New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

Category Archives: Legal Malpractice Basics

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Judiciary Law 487 Has a Very High Hurdle to Clear

Posted in Legal Malpractice Basics
Many JL § 487 cases are brought; few get to be considered for damages and far fewer ever get to the trier of fact. Yerushalmi v Schoenfeld  2018 NY Slip Op 05623  Decided on August 1, 2018  Appellate Division, Second Department is an example. “In 2002, Malka Yerushalmi (hereinafter Malka) commenced an action for a divorce and ancillary relief… Continue Reading

The Very Strong Account Stated Doctrine

Posted in Legal Malpractice Basics
Holtzman v Griffith  2018 NY Slip Op 04540  Decided on June 20, 2018  Appellate Division, Second Department illustrates the almost overpowering quality of the “account stated” doctrine, in which the failure to object (in writing) to bills from attorneys (or others) can serve as a conclusion that the recipient has accepted the bills without objection and now must… Continue Reading

Plaintiff Gets Lots of Latitude In This Legal Malpractice Case

Posted in Legal Malpractice Basics
Castlewood Apparel Corp. v Davidoff Hutcher & Citron LLP  2018 NY Slip Op 30717(U) April 23, 2018 Supreme Court, New York County  Docket Number: 150167/2017  Judge: Shlomo S. Hagler is a case which displays an unusual degree of latitude in denying a 3211 motion to dismiss.  We have written that these motions seem to get a greater degree of attention,… Continue Reading

What We Mean When We Speak of Lawyers

Posted in Legal Malpractice Basics
Litigation is alternatively a blood sport or the sport of kings.  It takes a lot of money and sometimes tempers flare.  In Englese v Sladkus  2018 NY Slip Op 50625(U) Decided on April 25, 2018 Supreme Court, New York County St. George, J.  we see what happens when a litigant speaks candidly without any filtering. “Steven D.… Continue Reading

It’s a Three-Way Circus in This Real Estate Deal

Posted in Legal Malpractice Basics, Uncategorized
Plaintiffs hired an attorney in order to purchase a condominium.  Unfortunately, the condo was subject to mold and water damage.  Razdolskaya v Lyubarsky  2018 NY Slip Op 02817 Decided on April 25, 2018  Appellate Division, Second Department starts out with an analysis of why there is a fraud claim.  It ends with an analysis of why the attorney… Continue Reading

An Insufficient Affidavit; A Lost Case

Posted in Legal Malpractice Basics
Legal Malpractice claims accrue at the time a mistake is made.  The Statute of limitations  in legal malpractice, three years, is a difficult and high barrier to overcome.  Continuous representation may toll the running of the statute, but social policy has set a number of elements required for continuous representation to be permitted.  Stein Indus., Inc.… Continue Reading

Work Product Discovery in Professional Negligence Cases

Posted in Legal Malpractice Basics
What is discoverable and what is not discoverable in a professional negligence setting influences the viability of the claims.  Attorney-Client privilege, work-product privilege and burdensomeness are all considerations in whether the material is discoverable.  Judge Shulman gives a cogent explanation of the competing arguments in American Med. Alert Corp. v Evanston Ins. Co. 2018 NY Slip… Continue Reading

A Bad Loan, A Gutted Airplane, A Negative Outcome

Posted in Legal Malpractice Basics
Professional malpractice, other than for physicians and some medical providers is three years.  Even with tolling for continuous representation, that three years can go by very quickly.  In Schembre v Saggese  2018 NY Slip Op 30191(U)  February 1, 2018  Supreme Court, New York County  Docket Number: 656328/2016  Judge: Saliann Scarpulla too much time went by for plaintiffs to continue the case.… Continue Reading

The Statute of Limitations in Professional Malpractice

Posted in Legal Malpractice Basics
Accountants and stock-financial advisers are professionals for the purpose of the statute of limitations.  For this reason the doctrine of “continuous representation” can apply.  Reville v Melvin Ginsberg & Assoc.  2017 NY Slip Op 30821(U)  April 20, 2017  Supreme Court, New York County  Docket Number: 152167/2015  Judge: Joan M. Kenney gives some explanation on how to calculate the statute of limitations… Continue Reading

Judiciary Law 487 Differences from the Other Side

Posted in Legal Malpractice Basics, Uncategorized
Last week we discussed how the First Department differs in its handling of Judiciary Law § 487 cases.  Here in Gorbatov v Tsirelman  2017 NY Slip Op 07979  Decided on November 15, 2017 Appellate Division, Second Department  is a further lesson, this time from the Second Department.  Conspicuously missing here is any language of delinquency.  The Second Department… Continue Reading

Arbitration Is So Final

Posted in Legal Malpractice Basics
The jury system, along with the CPLR structure of motions and appeals can be cumbersome, long, but ultimately comforting.  In contrast, the arbitration system plays to a single individual or tribunal, with no margin for reassessment.  So went a case reported in the New York Law Journal, and sometime in the future will be determined… Continue Reading

