of the claim, and it wasn’t merely that the claim was settled.  The Appellate Division, 4th Department found that Counter-claimant wife could not get past a speculative description of damages in Chamberlain, D’Amanda, Oppenheimer & Greenfield, LLP v Wilson  2016 NY Slip Op 00841  Decided on February 5, 2016  Appellate Division, Fourth… Continue Reading

In Pari Delicto and the World of Malpractice

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Whether in legal malpractice, accounting malpractice or legal malpractice about an accounting malpractice claim, In Pari Delicto is a powerful defense widely wielded by defendants.  They say, in essence, we sued a wrongdoer, but failed.  Now you (the wrongdoer’s employer) sue us.  Courts should not intervene between two wrongdoers, and that’s what you are asking them… Continue Reading

A Form Dismissal of a Judiciary Law 487 Claim

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All too often, the Appellate Division affirms Supreme Court’s dismissal of a claim with a blanket statement of black-letter law.  These dismissals, understandable under the unrelenting numbers of cases before the Second Department (for example) fail to inform litigants of what is a proper quanta of factual allegations and those which will fail the test.  Once and… Continue Reading

Collateral Estoppel and Judiciary Law 487

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Plaintiff detects what it considers to be deceitful statements made during litigation.  The statements are brought to the attention of the court which declines to sanction the attorney.  May Plaintiff then sue for JL 487?  Gillen v McCarron  2015 NY Slip Op 01781 [126 AD3d 670]  March 4, 2015 Appellate Division, Second Department suggests the answer… Continue Reading

Judiciary Law 487 – 2015 Case Series

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We are reviewing all of the JL 487 cases from 2015.  Today, we look at Barouh v Law Offs. of Jason L. Abelove  2015 NY Slip Op 06769 [131 AD3d 988]   September 16, 2015  Appellate Division, Second Department in which plaintiff hired attorney to file a shareholders’ derivative action against BEA.  That action settled.  BEA then hired… Continue Reading

It’s New Years Eve and There’s Little News

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Yesterday the Facebook case surfaced, and sadly, there is little news to report today in the Legal Malpractice world.  Take a look at the Prof. Anita Bernstein article in the NYLJ called “Legal Malpractice Liability for Criminal Defense: Rare Yet Possible” Have a happy New Year’s celebration.  See you next week.  … Continue Reading
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