All attorney representations are not equal, and a strong public policy of limiting the volume of legal malpractice cases is highlighted by Siemsen v Mevorach 2018 NY Slip Op 02821 Decided on April 25, 2018 Appellate Division, Second Department. A guardian is not susceptible of a legal malpractice claim for want of privity.
“In 2012, the Supreme Court issued a commission to guardian, appointing the defendant as the guardian of the person and property of Virginia Lenzovich pursuant to Mental Hygiene Law article 81. The commission to guardian authorized the defendant, among other things, to “[e]xercise any right to an elective share in the estate of the Incapacitated Person’s deceased spouse.” Virginia’s husband, John Lenzovich, died in March 2014, and Virginia died in July 2014. The defendant then moved for judicial settlement of the final account of the defendant as guardian. By order dated January 30, 2015, the Supreme Court discharged the defendant “from any and all liability in connection with all matters embraced in the said final account.” John’s will, in which he disinherited Virginia, was not filed for probate until March 2015.
Subsequently, the plaintiff, as administrator of Virginia’s estate, commenced this action to recover damages for legal malpractice and breach of fiduciary duty based on the defendant’s failure to exercise, on Virginia’s behalf, the right of election against John’s estate. The defendant moved pursuant to CPLR 3211(a)(1), (5), and (7) to dismiss the complaint based on documentary evidence, collateral estoppel, and failure to state a cause of action. The Supreme Court granted the motion, and the plaintiff appeals.”
“The Supreme Court properly granted that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action to recover damages for legal malpractice. In a legal malpractice action, a plaintiff must establish, inter alia, that an attorney-client relationship existed (see United States Fire Ins. Co. v Raia, 94 AD3d 749, 750-751; Nelson v Kalathara, 48 [*2]AD3d 528, 529). Here, the plaintiff failed to allege facts that would support a finding that the defendant, as guardian of the person and property of Virginia under Mental Hygiene Law article 81, had an attorney-client relationship with Virginia (see United States Fire Ins. Co. v Raia, 94 AD3d at 750-751; Nelson v Kalathara, 48 AD3d at 529).”