Morris Eisen was a huge figure in the personal injury law sector.  As the Sun King of PI attorneys, Eisen could truthfully say "Le etat ce moi!" His firm had a full floor at the Woolworth Building, and early every morning, breakfast was served there.  Anything from 10-30 trial attorneys assembled and were given new trial assignments.  We first met him, as an opponent, sitting on a Judge’s robing room desk, using her telephone, while she sat in the visitor’s chair, and told us to go get money to settle "Mr. Eisen’s" case

Of course, it changed as do all things.  The entire structure came crashing down, and Eisen ended up doing time in Federal prison.  But that’s not our story today.  Today, we see his legal malpractice law suit against the LaRossa law firm.  In Landau, P.C. v LaRossa, Mitchell & Ross ;2010 NY Slip Op 50620(U) ;Decided on April 7, 2010 ;Supreme Court, New York County ;Schlesinger, J.
 

From the decision: "In June of 2008, the highest court of this State decided that a legal malpractice action instituted by Landau, P.C., as successor to Morris J. Eisen, P.C., should, for the first time, go forward on its merits.

It was the City’s position that in two of the three cases named in their action, (the third was a Bronx case wherein no settlement occurred) Aboud and Rehberger, both of which settled, the former for $700,000, the latter for $15,000 (an additional $45,000 was paid by a private defendant), they were entitled to a return of this money (in fact tripled, pursuant to § 487 of the Judiciary Law) because their sole reason for settling was the [*2]introduction at trial by defendants of perjured testimony.[FN2]

The plaintiffs claim that the law firm committed malpractice in its failure to put into issue the factual under-pinnings of the City’s claim, in the City’s motion for summary judgment before Justice Jane Solomon. As stated earlier, the City claimed that its sole reason for settling these two matters was the perjured testimony presented at their respective trials. Since this testimony had been proven false at the Federal trial, the City argued that the defendant, Eisen, P.C. was collaterally estopped from challenging this falsity.

The sole opposition interposed by LaRossa, Mitchell & Ross was that collateral estoppel did not apply under these circumstances. However, the law firm never challenged the central premise of the motion, that the City’s sole reason for settling was the perjured testimony. That is, they never challenged that premise, so plaintiff argues here, until it was too late.

Justice Solomon ruled in favor of the City in a Decision and Order dated February 24, 1995. In the course of that decision she made the following correct statements:

…none of these defendants challenges any of the City’s contentions as to the underlying facts, including that, but for the fabricated testimony, and evidence, there would have been no viable claim in any of the three lawsuits (pp 14-15)

and

The City argues that but for the criminal acts of defendants, it would not have paid any money in connection with these cases because there would have been no evidence of prior notice which was required to establish a prima facie case against the City… This contention is unrefuted (p. 27). [*3]

But the plaintiff very definitely in his complaint and papers accompanying this motion, refutes that. Plaintiff takes great pains to show that conclusion was not true, and in fact, that there was clear evidence to rebut said conclusion. Plaintiff asserts their was sufficient evidence without the use of perjured testimony to merit a jury trial, or alternatively to have convinced the City to settle the actions, albeit perhaps for lesser figures.

Further plaintiff argues, and it is a good argument, that by the defendants’ firm’s very own words and actions, taken soon after Justice Solomon’s decision, it is clear the firm felt similarly.

What was that action? In May of 1995, the defendants moved for reargument/renewal of Justice Solomon’s decision. That motion was supported with a nine-page affirmation by an associate of the law firm, Susan G. LaRossa. Eight of these pages addressed the defendant’s position in detail. Ms. LaRossa argued that in fact the defendants were contesting the City’s claim that but for the fabricated evidence and perjurious testimony, the cases had no value. The affirmant tried to explain why these new facts had not been argued earlier, that there had not been a conviction of mail fraud, merely bribery, which went to their argument why collateral estoppel was not applicable, and that true discovery had not yet occurred. However, the thrust of the affirmation, citing the deposition testimony of Daniel Loveglia from the City Department of Highways, read at the trial regarding a daily log for the Queensboro Bridge, as well as repair records, supported the plaintiff Aboud’s position that there were potholes on the bridge and that only three days before the accident, repairs had begun to address these. The LaRossa deposition also referred to attached memoranda from the City evaluating the case as an extremely serious one and taking note of these repair records. "