The claim is that the attorneys waived an evidentiary hearing, without consent. Does that state a cause of action for legal malpractice? In Law Firm of Alexander D. Tripp, P.C. v Fiorilla
2020 NY Slip Op 32636(U) August 6, 2020 Supreme Court, New York County Docket Number: 654991/2019 Judge: Lucy Billings it does.
“In the Citigroup Global Markets proceeding, Citigroup Global Markets moved for sanctions, including attorneys’ fees, against both defendant and his attorney, plaintiff, August 4, 2017. Although by November 9, 2017, defendant had retained another attorney for this litigation, defendant alleges that ·plaintiff still represented him as well and on that date agreed with Citigroup Global Markets’ attorney that its motion for sanctions raised no factual issues, obviating the need for an evidentiary hearing. Defendant claims that plaintiff’s waiver of anevidentiary hearing was malpractice, because he did raise factual issues that would have been determined in his favor at a hearing and would have reduced the $213,832.50 award of sanctions, attorneys’ fees, and expenses against him. ”
“By alleging that plaintiff’s choice to forego an evidentiary hearing was incompetent and unreasonable, because it was obvious that a hearing would successfully reduce the sanctions award and thus benefit plaintiff, defendant states a claim for plaintiff’s professional negligence. Sejfuloski v. Michelstein & Assoc . , PLLC, 137 A.D.2d 549, 549-50 (1st Dep’t 2016); Fenasca Delgado v. Bretz & Coven, LLP, 109 A.D.3d 38, 43-44 (1st Dep’t 2013). This alleged malpractice caused defendant’s alleged damages in the form of an attorneys’ fees award unreduced from the full amount Citigroup Global Markets claimed. Baram v. Person, 153 A.D.3d 1183, 1183 (1st Dep’t 2017); Caso v. Miranda Sambursky Sloane Sklarin Ver Veniotis LLP, 150 A.D.3d 422, 423 (1st Dep’t 2017); O’Neal v. Muchnick Golieb & Golieb, P.C., 149 A.D.3d at 636; Rubin v. Duncan, Fish & Vogel. L.L.P., 148 A.D.3d at 433. See Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442-43 (2007); Exeter Law Group v. Immortalana Inc., 158 A.D.3d 576, 577 (1st Dep’t 2018); Macquarie Capital (USA) v. Morrison & Foerster LLP, 157 A.D.3d 456, 456-57 (1st Dep’t 2018); Garnett v. Fox, Horan & Camerini, LLP, 82 A.D.3d 435, 435 – 36 (1st Dep’t 2011) . “