1.Whelan v. Longo, COURT OF APPEALS OF NEW YORK , 2006 NY Slip Op 6375. Plaintiff did not list legal malpractice cause of action in schedules, may not sue.
2. Bishop v. Maurer, 7693, 7694 , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT , 2006 NY Slip Op 7619; Estate planning legal malpractice where husband claimed conflict of iterest when attorneys represented H & W. Case dismissed on the extensive retainer agreement with many attestations.
3. Lafasciano v. Lorber, 2005-04044, (Index No. 6906/04) , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT , 2006 NY Slip Op 7325; Squabble over escrowed funds in a matrimonial proceeding, whether interest was owed [it was not] and how to divide the funds and attorney fees.
4. Parametric Capital Mgt., LLC v. Lacher, 9145N, Index 112155/03 , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT , 2006 NY Slip Op 7226; “Plaintiffs’ motion for leave to replead was adequately supported by an affirmation of an attorney with personal knowledge of the results of the arbitration proceeding in which plaintiffs had been represented by defendants, and a proposed second amended complaint verified by plaintiff Erik Postnieks While defenses may exist, the claims sought to be added are not palpably meritless and the grant of leave did not unfairly surprise or otherwise prejudice defendants.”
5. Kossifos v. Harry I. Katz, P.C., 2005-09717 , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT , 2006 NY Slip Op 7148; 821 N.Y.S.2d 467; “The defendants represented the plaintiff’s decedent, Melanie Kossifos, in an action to recover damages for personal injuries she sustained when a Liberty Lines bus ran over her leg. The defendants never filed a notice of claim with the County of Westchester, nor moved for permission to file a late notice of claim. After the action was dismissed for failure to comply with this condition precedent the plaintiff commenced this action to recover damages for legal malpractice against the defendants. The Supreme Court denied the defendants’ motion for summary judgment dismissing the complaint, finding that there were issues of fact as to whether the defendants were negligent, and as to whether the bus driver was negligent in the underlying action.
6. Moss v. Mc Kelvey, 1003 CA 06-00093 , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT , 2006 NY Slip Op 6964;
“Plaintiffs filed their lawsuit against defendants alleging that defendants committed legal malpractice when they represented both the buyer and the seller in a real estate transaction. The court determined that it was error for the trial court to grant plaintiffs’ motion for leave renew because plaintiffs did not submit the requisite new facts not offered on the prior motion that would change the prior determination. Addressing the merits of the appeal made by plaintiffs, the court concluded that the trial court properly granted defendants’ motion to vacate the certificate of readiness because defendants’ newly retained attorney had told plaintiffs’ attorney that defendants wanted to depose plaintiffs. The trial court also properly denied plaintiffs’ motion for summary judgment because there was an issue of fact with respect to defendants’ affirmative defense of the statute of limitations. Plaintiffs had not established as a matter of law that the three-year statute of limitations had not expired.”
7. Marlett v. Hennessy, 1047 CA 06-00027 , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT , 2006 NY Slip Op 6983;
“The underlying toxic tort/personal injury claims of plaintiff former clients, on which the first and second law firms and their lawyers allegedly negligently failed to commence suit in a timely manner, were time-barred as of October 1993. Because the instant action was not commenced within three years of the accrual date of the instant legal malpractice claim, the former clients were required to have the benefit of the continuous representation doctrine or their legal malpractice claim was time-barred under N.Y. C.P.L.R. 214(6). The representation of the former clients by the first law firm and its lawyer did not continue beyond February 25, 1994, the date on which the former clients explicitly terminated the services of the first law firm and its lawyer. Thus, application of the continuous representation doctrine did not render the action timely as against the first law firm and its lawyer.”
8. Gebbia v. Gumo, 2005-01008, (Index No. 7792/01) , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT , 2006 NY Slip Op 6828; “In 1990 the appellants retained Richard L. Gumo to defend them in an action, inter alia, to recover damages for breach of contract. After Gumo failed to appear for trial on September 18, 2000, and failed to appear at an inquest held on October 3, 2000, a default judgment was entered against the appellants in that action. The appellants hired new counsel, and by decision and order [***2] dated May 13, 2002, this court vacated the default judgment on the ground that Gumo’s failures were isolated instances of law office failure and did not constitute a pattern of neglect.
