Some Head Scratching by the Court in a Legal Malpractice
Medicare costs and reimbursements in the Nursing Home field is "arcane" and probably unknown to readers of legal malpractice blog. In Berkowitz v Abrams, Fensterman, Fensterman,
Eisman, Formato, Ferrara & Einiger, LLP 2014 NY Slip Op 32299(U) August 15, 2014
Sup Ct, New York County Docket Number: 152368/13 Judge: Arthur F. Engoron himself admits to being a little confused.
Bottom line is that the legal malpractice case is continuing on the theory that defendant law firm should have commenced an Article 78 action, failed to do so, was conflicted, and lost about $ 450,000 for the client.
"The instant motion to dismiss is one of the most difficult this Court has had to decide in 11 +
years on the bench. This is due to the fact that the Court has been called upon to interpret
documents full of the arcane language of"Medicaid Reimbursement," an area of human activity
hitherto unknown to the Court. However, after countless readings and re-readings, several drafts
and re-drafts, and much head-scratching, the Court believes that it has finally "cracked the code,"
at least sufficiently to decide this motion correctly. In retrospect, the matter was not that
c.i complicated; but hindsight is always 20-20.
In this action, plaintiffs Morris Berkowitz d/b/a Morris Park Nursing Home and Rehab Center
and Morris Park Nursing Home and Rehab Center claim that defendants Abrams, Fensterman,
Fensterman, Eisman, Formato, Ferrara & Einiger, LLP ("Abrams") and Richard T. Yarmel
("Yarmel") committed malpractice in their representation of plaintiffs in a dispute with non-party
Office of the Medicaid Inspector General ("OMIG"). Defendants now move, pursuant to CPLR
321 l(a)(l) and (a)(7), to dismiss the complaint based on documentary evidence and for failure to
state a cause of action. These two grounds will be discussed in reverse order.
Thus, plaintiffs' first two causes of action, both for legal malpractice, are not subject to
dismissal. The third cause of action, also for legal malpractice, but based on the alleged conflict
of interest, is also not subject to dismissal (although on its alleged facts it appears, to this Court,
tenuous). However, plaintiffs' fourth cause of action, for attorney's fees, is dismissed without
prejudice pursuant to CPLR 3211 (a)(7). Plaintiffs have failed to provide a basis (such as statute,
court rule, contract, or egregious conduct) for the recovery of attorney's fees. "