A Medical Malpractice Illustrates How Strong the Privity Issue Remains

Posted in Legal Malpractice Basics
Privity between client and attorney is mirrored by the doctrine of the lack of a doctor-patient relationship.  Forget that there was a failure to diagnose breast cancer, and that the result can be deadly.  Social policy of limiting suits between patients and remote medical providers as well as the social policy of limiting legal malpractice… Continue Reading

A Couple of Interesting Sidelines in This Case

Posted in Legal Malpractice Basics
In an otherwise run-of-the-mill contract case between an IT provider and a bank, Justice Kornreich illustrates a couple of interesting principles.  The first is that IT providers do not rise to the level of professional engineers for the purpose of allowing tort litigation against them.  The second is the “economic loss doctrine.”  Cervalis LLC v… Continue Reading

It May Not Be The Best Idea, But…

Posted in Legal Malpractice Basics
In this legal malpractice case, the attorney has the right to represent himself.  Question:  How does insurance filter into this?  In Herczl v Feinsilver  2017 NY Slip Op 06528 Decided on September 20, 2017 Appellate Division, Second Department “In 2010, the defendant David Feinsilver, an attorney, commenced representing the plaintiff in a legal matter unrelated to this action. While… Continue Reading

Judiciary Law 487 Article in the New York Law Journal

Posted in Legal Malpractice Basics, Uncategorized
We’re proud to present our “Judiciary Law § 487 Suffers an Earthquake” article from today’s New York Law Journal.  It discusses the recent sweep of JL § 487 law, including Bounkhoun v. Barnes et al., Case No. 15-cv-631A,  which now awaits a decision by District Judge Joseph Arcara whether to accept the recommendation. A recent Judiciary Law §487 case… Continue Reading

No Damage, No Claim, No Case

Posted in Legal Malpractice Basics
Maroulis v Sari M. Friedman, P.C.  2017 NY Slip Op 06437  Decided on September 13, 2017 Appellate Division, Second Department is a textbook example of why approximately 40% of Judiciary Law § 487 cases are dismissed.  The Courts don’t really like them, and lack of damages proximately caused by the violation is the stated reason.  Here, the legal… Continue Reading

Big Changes in Bail Bond Premiums

Posted in Legal Malpractice Basics
Once in a while a case captures your interest.  This was the situation in Gevorkyan.  Sure, this was outside of legal malpractice and professional liability, but a former client came to us with a problem.  He had been arrested for financial crimes, and bail was set at $2 Million.  He paid a bail bond premium,… Continue Reading

Proofs in Summary Judgment

Posted in Legal Malpractice Basics
Schmidt v One N.Y. Plaza Co. LLC 2017 NY Slip Op 06047 Decided on August 8, 2017 Appellate Division, First Department is not a legal malpractice case, but it is a well written decision setting forth how experts battle in a summary judgment case.  Plaintiff slips/falls from a ramp while at work.  His job is to lead… Continue Reading

Some Basics on Fees and Judiciary Law 475

Posted in Legal Malpractice Basics
We go on and on about Judiciary Law 487, but today’s post is about a different statute, Judiciary Law 475, which regulates attorney fees.  Here are some basics: There has to be a settlement in open court and no signed writing reflecting that the client authorized the purported settlement.  Hence, no lien. Baker v Restaurant… Continue Reading

Accountants and Intra-Family War

Posted in Legal Malpractice Basics
The family is large, and the husband has been married at least twice.  There are adult children from the first marriage, and the husband has significant sums of money.  What is this?  It is a recipe for internecine war;  of course, it is over money.   Did Dad fraudulently and wrongfully give the adult kids… Continue Reading

Breach of Fiduciary Duty, Corporations and Shareholders

Posted in Legal Malpractice Basics
Yesterday, we spoke about commercial litigation, intra-company claims and how minority shareholders can bring claims that attorneys for the corporation or the majority shareholders have wronged them.  Yesterday, it was “legal malpractice.”  Today it’s “breach of fiduciary duty.” Exeter Law Group LLP v Wong  2016 NY Slip Op 32425(U)  December 9, 2016 Supreme Court, New York County Docket… Continue Reading

Their Statute or Ours…It’s Too Late

Posted in Legal Malpractice Basics
Centre Lane Partners, LLC v Skadden, Arps, Slate, Meagher & Flom Llp  2016 NY Slip   Op 32136(U)  October 21, 2016  Supreme Court, New York County  Docket Number: 651721/16 Judge: Barry Ostrager  explains the borrowing statute in the dismissal of this legal malpractice case which took place in Oregon. “The underlying facts are as follows. For many… Continue Reading

Parse the Facts As You Wish…The Statute is Running!

Posted in Legal Malpractice Basics
Gerschel v Christensen  2016 NY Slip Op 06794  Decided on October 18, 2016  Appellate Division, First Department brings up the inexplicable question of why plaintiffs wait so long to bring an action.  A trust dissolves, and plaintiffs don’t get their money.  They have either 3 or 6 years in which to sue.  However, nine years… Continue Reading
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