Thereafter, the appellants commenced this action to recover damages for legal malpractice against Gumo. At trial, the appellants introduced affidavits of service of notices of the trial and the inquest to demonstrate that Gumo knew the dates of the trial and inquest, but the jury found that Gumo did not commit malpractice in failing to appear at the trial and the inquest.”
9. Moran v. Hurst, 2004-10530, 2005-01605, (Index No. 16603/03) , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT , 2006 NY Slip Op 6564; “The Supreme Court properly [**6] granted summary judgment to the defendant Hausch. The record is devoid of any evidence that an attorney-client relationship existed between Hausch, Berger, SFB & F, and Hurst, respectively, met their initial burden by demonstrating that they had no contract or relationship with Moran individually. Berger, SFB & F, and Hurst relied upon their written retainer agreements to establish that the attorney-client relationship formed was with MEI. In order to defeat that prima facie showing of entitlement to summary judgment, Moran was required to produce admissible evidence demonstrating a relationship with the parties “so close as to approach that of privity”.
The record is devoid of any evidence indicating that Berger or SFB & F either affirmatively led Moran to believe that they were acting as his attorney or knowingly allowed him to proceed under that misconception.Contrary to Moran’s contention, HN6the payment of an attorney’s fee by a third party does not, in and of itself, create an attorney-client relationship (see Matter of Priest v Hennessy, 51 N.Y.2d 62, 69-70, 409 N.E.2d 983, 431 N.Y.S.2d 511). Thus, the Supreme Court properly granted that branch of the motion of Berger and SFB & F which was for summary judgment dismissing the complaint and the amended complaint insofar as asserted against them.
10. Nazario v. Fortunato & Fortunato, PLLC, 8843, Index 16347/04 , SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT , 2006 NY Slip Op 6366; “The client claimed that his right shoulder was injured at work when a pipe fell on him. Defendants obtained a workers’ compensation settlement for him but did not pursue a negligence claim against the owner of the building where the accident occurred. Claiming that no causal relationship existed between the work-related accident and the claimed injury, defendants presented exhaustive evidence that the client had had three automobile accidents before and after the work-related accident, after each of which he had claimed to have sustained a similar injury, and that he had failed to inform his medical providers of any of the other accidents. The appellate court reversed the denial of summary judgment. The client presented no medical evidence that his alleged injuries were caused by the work-related accident and not by the other accidents. An excerpt from a neurologist’s testimony based on his inaccurate history and his own self-serving affidavit were insufficient to raise a triable issue of fact as to whether he was injured as a result of the work-related accident. He did not show that he would have prevailed in a personal injury action but for defendants’ alleged malpractice.”
11. Murphy v. Sheldon, 3104/2006 , SUPREME COURT OF NEW YORK, NASSAU COUNTY , 2006 NY Slip Op 51959U; “Finally, plaintiff’s legal malpractice claim against her former attorney WILLIAM SWEENEY, ESQ. is dismissed. Any malpractice allegedly committed by Mr. Sweeney necessarily occurred at or prior to the closing of title on July 26, 2000, at the earliest, or on or before July 16, 2001, when the defendant closed his file, at the latest. In any event, more than three years have passed since the defendant allegedly failed to “use reasonable care in exercising his skill and applying his learning in his representation of plaintiff.” Accordingly, plaintiff’s legal malpractice claim is time-barred. Moreover, plaintiff’s allegations fail to state a cause of action for legal malpractice. Plaintiff’s claim is based upon “nothing but bare allegations of fact and conclusory legal arguments” that do not establish any of the required elements of a legal malpractice claim. Leder v. Spiegel, 31 A.D.3d 266, 819 N.Y.S.2d 26 (1st Dept. 2006). Accordingly, the legal malpractice claim is dismissed pursuant to CPLR R. 3211(a)(5) and (a)(7).”
12. DiBenedetto v. Hadziyianis, 18036/05 , SUPREME COURT OF NEW YORK, NASSAU COUNTY , File was returned to plaintiff prior to S/l, and so attorneys could not be held in legal malpracitce. Confounding everything was a bankruptcy filing by plaintiff which did not schedule the legal malpractice claim.