Generally speaking, there is no collateral estoppel defense available to defendant attorneys in a legal malpractice case. They often say, for example, that because a case was dismissed, it’s your fault, not theirs, and hence you should not be able to sue them for the bad outcome. Their legal argument is that you are collaterally estopped from raising the fault argument because you had a full and fair opportunity to litigate the matter, and you lost. The countervailing and generally successful argument, is that the defendant attorney had his hand in the dismissal, which would not have taken place except for mistakes made by the attorneys.
Kinberg v Schwartzapfel, Novick, Truhowsky, Marcus, PC 2016 NY Slip Op 00757 Decided on February 4, 2016 Appellate Division, First Department is the rare counter-example, and we guess (because the AD did not take the time to explain) that the defendant attorneys were succeeded by subsequent attorneys who were on the job when the dismissal occurred. Out guess is buoyed by the term “which represented her in the course of her prior personal injury action.”
Anyway, the import of this case is that this law firm is not to blame for the failures in discovery, (maybe a subsequent law firm was) and so, obtains dismissal.
“Plaintiff asserts a cause of action for legal malpractice against defendant law firm, which represented her in the course of her prior personal injury action. That action was dismissed after plaintiff failed to comply with discovery demands in a conditional order of preclusion (see Kinberg v Shnay, 25 Misc 3d 138[A] [App Term, 1st Dept 2009]). The order dismissing plaintiff’s prior action based on her violation of the preclusion order is entitled to preclusive effect in this subsequent action (see Strange v Montefiore Hosp. & Med. Ctr., 59 NY2d 737 [1983]; Kanat v Ochsner, 301 AD2d 456, 458 [1st Dept 2003]; see also Santoli v 475 Ninth Ave. Assoc., LLC, 38 AD3d 411, 417 [1st Dept 2007]). Moreover, plaintiff’s motion to vacate the order dismissing her prior action was denied for failure, inter alia, to establish the merits of her underlying personal injury claim, and that order was affirmed by the Appellate Term. Plaintiff is collaterally estopped from relitigating the merits of her underlying personal injury claim, since she had a full and fair opportunity to litigate the issue in the prior action (see Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]; Rosenkrantz v Harriet M. Steinberg, P.C., 13 AD3d 88 [1st Dept 2004], lv dismissed in part denied in part 5 NY3d 729 [2005]). Therefore, plaintiff is unable to establish in this action that “but for” the attorney’s negligence, she would have prevailed in the underlying matter, and her legal malpractice action against defendants was properly dismissed (Brooks v Lewin, 21 AD3d 731, 734 [1st Dept 2005], lv denied 6 NY3d 713 [*2][2006]; and see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]).”