Wrangles between lawyers is certainly no headline.  Lawyers allowing venom to overpower reason similarly is no news.  The case of Minchew, Santner & Brenner, LLP, and Jamie M. Minchew, v. John H. Somoza, Eleftherios Kravaris, Melito & Anderson, P.C., Westport Insurance Corporation and Louis Venezia, SUPREME COURT OF NEW YORK, RICHMOND COUNTY ,2008 NY Slip Op 50112U; January 17, 2008, is a prime example of failure to mitigate damages.

This case is an offshoot of another legal malpractice case.  Plaintiff hired Venezia to prosecute an action in the Court of Claims.  It is alleged that Venezia did not file the notice of claim timely.  His insurance defense attorneys asked plaintiff to file a motion seeking leave to file a late notice of claim, which was not done. 

When plaintiff would not try to mitigate his damages by moving for leave to file a late notice of claim, Venezia third-partied plaintiff’s attorneys on the theory that they could have mitigated, but did not.  The Minchew firm [plaintiff’s attorneys] then brought this retaliatory suit.  The court wrote:

"This action arises from an underlying legal malpractice 1 action currently pending before this Court, where Mr. Eugene Cacho’s initial attorney, Louis Venezia, failed to timely file a notice of claim with the State of New York. As a result, Mr. Cacho severed his representation and hired the plaintiff Minchew Santner & Brenner LLP (hereinafter "Minchew"), and Jamie M. Minchew, personally, to represent him in a legal malpractice action against The Law Office of Louis Venezia (hereinafter Venezia). Venezia thereafter hired the defendants John H. Somoza, Eleftherios Kravaris, Melito & Anderson, P.C., (hereinafter collectively known as "Somoza"), to represent him in that matter. In the course of his representation, defendant Somoza requested that plaintiff [**2] Minchew apply to file a late notice of claim considering that the statute of limitations has not yet expired in the personal injury action, in effect, severely mitigating the damages and/or resolving the case. After this Court repeatedly recommended that the parties in this action cooperate and apply to file a late notice of claim, the defendants impleaded plaintiffs as a third party in the Cacho action which thereafter caused Minchew to bring this retaliatory action alleging the aforementioned causes of action. " 

When no one would play nice, the court wrote:  "As a result, all causes of action alleged by the plaintiff in their complaint are dismissed. All other requested relief is denied or academic. Finally, this Court will again strongly urge the attorneys involved in these matters to cooperate and set aside these vindictive and unnecessary actions in an effort to resolve [**9] this case. "

Question:  who is hurt when attorneys play like this?