This case is the sad story of bad medicine, bad guardianships and death. Sutch v Sutch-Lenz
2015 NY Slip Op 04692  Decided on June 4, 2015  Appellate Division, Third Department.  It starts off with medical malpractice, the death of a father-husband in a flight school training accident, success in the medical malpractice and a money quarrel between mother and son. None of it is good.  Plaintiff’s problem is the lack of privity.

“In 1996, plaintiff’s mother, defendant Debera C. Sutch-Lenz, and father, Alfred Sutch (hereinafter decedent), commenced a medical malpractice action based upon injuries allegedly sustained by Sutch-Lenz while undergoing breast reduction surgery. Defendants William J. Cade and Cade & Saunders, P.C. (hereinafter collectively referred to as defendants) ultimately came to represent Sutch-Lenz and decedent in that action. In March 2000, prior to the trial of the medical malpractice matter, decedent was killed in a light plane crash in Saratoga County and, in April 2000, Sutch-Lenz was granted limited letters of administration for purposes of pursuing both decedent’s derivative claim in the context of the medical malpractice action and a wrongful death action. The medical malpractice action subsequently proceeded to trial and, by judgment entered in August 2001, decedent’s estate was awarded $100,000 on his derivative claim (Sutch v Yarinsky, 292 AD2d 715 [2002]).”

In the interim, Sutch-Lenz, in her capacity as the administrator of decedent’s estate and while represented by defendants, commenced a wrongful death action against the aircraft’s manufacturer and the flight school where decedent had been taking lessons. A proposed settlement of that action subsequently was reached and, in conjunction therewith, Supreme Court appointed defendant James G. Snyder to serve as guardian ad litem for plaintiff (born in 1993) and his sister, Jessica Sutch (born in 1989). After reviewing the proposed distribution, Snyder issued a report to Supreme Court recommending that the settlement be approved. Supreme Court thereafter authorized Sutch-Lenz to settle the wrongful death action,^[FN1] and plaintiff’s share of the proceeds was used to purchase annuities in his name.

There is no question that a legal malpractice claim requires — in the first instance — “the existence of an attorney-client relationship” (Arnold v Devane, 123 AD3d 1202, 1203 [2014]). Plaintiff does not contend, and the record does not otherwise reflect, that he had a contractual relationship with defendants. Rather, plaintiff argues that because defendants represented Sutch-Lenz in her capacity as the administrator of decedent’s estate in both the medical malpractice and wrongful death actions and plaintiff, in turn, is a beneficiary of decedent’s estate, it necessarily follows that defendants were duty bound to represent plaintiff’s best interests in the context of those two actions. The flaw in plaintiff’s argument on this point is that “[i]n New York, a third party, without privity, cannot maintain a claim against an attorney in professional negligence, absent fraud, collusion, malicious acts or other special circumstances” (Estate of Schneider v Finmann, 15 NY3d 306, 308-309 [2010] [internal quotation marks and citation omitted]; accord Zinnanti v 513 Woodward Ave. Realty, LLC, 105 AD3d 736, 737 [2013]; cf. Leff v Fulbright & Jaworski, L.L.P., 78 AD3d 531, 532 [2010],lv denied 17 NY3d 705 [2011]). Although a limited exception has been carved out with respect to an action brought by the personal representative of an estate, “strict privity remains a bar against beneficiaries’ and other third-party individuals’ estate planning malpractice claims absent fraud or other circumstances” (Estate of Schneider v Finmann, 15 NY3d at 310; see Leff v Fulbright & Jaworski, L.L.P., 78 AD3d at 532).”