Cohen v Engoron, 2009 Slip Op 32521 is a fascinating look at the lower end of legal malpractice litigation. In this case, plaintiff is an incarcerated inmate who tried to sue his attorney for the return of $ 8500 in legal fees. While being incarcerated was painful for plaintiff, his attorney suffered a worse fate, dying about three months before the summons and complaint.

Everyone in this case has a bad outcome to consider. Plaintiff, who had the time to litigate this matter, and some significant motivation to move forward, determined that an estate existed, and successfully served the voluntary administrator. The estate hired an attorney who had a NY address, but apparently practiced out of North Carolina.

The attorney attempts to have the case dismissed in Supreme Court, and Justice Kapnick denies his motions, then transfers the case pursuant to CPLR 325(d). While in Civil Court, the estate wins an appeal dismissing the case, as the death preceded the summons. As far as the estate goes, this seems to be the end.

However, while in Civil Court, plaintiff succeeds in an order which finds that the attorney may not practice in NY since he lacks an office for the practice of law in NY. This leads to the current Article 78 against the Civil Court Judge, which fails in this decision.