Today’s NYLJ reports that Judge G.B.Smith, who is reaching mandatory retirement age, and ending his present term will not be reappointed. There are a plethora of given reasons, but the most likely seems to be that if he were reappointed, then Pataki’s successor would have an immediate new judgeship. Here is a legal malpractice opinion by G.B. Smith on legal malpractice and res judicata. “97 N.Y.2d 295, *; 766 N.E.2d 914, **;
740 N.Y.S.2d 252, ***; 2001 N.Y. LEXIS 3814
Frederick F. Buechel et al., Individually and as Trustees of Trusts Entitled Biomedical Engineering Trust, Respondents, v. John N. Bain et al., Appellants, et al., Defendants.
COURT OF APPEALS OF NEW YORK
97 N.Y.2d 295; 766 N.E.2d 914; 740 N.Y.S.2d 252; 2001 N.Y. LEXIS 3814
October 16, 2001, Argued
December 20, 2001, Decided
SUBSEQUENT HISTORY: Writ of certiorari denied: Bain v. Buechel, 2002 U.S. LEXIS 3857 (U.S. 2002).
PRIOR HISTORY: Appeal, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered September 28, 2000, which affirmed (1) an order of the Supreme Court (Richard Lowe, III, J.), entered in New York County, denying motions by defendants John N. Bain and John Gilfillan, III, to dismiss plaintiffs’ amended complaint, and (2) an order of that Supreme Court (Richard Lowe, III, J.), entered in New York County, granting a motion by plaintiffs for partial summary judgment on their first three causes of action, rescinding and terminating those defendants’ interests in a certain trust, declaring fee agreements between plaintiffs and those defendants unenforceable and rescinding them ab initio, ordering those defendants to return compensation received from the trust or its predecessors, referring the issue of what fees are owing to those defendants to a special referee, and denying, in part, a cross motion by those defendants for partial summary judgment. The following question was certified by the Appellate Division: “Were the orders of the Supreme Court, as affirmed by this Court, properly made?”
Two clients brought an action seeking to terminate all interests which their former attorneys had in a trust that was created to compensate the attorneys for legal services. That action followed a prior and separate lawsuit (first action) that was filed by a former partner in the attorneys’ law firm against the clients and raised the issue of whether the trust was valid. Although the attorneys were added as parties to the first action, they chose not to participate actively in that action, but instead moved to stay the second action until the first action was resolved. In the first action, the trial court ruled that the trust was invalid. Thereafter, the second action was tried and the trial court invoked the doctrine of res judicata to rule a second time that the trust was invalid. The state supreme court held that because the issues in the first action and the second action were the same, the doctrine of res judicata applied. This was especially true because the attorneys knew that the validity of the trust was being vigorously contested in the first action and that an adverse ruling would have serious consequences for them.
OUTCOME: The state supreme court affirmed the intermediate appellate court’s judgment.