Here are some NY state cases this week in Legal Malpractice:

1.Max Markus Katz, et al., appellants, v Herzfeld & Rubin, P.C., respondent.

APPELLATE DIVISION, SECOND DEPARTMENT
2008 NY Slip Op 1507           February 19, 2008

This case demonstrates two potent defenses:  "we were fired before the end of the case, and the new attorneys could have fixed the problem…"

Plaintiffs argued that they were forced to settle a PI action for  than they could have recovered ,Defendants submitted evidence establishing that  the law firm’s refusal to "pursue a highly questionable claim for exaggerated lost earnings damages" and "its purported delay in retaining an economist to evaluate the lost earnings claim" , had nothing to do with the the amount of the settlement  in the underlying action.

More telling, defendants were discharged and plaintiffs hired new counsel five months before they settled the underlying action.  The Court found  no proximate cause, and that "subsequent counsel had a sufficient opportunity to protect the clients’ rights "

2.     Kathleen Velie, et al., appellants, v Ellis Law, P.C., 

 APPELLATE DIVISION, SECOND DEPARTMENT
2008 NY Slip Op 1533; February 19, 2008

Here, in an underlying slip on ice case it seems that the defendant attorneys simply did not start the case within the statute of limitations period, With no discussion of the underlying case, or why they could have successfully sued the snow removal people or the property owners, the Appellate Division found that the defendant attorneys failed in their prima facie obligation in summary judgment.  Traditionally this means that there was no attorney’s affidavit, or some especially important element of the motion for summary judgment was missing. This is surprising, in view of the identities of the defending and prosecuting attorneys, both of whom are powerhouses in the field.  Note that this Duchess county case attracted a significant NY plaintiff’s law firm, and had a well known Westchester legal malpractice defense firm making the MSJ.