Legal Malpractice litigation is ubiquitous and arises in many interesting and unique settings. In Abramowitz v Lefkowicz & Gottfried, LLP 2012 NY Slip Op 31011(U) April 11, 2012
Sup Ct, Nassau County Docket Number: 015385-11 Judge: Arthur M. Diamond we see legal malpractice litigation after the fallout of contract litigation claims between a company which designed collective coins and the Daily News, which had an agreement to market, promote and advertise the coins and to share profits. It fell apart.
As Chief Financial Officer of23KT Gold Collectibles, Abramowitz retained the law firm to represent it in connection with its dispute with the Daily News on March 31 , 2009. More specifically, the law firm was retained to institute a lawsuit on behalf of 23KT Gold Collectibles against the Daily News and to defend against anticipated counterclaims or retaliatory claims advanced by the Daily News. The Retainer Agreement provided that Lefkowicz & Gottfried cannot, and therefore does not, in any manner by entering (that Agreement or otherwise, make any promises or guarantees with regard to the outcome of the Client’s claims " and that it was not retained to represent 23KT Gold Collectibles with regard to "an appeal of any sort or kind.
In this action seeking to recover for inter alia, legal malpractice, the plaintiffs maintain that Lefkowicz & Gottfried should have notified the Daily News that it was in breach before commencing
23KT Gold Collectibles’ first action against it; that they negligently drafted the first complaint and
failed to cure the vital errors contained therein; that they negligently defended against the Daily
News summary judgment motion and never sought leave to amend to correct vital errors in the complaint; and, that they negligently responded to the Daily News’ discovery request. They also
allege that the law firm failed to respond to their requests regarding the status of the lawsuit and to
keep them apprised of critical developments and furthermore, concealed negative facts from them.
The plaintiffs also maintain that Lefkowicz & Gottfried never told them that the Daily News had
procured summary judgment dismissing their complaint against it; that they refused to appeal from
that order; and that they never sought additional discovery documents from them even though they
were faced with a conditional order of dismissal.
The plaintiffs additionally allege that a dispute arose at a meeting on September 13 2011 between Lefkowicz, Abramowitz, Abramowitz s brother Matt and Goldberg, 23KT Gold Collectibles and Merrick Mint Ltd.’s successor attorney. More specifically, they allege that Lefkowicz attempted to leave the meeting but Abramowitz would not allow him to do so whereupon Lefkowicz allegedly pushed him and left. Abramowitz alleges that Lefkowicz then went to the police and filed a complaint swearing that he had threatened him with a gun causing him to fear for his life, which Abramowitz adamantly denies. Abramowitz alleges that he ultimately surrendered to the police where he remained in custody while the charges, Menacing in the First Degree and Harassment in the Second Degree were prepared.
The complaint fails to plead facts which would establish an attorney-client relationship
between Abramowitz and the defendants. While the plaintiffs have alleged that the defendant
represented 23KT Gold Collectibles, Ltd. and Merrick Mint Ltd. , they have not alleged facts
indicative of a relationship with Abramowitz, individually.
Merrick Mint Ltd. was not a party to the agreement with the Daily News. The defendants’ misnomer of it as a plaintiff in 23KT Gold Collectibles’ suit against the Daily News did not cause it any damages. While theoretically it could have been held responsible on the Daily News
counterclaims, the Daily News could not have established its liability. More importantly, judgment
was in fact only procured against 23KT Gold Collectibles. And, the plaintiffs have not established
that the settlement included Merrick Mint Ltd. Accordingly, Merrick Mint Ltd. suffered no damage
as a result of the defendants ‘ alleged negligence. Merrick Mint Ltd. s legal malpractice claim is
dismissed pursuant to CPLR 3211 (a)(1), (7)..
The plaintiffs ‘ have amply alleged facts establishing the defendants ‘ negligent handling of their case against the Daily News as well as ensuing damages. Furthermore, the documentary evidence relied on by the defendants does not conclusively establish that the plaintiffs could not have prevailed on their claims against the Daily News: Issues of fact exists as to whether the plaintiffs would have prevailed against the Daily News on their claims and in defense of the Daily News counterclaims. Dismissal of the 23KT Gold Collectibles’ legal malpractice claim pursuant to CPLR 9321 1 (a)(1), (7) is denied. See, Sicilano v. Forchelli & Forchelli 17 AD3d 343 (2 Dept 2005), citing Shopsin Siben Siben 268 AD2d 578 (2 Dept 2000); see also, Pechko Gendelman, 20 AD3d 404 (2 Dept 2005).."