An Intramural Fight in the Personal Injury Big Leagues

Jacoby & Meyers and Finkelstein & Partners are players in the personal injury big leagues.  Finkelstein & Partners may be the biggest law firm in NY state.  In any event, they deal with a huge number of personal injury cases.  One of the biggest concerns in personal injury litigation is who will pay for the expenses as the cases move forward.  In Flomenhaft v Finkelstein  2014 NY Slip Op 51121(U)  Decided on July 22, 2014  Supreme Court, New York County   Jaffe, J. we see one attorney who moved to J&M and then left in a battle all over the state.  For the most part, the claims of legal malpractice and libel have something to do with litigation funding, and how it affects the plaintiffs.

"On May 2, 2005, non-party Joel Harrison retained defendant Finkelstein & Partners, LLP (F & P) to represent him in a personal injury case. Soon thereafter, F & P brought the action in Broome County Supreme Court. Plaintiff, who had moved his practice to defendant Jacoby & Meyers, LLP (J & M) in April 2009, was also named counsel to F & P, and was assigned as lead trial attorney on the Harrison matter.

Eight months later, on December 28, 2009, plaintiff abruptly resigned from J & M. Shortly thereafter, on January 25, 2010, Harrison discharged F & P and retained plaintiff to [*2]represent him on the personal injury matter.

In March 2010, J & M commenced an action against plaintiff and his law firm in Orange County, based on a loan it had allegedly made to him. That action was transferred to this court (Index No. 403550/10).

On June 16, 2010, Harrison discharged plaintiff and re-retained F & P on his personal injury action.

On August 6, 2010, during the pendency of the personal injury action, Harrison, represented by F & P, brought an action in Broome County Supreme Court against plaintiff, advancing in his verified complaint causes of action for conversion, breach of fiduciary duty, legal malpractice, and fraud, based on allegations that plaintiff had induced him to obtain litigation funding for the personal injury action and then converted the proceeds to his own use. (NYSCEF 9).

"By notice of motion, defendants move pursuant to CPLR 3211(a) for an order dismissing counts one and two of the complaint, striking the request for punitive damages, and imposing sanctions. Plaintiff opposes and by cross motion moves for an order granting him leave to amend his summons with notice and/or complaint."

"It is well-settled that "a statement made in the course of legal proceedings is absolutely privileged if it is at all pertinent to the litigation." (Sexter, at 171). The privilege "applies to statements made in or out of court, on or off the record, and regardless of the motive with which they were made." (El Jamal v Weil, 116 AD3d 732 [2d Dept 2014]; Sexter, 38 AD3d at 171). The privilege does not extend to statements that are not pertinent to the proceedings. (Youmans v Smith, 153 NY 214, 219 [1897]). Courts are liberal in applying the privilege even where the statement is only possibly pertinent to the proceedings "because the due administration of justice requires that the rights of clients should not be imperiled by subjecting their legal advisers to the constant fear of suits for libel or slander." (Youmans, 153 NY at 219-220).

Here, accepting as true the allegations contained in the complaint, as I must on this motion, as the defamatory statement is alleged to have been made by Finkelstein to Harrison the day before Harrison was to be deposed in his action against plaintiff, it was made in the course of a legal proceeding, a proposition not challenged by plaintiff. And, as the statement pertains to the allegations set forth in that legal proceeding, it is absolutely privileged."

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