Early Summary Judgment Motion Fails in a Legal Malpractice Case

We have mused on the eagerness with which Courts sometimes exhibit in granting early dismissal of legal malpractice cases, sometimes prematurely grappling with the "but for" portion of the case well before a good record is developed.  In Carter Ledyard & Millburn LLP v Pearl Seas Cruises, LLC  2013 NY Slip Op 33081(U)  December 5, 2013  Sup Ct, New York County  Docket Number: 155872/2013  Judge: Eileen A. Rakower we see a reasoned approach to the motion practice.  The Court notes that there are questions of fact on whether the client objected to attorney's bills, and decides that the affirmative defenses are well pleaded.  From the decision:

"Kennedy avers that in August 2008, pursuant to a written letter of engagement, Pearl Seas retained Plaintiff as legal counsel in connection with a pending arbitration arising out of a contract for the construction of a passenger vessel, Plaintiff continued to represent Pearl Seas through October 7, 2011, Plaintiff continued to send invoices to Pearl Seas for its services, Pearl Seas
admitted receiving and retaining invoices from Plaintiff and made partial payments. In opposition, Defendant submits the affidavit of Charles A. Robertson, which avers that Pearl Seas repeatedly complained about Kennedy's performance, objected to the firm's invoices, and terminated the firm due to Kennedy's performance. Furthermore, Defendant contends that discovery is needed from
Plaintiff, including documents and testimony from Kennedy and his associate, Christopher Rizzo, regarding Defendant's complaints about Kennedy's performance and objection to Plaintiffs invoices."

In light of issues of fact concerning whether Defendant objected to the invoices and Plaintiff's performance and Defendant's outstanding First Notice for Discovery and Inspection and Notice to Take Deposition, Plaintiff's motion for summary judgment is denied."

"On a motion to dismiss pursuant to CPLR §321 l(a)(l) "the court may grant dismissal when documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law." (Beal Sav. Bank v. Sommer, 8 NY3d 318, 324 [2007]) (internal citations omitted) "When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one." (Guggenheimer v. Ginzburg, 43 N.Y.2d
268, 2 7 5 [ 1977]) (emphasis added). A movant is entitled to dismissal under CPLR §3211 when his or her evidentiary submissions flatly contradict the legal conclusions and factual allegations of the complaint. (Rivietz v. Wolohojian, 3 8 A.D.3d 301 [1st Dept. 2007]) (citation omitted). Pearl Seas sets forth the following "facts common to all counterclaims:"

13. Mr. Kennedy advised Pearl Seas that the company would prevail in its dispute with Irving Shipbuilding. He repeatedly gave assurances of success to Pearl Seas, all of which failed, as described below, because of his poor performance and legal malpractice.
14. However, Mr. Kennedy's performance was in sharp contrast to his assurances. In fact, Mr. Kennedy's and Counterclaim Defendants' performance as counsel for Pearl Seas fell far below the standard of care required of attorneys.
15. Specifically, and among other failings, Mr. Kennedy was routinely unprepared for appearances before the arbitration panel and in federal court.

16. Mr. Kennedy also failed to adequately understand critical legal issues, including the law relating to the issuance and timing of classification certificates. 17. Mr. Kennedy's cross-examinations of key witnesses at the arbitration hearing were poor. They were unfocused, poorly conceived, and poorly executed. Indeed, Mr. Kennedy's cross-examinations were so poor that
Pearl Seas forced him to allow his junior associate to examine a key witness. 18. Mr. Kennedy's arguments to the arbitration panel were equally poor. He failed to make obvious arguments, and was extremely combative with the panel. 19. Mr. Kennedy also botched a key witness interview with a potentially critical witness, James Shephard, which further compromised Pearl Seas' case.
20. From Pearl Seas' perspective, Mr. Kennedy's poor performance in the arbitration had caused the arbitration panel to tum against it, notwithstanding his repeated assurances of success. Indeed, Pearl Seas expected to do far better than they ultimately did in the arbitration, which
was a direct result of Counterclaim Defendants' malpractice. 21. Mr. Kennedy also exhibited strange and unprofessional behavior outside of the arbitration. He was unwilling to take advice from anyone else, and did not work well with the term that Pearl Seas had put in place. He was unfocused and scatterbrained. He would frequently cut critical meetings short in order to get home to watch a television program that he said he was "addicted to."
22. Fearful that it was going to lose what was a winnable case, on or about October 7, 2011, Pearl Seas terminated Mr. Kennedy and his firm's representation of the company. Pearl Seas was forced to retain another law firm, which only added to the expenses related to the arbitration, but which
did turn the case around immediately and produced an acceptable result. 23. In total, Pearl Seas paid Counterclaim Defendant more than $2.2 million for its services, which had no value. That does not include the amounts that Counterclaim Defendant claim are due in this lawsuit.
24. Pearl Seas repeatedly made clear that it was unhappy with Mr. Kennedy's performance, and that it disputed the amounts billed to it."

"Accepting all allegations as true, Defendant has stated a counterclaim for legal malpractice and Plaintiffs proffered evidentiary submissions do not flatly contradict the legal conclusions and factual allegations of this counterclaim."


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