New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

Category Archives: Legal Malpractice Cases

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Jumping From Place To Place Can Be Dangerous

Posted in Legal Malpractice Cases
Plaintiff may have had a good claim against his accountants, maybe not.  The merits will not be reached because of an unusual choice of venues, and the method by which the case was first brought in NY County and then in Westchester County.  The choices caused a procedural catastrophy. In EB Brands Holdings, Inc. v… Continue Reading

Pro-Se or Not Pro-se Can Make a Big Difference

Posted in Legal Malpractice Cases
DeMartino v Golden  2017 NY Slip Op 04253 [150 AD3d 1200]  May 31, 2017  Appellate Division, Second Department shows what happens when a case starts out pro-se, attorneys get substituted in and then everything goes wrong.  The summons and complaint were served with a corporation and limited liability company were plaintiffs but were unrepresented.  Defendant attorney was then… Continue Reading

A Shocking Huge Marital Legal Malpractice Case

Posted in Legal Malpractice Cases
Roth v Rubinstein & Rubinstein LLP  2018 NY Slip Op 30038(U)  January 8, 2018  Supreme Court, New York County  Docket Number: 154855/16  Judge: Lynn R. Kotler is a story that Hitchcock could have filmed.  Husband and wife make a lot (really a lot) of money in business, and then after all that, the husband is accused of tricking the wife… Continue Reading

The Accountant Stays In, The Attorney is Out

Posted in Legal Malpractice Cases
In a law suit arising from divorce, Husband sues both a lawyer and an accountant.  Motions to dismiss result in a split decision.  Millman v Blatt & Dauman, LLP  2018 NY Slip Op 30016(U) January 3, 2018  Supreme Court, New York County  Docket Number: 652002/15  Judge: Lynn R. Kotler  demonstrates how the professional’s roles differed. “The following facts are alleged… Continue Reading

Voluntary Assumption of Attorney Duty and Legal Malpractice

Posted in Legal Malpractice Cases
The Appellate Division, First Department asks a question without an apparent answer:  Can an attorney be held liable of a voluntary assumption of a duty which is not reflected in a retainer agreement?  What happens if there is no actual retainer agreement?  For the moment there is no answer, but Genesis Merchant Partners, L.P. v Gilbride,… Continue Reading

The Successor Counsel Doctrine In Plain English

Posted in Legal Malpractice Cases
In one of the shortest decisions recently seen, the Appellate Division, First Department lays out the Successor Counsel doctrine which essentially immunizes the first attorney in Liporace v Neimark & Neimark, LLP  2018 NY Slip Op 00112  Decided on January 9, 2018. “The Neimark defendants’ failure to serve a timely notice of claim on the New York City… Continue Reading

The First Department Takes A More Lenient View

Posted in Legal Malpractice Cases
Supreme Court dismissed the complaint, but the First Department’s examination of the documents led to the opposite result in Macquarie Capital (USA) Inc. v Morrison & Foerster LLP ,  2018 NY Slip Op 00091  Decided on January 9, 2018 Appellate Division, First Department. “Accepting plaintiff client’s allegations as true and drawing all reasonable inferences in its favor (see Leon… Continue Reading

Professional v. Ordinary Negligence

Posted in Legal Malpractice Cases
Negligence is negligence, no?  Well, they are different as Amendola v Brookhaven Health Care Facility, LLC 2017 NY Slip Op 04090 [150 AD3d 1061]  May 24, 2017  Appellate Division, Second Department points out. “The plaintiff Raymond Amendola (hereinafter the plaintiff), and his wife suing derivatively, commenced this action against Brookhaven Health Care Facility, LLC (hereinafter Brookhaven), and The… Continue Reading

A Beach, A Fence and A Superstorm in a Deceit Case

Posted in Legal Malpractice Cases
Legal malpractice cases, as we have said, cover events and issues all over the world.  Here, a land-owner was unhappy about trespassers over his property, trying to get to a beach.  The annoyance led to litigation, to appeals, to legal malpractice and judiciary law § 487 claims.  Palmieri v Perry, Van Etten, Rozanski & Prima Vera, LLP  2017 NY… Continue Reading

When Does a Failure to Answer Malpractice Claim Commence?

Posted in Legal Malpractice Cases
It doesn’t get much simpler than a legal malpractice claim that the attorneys failed to answer, and a default judgment was entered.  When does the statute of limitations commence?  Billiard Balls Mgt., LLC v Mintzer Sarowitz Zeris Ledva & Meyers, LLP  2018 NY Slip Op 00018 Decided on January 2, 2018  Appellate Division, First Department gives something… Continue Reading

The “Continuing Wrong” Doctrine

Posted in Legal Malpractice Cases
The concept is familiar, but the name of this particular doctrine is new to us.  The First Department, in  Palmeri v Willkie Farr & Gallagher LLP  Decided on December 28, 2017 enunciated the following: “Here, plaintiff alleges not only that defendant breached its fiduciary duty when it terminated its professional relationship with him, but also… Continue Reading

Really, It’s None of These Things…

Posted in Legal Malpractice Cases
Attorney fee disputes reflexively lead to legal malpractice claims.  While that is true, the concept that all legal malpractice claims are dubious strongly overshadows the unassailable fact that attorneys are human, and that without any doubt, humans make mistakes.  That being said, Louis F. Burke PC v Aezah 2017 NY Slip Op 32670(U) December 14, 2017… Continue Reading

Act As A Lawyer, Not Merely Be One

Posted in Legal Malpractice Cases
Although the headline may sound exhortatory, it is rather a recitation of when a Judiciary Law § 487 claim may properly lie against a attorney-client, rather than an attorney who represents a client. Witty v 1725 Fifth Ave. Corp.   2017 NY Slip Op 32624(U)   December 12, 2017   Supreme Court, Suffolk County   Docket Number: 02509-17   Judge: Elizabeth H.… Continue Reading

Negligence? Perhaps. Professional Negligence? No.

