Santaro v Finocchio 2023 NY Slip Op 05836 Decided on November 17, 2023 Appellate Division, Fourth Department illustrates the inherent bias towards attorneys that courts have always taken. Not forgetting that attorneys write and legislate the rules, which are then applied and considered by attorneys who are judging other attorneys, it is no surprise that the rules favor attorneys. The social policy is to limit legal malpractice cases so that every litigation is not followed by a pair of legal malpractice claims.
That being said, in this case there was limited to no damages cognizable. The Appellate Division wrote:
“Memorandum: In this legal malpractice action, plaintiff seeks damages for the alleged negligence of defendants in their representation of him in a proceeding pursuant to Family Court Act article 4. As alleged in the complaint in this action, defendants prepared and timely filed objections to the Support Magistrate’s order in the Family Court proceeding on August 19, 2019. Although defendants possessed an affidavit of mailing sworn to on August 19, 2019, detailing service of the objections that same day, defendants did not file the affidavit of mailing until two days later, on August 21, 2019.
Family Court sua sponte dismissed the objections based upon defendants’ failure to strictly comply with Family Court Act § 439 (e) by failing to file proof of service at the same time as the objections. However, on appeal, this Court reversed, reinstated the objections, and remitted the matter to Family Court for further proceedings on the objections, holding that “[s]trict adherence to this deadline is not required” and that, under the circumstances, dismissal of the objections was not warranted (Matter of Sigourney v Santaro, 192 AD3d 1482, 1483 [4th Dept 2021] [internal quotation marks omitted]). In so holding, this Court noted that there was no dispute that the two-day delay did not result in any prejudice inasmuch as the petitioner in the Family Court proceeding was served with a copy of the objections within the statutory time period (see id.).”
“Although Family Court may properly dismiss objections for failure to comply with Family Court Act § 439 (e) under some circumstances (see generally Matter of Minka v Minka, 219 AD2d 810, 810-811 [4th Dept 1995]), strict compliance with the statute is not always required (see Sigourney, 192 AD3d at 1483). Here, the complaint alleged that defendants timely filed the objections, possessed an affidavit of mailing detailing proper service on the day of filing, and delayed just two days in filing proof of service, and the complaint also alleged that opposing counsel filed a rebuttal. Contrary to plaintiff’s contention, the allegations in the complaint do not support even an inference that any prejudice was caused by the two-day delay, nor do they support any inference that such delay would warrant dismissal of the objections by Family Court. Consequently, we conclude that plaintiff’s allegations, even if accepted as true, fail to allege a prima facie case of legal malpractice (see CPLR 3211 [a] [7]; Leder, 9 NY3d at 837).”