We reported on this case back on5/14/07 and again on 9/19/08.  Today, the NYLJ reports that the Morelli law firm’s attempt to garner disbursements from plaintiff has failed.

From the decision of Justice Goodman:  "The following illustrates why members of the public may hold cynical views about the legal profession. This motion seeks to renew and reargue denial of a motion to restore a counterclaim for disbursements from defendants’ former client. Granted to the extent of considering the present submission; but on reargument the motion is denied.
 

A legal malpractice action against Benedict P. Morelli & Associates, P.C. (Defendants/Movants) of plaintiff resulted from the representation of plaintiff in a medical malpractice action. In that medical malpractice action, which was dismissed as untimely, Victoria Kremen (Plaintiff/Client) claimed that certain doctors and hospitals misdiagnosed her as having breast cancer, when she did not; the result was an unnecessary bi-lateral mastectomy. (Kremen v. Brower, Index No. 112829/01, Joan B. Carey, Sup Ct NY County 2001, affd, Kremen v. Brower, 16 AD3d 156 [1st Dept 2005]). This Court’s denial of summary judgment to defendants in the ensuing legal malpractice action which was based on the prior case being dismissed on statute of limitations grounds, was reversed (in connection with a time calculation of Plaintiffs’ filing bankruptcy) and the legal malpractice action was dismissed (Kremen v. Benedict P. Morelli & Assoc. P.C., 54 AD3d 596 [1st Dept 2008]).

In the legal malpractice action defendants had argued, inter alia, that there had been no merit to the medical malpractice case in the first instance, even though they had clearly undertaken the engagement of representing plaintiffs, which suggests that they must have or should have believed it was a meritorious action. Defendants then took the uncommon step in the legal malpractice action, of asserting a counterclaim for disbursements allegedly incurred in the medical malpractice action. However, the law firm submitted to this Court no support whatsoever for the motion to restore their unusual counterclaim."

Now, for the first time, and in violation of motion practice parameters concerning reargument under CPLR 2221, defendants submit a copy of the retainer agreement which was drafted by them and was in their possession when they originally made the motion hereunder. Aside from that impropriety, and despite being an experienced tort firm active in the field of personal injury, defendants obviously are not familiar with the terms of their own retainer agreement.