It has been our observation that in legal malpractice cases Courts tend to dismiss more than in other settings, and that the probable reason for this higher-than-expected rate of dismissals is that Courts tend to favor attorneys over clients in a legal malpractice setting.  Chu v Legere    2018 NY Slip Op 32269(U)  September 14, 2018  Supreme Court, New York County  Docket Number: 150065/2018
Judge: Arlene P. Bluth is the rare case in which the solemn statements of Leon v. Martinez are actually applied.

“This legal malpractice case arises out of defendant’s relationship with plaintiffs sister (“Anne”). Defendant met Anne in 1988 and began a friendship that lasted until Anne passed away on July 25, 2016. Defendant also represented Anne in various legal matters including, but not limited to, an uncontested divorce in the 1990s, a real estate transfer in 2003 and a lease agreement for a studio in Queens in 2010.

Plaintiff contends that her sister sought legal advice from defendant to ensure that the disposition of her artwork would conform to her wishes. Plaintiff alleges that defendant failed to prepare or execute an updated will, prepare a~ updated inventory of assets and create a trust (or similar vehicle) to convey Anne’s artwork as she desired. Plaintiff maintains that after Anne passed away, her estate has faced numerous baseless claims and that these problems arise directly from defendant’s malpractice.”

“Anne last updated her will in 2003 and plaintiff insists that in the thirteen years before her death, she had made many changes to her assets and had become estranged from her husband. Plaintiff contends that during a deposition in a parallel proceeding in Queens County Surrogate’s Court, defendant admitted that he had not advised Anne about updating her will and waited until the final months of her illness when Anne was no longer able to attempt to complete the required tasks.

Plaintiff also alleges that there were a series of meetings between defendant and Anne about the sale and conservation of her artwork. At a meeiing on June 30, 2016, plaintiff argues that defendant prepared three separate durable power of attorney (“POA”) documents for Anne to execute and that two of the three were executed. Pl~intiffinsists that defendant did not include a statutory gift rider to these POAs which would have allowed an agent to assist Anne with estate planning. ”

“The Court recognizes that an attorney’s representation of a client on several distinct matters over many years does not automatically mean that the attorney represents a client for all matters. However, the fact that defendant was Anne’s sometime attorney helps defeat the motion to dismiss because, taking plaintiffs allegations as true, it is clear that Anne did use his professional services at times. And plaintiff claims that defendant took actions in his capacity as an attorney relating to PO As and to update Anne’s will. Defendant’s denial of plaintiffs allegations is not enough for this Court to grant his motion at this stage of the litigation.

Discovery may reveal that defendant was merely assisting his sick friend to gather information to present to a qualified estate attorney rather than acting as her attorney, that his efforts caused the estate no damage or that, even ifhe did undertake to represent her, he simply did not have enough time to complete certain tasks before Anne passed away. But the Court cannot grant defendant’s motion to dismiss under the circumstances here.”