New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

Category Archives: Legal Malpractice Basics

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Failure to Appeal is a Problem

Posted in Legal Malpractice Basics
In Pugliese v Martin Law Group, P.C.  2019 NY Slip Op 01810  Decided on March 13, 2019 the Appellate Division, Second Department  reminds that legal malpractice consists of more than a mere mistake.  Plaintiff must still prove proximate or “but for” cause.  Merely failing to perfect an appeal is insufficient. “ORDERED that the order is modified, on the… Continue Reading

Not a Limited Engagement Letter

Posted in Legal Malpractice Basics
Attorneys are expected zealously to represent clients, all within the cannons of ethics, of course.  However, “that wasn’t my job” or “I wasn’t retained to do that” is a frequent defense in legal malpractice cases.  Exeter Law Group LLP v Immortalana Inc.  2018 NY Slip Op 01269 [158 AD3d 576]  February 22, 2018  Appellate Division, First Department spends little… Continue Reading

The Common Interest Privilege in Discovery

Posted in Legal Malpractice Basics
The Second Department gives a black-letter lecture on the common interest privilege, in a legal malpractice setting.  Saint Annes Dev. Co. v Russ  2018 NY Slip Op 00451 [157 AD3d 919] January 24, 2018  Appellate Division, Second Department holds that: “The common-interest privilege is an exception to the traditional rule that the presence of a third party waives… Continue Reading

A Short Course in Contribution and Indemnity

Posted in Legal Malpractice Basics
Board of Mgrs. of Manhattan Place Condominium v  616 First Ave., LLC  2019 NY Slip Op 30216(U) January 25, 2019  Supreme Court, New York County Docket Number: 652240/17 Judge: Frank P. Nervo is an excellent primer on the law of contribution and indemnity.  In this property construction setting, there is none available. “The underlying action herein concerns a building… Continue Reading

It’s Not Judiciary Law 487 Case

Posted in Legal Malpractice Basics, Uncategorized
Clark v Allen & Overy LLP  2019 NY Slip Op 30146(U)  January 16, 2019  Supreme Court, New York County  Docket Number: 453138/2017  Judge: Arlene P. Bluth is an employment abuse case (between lawyers) that went all the way to a request for cert at SCOTUS.  For our purposes, it’s not a JL § 487 case.  Even more interesting, there is no… Continue Reading

Judiciary Law 487 Claim Dismissed in 7 Words or Less

Posted in Legal Malpractice Basics
A slight exaggeration, but in 195 Hawthorne Partners, LLC. v Thompson  2018 NY Slip Op 32804(U)  October 30, 2018  Supreme Court, Kings County  Docket Number: 506136/18 Judge: Leon Ruchelsman there are pages and pages of discussion of a back-and-forth transfer, deeds, mortgages, foreclosures of what must be a valuable property.  The attorneys are third-partied and claims for malpractice and violation… Continue Reading

Outside Counsel Column in Today’s New York Law Journal

Posted in Legal Malpractice Basics
We’re proud to announce that our “It’s Over, Now What” can be found in today’s NYLJ. From the article: “The attorney-client relationship has a limited lifespan. Generally, it is a project-based temporary business relationship, albeit a fiduciary one. Whether the representation is short or long, transactional or litigation based, it must someday end. It may… Continue Reading

Two Lessons From a Legal Malpractice

Posted in Legal Malpractice Basics, Legal Malpractice Cases, Uncategorized
Armstrong v. Blank Rome LLP, Supreme Court, New York County, Index No. 651881/2013, Justice David B. Cohen, J., offers three lessons in a matrimonial – legal malpractice case.  The first is that such a case can survive the post-Katebi v. Fink landscape. The second is that an unexplained conflict of interest can lead to a good Judiciary… Continue Reading

Melcher Bobs Up Again

Posted in Legal Malpractice Basics
Surely the longest running Judiciary Law§ 487 case known to man, Melcher v Greenberg Traurig LLP  2018 NY Slip Op 06310  Decided on September 27, 2018  Appellate Division, First Department has been modified and sent back to Supreme Court for trial.  Previously it had been severely clipped and stripped of most of the damage claims by Supreme Court. “In… Continue Reading

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

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
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