Posted in Legal Malpractice Cases
A claim against a finance adviser or investment adviser is permissible, but it is not professional negligence and there is no fiduciary duty running between the financial adviser and the plaintiff.  As Judge Kornreich tells us in Gutterman v Stark  2017 NY Slip Op 32618(U)   December 18, 2017 Supreme Court, New York County Docket Number: 655440/2016… Continue Reading

How To Prove That The Statute of Limitations Has Run

Posted in Legal Malpractice Cases
Malpractice, as delineated from mere negligence, is that of a “professional toward a person for whom a service is rendered.  Santiago v. 13 70 Broadway Assoc., L. P., 264 A.D .2d 624 (I 51 Dept 1999). ”  The statute of limitations for all professionals other than physicians is 3 years.  It’s 2.5 years for physicians.  How… Continue Reading

Ask and Ye Shall Receive…

Posted in Legal Malpractice Cases
In this season, gifts are being shuttled around, and many look to receive. Board of Mgrs. of Brightwater Towers Condominium v SNS Org., Ltd.   2017 NY Slip Op 31791(U)   August 24, 2017   Supreme Court, Kings County Docket Number: 503102/16   Judge: Lawrence S. Knipel is an example what happens when one asks correctly for a second chance. … Continue Reading

A Judiciary Law 487 Case Gone Bad

Posted in Legal Malpractice Cases
Judiciary Law § 487 cases are very very hard to bring.  In the First Department they are even harder to maintain.  When such a case is brought pro-se, the chances of viability plummet.  So it was with Rondeau v Bargman  2017 NY Slip Op 32256(U)  October 19, 2017 Supreme Court, New York County  Docket Number: 153727/16  Judge: Jennifer G. Schecter.  The… Continue Reading

Continuous Representation To Be Determined by Arbitrator

Posted in Legal Malpractice Cases
Arbitration clauses in professional malpractice settings are not absolute, but they can be very persuasive to Courts.  When presented with defenses to an arbitration clause, or to other clauses contained in the agreement between client and professional, the Court may take up the issue and decide it, or it can send the issue to the… Continue Reading

Proximate Cause and the Accountant

Posted in Legal Malpractice Cases
Mistakes, mistakes, shoddy performance!  This is what malpractice cases are all about.  However, litigation over these issues is rarely simply about the mistake.  It’s the surround that matters so much more.  The “surround” ?  What we mean by this is the more subtle issues such as proximate cause, professional strategy, etc. Vitale v Koenig  2017 NY Slip… Continue Reading

A Primer in Continuous Representation

Posted in Legal Malpractice Cases
For a well written discussion of the elements of continuous representation, we suggest that RJR Mech. Inc. v Ruvoldt  2017 NY Slip Op 31232(U)  June 8, 2017  Supreme Court, New York County  Docket Number: 158764/2015  Judge: Jeffrey K. Oing serves as a prime example. ” As in the first action, the. complaint in the second action alleges that the Norwest… Continue Reading

Vicarious Liability and Planning for Emergencies

Posted in Legal Malpractice Cases
A simple fact pattern.  Customer comes to store, is offered valet parking.  Customer gives car to valet driver, who proceeds to strike a pedestrian.  Who may be responsible and how do the liabilities of the store, the valet service, the valet driver interact? Berger v Rokeach  2017 NY Slip Op 27374  Decided on November 20, 2017  Supreme Court, Kings… Continue Reading

For Lack of An Expert, the Case is Lost

Posted in Legal Malpractice Cases
Professional negligence similar to legal malpractice deals with areas of specialized knowledge.  When the term “specialized knowledge” is used, the trial lawyer thinks: “admissibility”, “lay juries” and “experts.”  In Herman v Franke, Gottsegen, Cox Architects  2017 NY Slip Op 07980 Decided on November 15, 2017 Appellate Division, Second Department one side utilized an expert, the other did… Continue Reading

Notice and an Opportunity to be Heard in a Sanctions Case

Posted in Legal Malpractice Cases, Uncategorized
Plaintiff sued under Judiciary Law § 487 and was promptly the subject of sanctions and dismissal.  Supreme Court granted both, and an appeal ensued.  In Liang v Wei Ji  2017 NY Slip Op 08361 Decided on November 29, 2017  Appellate Division, Second Department,  the Court affirmed because plaintiff had previously been enjoined from starting any actions without prior permission. … Continue Reading

The Field Is Winnowed, and the Case Goes On

Posted in Legal Malpractice Cases
It takes a while to work through the events of Josephs v AACT Fast Collections Servs., Inc.  2017 NY Slip Op 08357  Decided on November 29, 2017  Appellate Division, Second Department and to determine whether it was a mistake not to oppose a motion for dismissal.  Near the end of the decision we see what appears to be… Continue Reading
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