Partial summary judgment for plaintiff is a rare beast in legal malpractice.  Judges have to overcome their natural bias against legal malpractice and the facts have to be very strong, or the acts of the attorneys very clearly wrong for partial summary judgment to be granted.  Here, in Krigsman v Goldberg  2018 NY Slip Op 30694(U)  April 19, 2018  Supreme Court, New York County  Docket Number: 151271 /16  Judge: Manuel J. Mendez we see the rara avis.

“Plaintiff claims that the Goldberg Defendants were retained by plaintiff’s mother, Dora Avrumson (hereinafter “Dora”) in March of 2003, about a month after the death of her second husband Shlomo Cyngiel (hereinafter “Shlomo”), who died on February 15, 2003. It is alleged that the Goldberg Defendants committed malpractice when they failed to exercise Dora’s right of election in accordance with EPTL§5-1.1-A. It is further alleged that instead of exercising the right of election, the Goldberg Defendants filed objections against the Estate of Shlomo in a proceeding in Surrogate’s court to probate Shlomo’s Will, and commenced a separate action in New York State Supreme Court Kings County (Index 21521- 2003) on Dora’s behalf, against Shlomo’s Estate and his children, for the imposition of a constructive trust and a declaration of Dora’s rights in Shlomo’s property (hereinafter referred to as the “constructive trust action).” The Supreme Court Kings  County action was transferred to Surrogates Court in October 2003. Dora died on November 28, 2008 during an ongoing dispute with Shlomo’s Estate over the legality of their marriage. She died without exercising her right of election. ”

It is alleged that the Goldberg Defendants failed to take adequate party and nonparty discovery and otherwise prepare the constructive trust action for trial prior to the discovery cut-off. On June 12, 2015, the constructive trust action was stricken from the trial calendar after the Goldberg Defendants informed the Kings County Surrogate that they could not try the action due to a scheduling conflict and sought an adjournment. Plaintiff alleges that when the Goldberg Defendants neglected the action and failed to move to restore the action to the trial calendar, the defendants in the action moved to dismiss the action for failure to prosecute.”

“Plaintiff has shown that the Goldberg Defendants failed to follow the proper procedure required under EPTL §5-1.1-A[d][1] which provides the procedure to exercise the right of election and specifically states: “Written notice of such election shall be served upon any personal representative in the manner herein provided, or upon a person named as Executor in a will on file in the surrogate’s court in a case where such will has not yet been admitted to probate, and the original thereof shall be filed and recorded, with proof of service, in the surrogate’s court in which such letters were issued within six months from the date of the issuance of letters but in no event later than two years from the date of decedent’sdeath … ” (Emphasis added) (McKinney’s Consol. Laws of New York Annot., vol.17B, EPTL §5-1.1-A) There was a continuous attorney-client relationship between the Goldberg Defendants and Dora and her estate from March of 2003 through March 14, 2013 when they were first substituted by Nicholas Kowalchyn, Esq .. Plaintiff relies on correspondence and the retainer agreement to show that the Goldberg Defendants were aware of their responsibility of properly exercising Dora’s right of election (Mot. Exhs. 6, 7, 9 and 10).
Plaintiff has shown that the Goldberg Defendants proximately caused her damage. ”

“The Goldberg Defendants fail to provide proof in opposition to partial summary judgment on plaintiffs claims of their malpractice in the constructive trust action. The Goldberg Defendants’ representation was also continuous in the constructive trust action c:ommenced in May of 2003 through January 2016 when the Goldberg Defendants withdrew as counsel. The May 10, 2016 Decision and Order of Kings County Surrogate S. Johnson, states: “in the month since Ms. Krigsman retained Greenfield Stein & Senior, the firm has developed this matter to a greater extent than prior counsel did in thirteen years of representation.” (Mot. Exh. 35). The Goldberg Defendants provide no proof that the delay and failure to obtain discovery in the constructive trust action was the fault of other attorneys. Ultimately dismissal of the constructive trust action was due solely to their lack of proper representation, further warranting partial summary judgment on liability to plaintiff. ”