New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

Category Archives: Legal Malpractice Basics

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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

The Emotion of Attorney Fees

Posted in Legal Malpractice Basics
It is almost universally said at Legal Malpractice (or Professional Responsibility) CLEs that suing your clients for legal fees not paid is the surest source of a legal malpractice counterclaim.  Legal fee billing appears, anecdotally, to be the largest category of litigation involving attorneys. Exeter Law Group LLP v Immortalana Inc.  2016 NY Slip Op 31913(U)… Continue Reading

The Exercise of Ordinary Intelligence

Posted in Legal Malpractice Basics
The Appellate Division was shockingly clear in its enunciation of this standard, with which we were not familiar.  Plaintiffs created a unique investment strategy, and marketed it.  The IRS found fault, and assessed promoter penalty fines in excess of $7 Million.  Defendant law firm filed a bankruptcy petition, and the litigation started.  Unfortunately for Plaintiffs,… Continue Reading

The Difference Between Malpractice and Negligence

Posted in Legal Malpractice Basics
They’re the same, no?  Well, no.  Malpractice is the negligence of professionals, and simple negligence is the failure to use reasonable means.  However, Judge Mendez does a much better job of explaining in All Craft Fabricators, Inc. v Syska Hennessy Group, Inc.  2015 NY Slip Op 32239(U)  November 23, 2015  Supreme Court, New York County  Docket Number:… Continue Reading

A Small Case Bears Many Lessons

Posted in Legal Malpractice Basics
Sometimes short and concisely written opinions contain much information.  The basics of  Jefferson Apts., Inc. v Mauceri  2016 NY Slip Op 26230  Decided on July 25, 2016  Supreme Court, Queens County  Ritholtz, J. are simple.  An accounting firm is hired to oversee the basic accounting needs of a corporation.  Lots of money is missing.  It… Continue Reading

Escrow Agents, Attorneys and Breach of Fiduciary Duty

Posted in Legal Malpractice Basics
The conduct is not easily explainable.  A law firm is hired to become escrow agent for a real estate venture, and to earn fees while preparing and filing mortgages.  Inexplicably, the law firm simply stops filing the mortgages.  The result is predictable. TSR Group, LLC v Levitin  2016 NY Slip Op 31322(U)  July 13, 2016… Continue Reading

A Lot of Really Unhappy Clients Left Behind

Posted in Legal Malpractice Basics
Attorney licensed in NY and California forms a partnership with a non-attorney to represent home owners under water across the country.  Around 2011 the attorney goes to Hawaii to change his name from Sean Alan Rutledge to Alan Frank.  During this period of time his legal practice in California is unraveling. "Respondent’s disciplinary proceedings in… Continue Reading

Strong Suspicion But No Legal Malpractice

Posted in Legal Malpractice Basics
Wo Yee Hing Realty, Corp. v Stern  ;  2012 NY Slip Op 05792   Decided on July 31, 2012 Appellate Division, First Department   is an example of just how minutely the AD will examine an "underlying case" when deciding a case of legal malpractice.  Here, plaintiffs hired an attorney to do the closing on a commercial… Continue Reading

An Overly Generous Decision is Pruned Back, Plaintiff Still Loses in Legal Malpractice

Posted in Legal Malpractice Basics
Relentlessly applying analysis to the "but for" portion of a legal malpractice claim, the 2d Department modified a CPLR 3211 decision by Supreme Court.  Here, it reversed dismissal under CPLR 3211(a)(1) yet the case remains dismissed under CPLR 3211(a)(7) because the client could not pay the mortgage. in Cervini v Zanoni ;  2012 NY Slip… Continue Reading

Its a Digital World, but Uncertainty Remains

Posted in Legal Malpractice Basics
Today, litigants are able to access so much more than in the past.  When we started out, one read the NYLJ small print decisions from the AD, and there was no more modern way to get the news.  Later, digital reporting has taken over.  Yet, Supreme Courts do not regularly scan and publish decisions.  This… Continue Reading
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