New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

Category Archives: Legal Malpractice Cases

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A Pro-Se Accounting Malpractice Slips Away

Posted in Legal Malpractice Cases
The theme of time slipping away is fodder for song lyrics in all genres.  In legal malpractice as well as in professional malpractice it is a constant theme.  Things happen and clients do not discover it immediately; the objective wrongfulness of conduct does not become immediately apparent.  Cases are started too late, as in Schwartz v… Continue Reading

A Legal Malpractice Case Slips Away From a Pro-Se Plaintiff

Posted in Legal Malpractice Cases
Legal malpractice, of course, deals with mistakes make by attorneys.  Attorneys should not make mistakes, but being human, they do.  Mistakes can sometimes be fixed, sometimes not.  For Pro-se plaintiffs, mistakes come more often, and quick-fixes are not as common.  Stevens v Law Off. of Blank & Star, PLLC  2017 NY Slip Op 08030  Decided on November 15,… Continue Reading

How The First Department Differs From the Rest of New York

Posted in Legal Malpractice Cases
In Judiciary Law § 487 cases, the First Department has additional hurdles to clear not present in other Departments.  While a single egregious event is sufficient outside of the First Department, Freeman v Brecher  2017 NY Slip Op 07949 Decided on November 14, 2017  Appellate Division, First Department shows us the three part test for the First Department. The legal… Continue Reading

A Judgment Call Requires Some Actual Judgment

Posted in Legal Malpractice Cases
A fair segment of legal malpractice dismissal are determined upon the assertion that the subject “error” was actually a strategic choice which went sour.  In general, a good legal malpractice case cannot be based upon an “error in judgment” or a “strategic trial decision.”  The underlying understanding is that trial and litigation decisions may often… Continue Reading

When Is A Judiciary Law 487 Case Permitted?

Posted in Legal Malpractice Cases
We admit to being a little confused.  A Judiciary Law § 487 claim seeks damages because of attorney deceit, which generally must happen in a litigation setting.  Must the claim be brought in the underlying setting or later, in a separate action.  The answer seems to reside in whether the 487 claim merely seeks to vacate… Continue Reading

Client Insurance and Legal Malpractice

Posted in Legal Malpractice Cases
Dismissal of a Legal Malpractice claim was denied (and affirmed) in Eurotech Constr. Corp. v Fischetti & Pesce, LLP  2017 NY Slip Op 07780  Decided on November 9, 2017  Appellate Division, First Department.  The claim arose over whether it was the attorney’s obligation to deal with client insurance for the underlying claim. “The complaint alleges that defendant failed to… Continue Reading

A Problem Even the Appellate Division Divides Upon

Posted in Legal Malpractice Cases
Legal malpractice and CPLR 3211(a)(7) motions are an institutional problem.  In our view, (as in the dissent’s view here) judges give unwarranted extra scrutiny to legal malpractice complaints, and grant 3211(a)(7) motions statistically in greater volume then they do to other types of cases.  Our view is that it is an institutional problem because of… Continue Reading

The Limited Retainer and Legal Malpractice

Posted in Legal Malpractice Cases
Whether an attorney departed from good practice sometimes turns on whether the attorney actually had an obligation to deal with a particular issue.  Whether the attorney was supposed to deal with that particular issue turns on the scope of the agreement between the attorney and the client.  Attorneys are required to do adequate work when they… Continue Reading

A Very Sad Allegation From a Famous Actor

Posted in Legal Malpractice Cases
Legal and professional malpractice cases engender two views.  One is the transactional view which we often discuss. We talk about the statute of limitations, the specificity of allegations and privity.  The second view is that of the victims of poor professional work.  Their story is often left out of the analysis.  In Herrmann v CohnReznick LLP  2017… Continue Reading

Bedrock Legal Principles in a Shaken Foundation Case

Posted in Legal Malpractice Cases
Cohen v Sive, Paget & Riesel, P.C.   2017 NY Slip Op 32295(U)   October 27, 2017 Supreme Court,   New York County Docket Number: 154650/2013   Judge: Jennifer G. Schecter applies black-letter law to a shaken foundation legal malpractice case, leaving the legal malpractice claims standing, and the ancillary causes of action dismissed. “In 2004, the Cohens’ neighbors–the… Continue Reading

Case Not Saved by Stipulation

Posted in Legal Malpractice Cases
A stipulation which stated that the statute of limitations would not be asserted failed to stop the assertion of the statute of limitations in Dineen v Pratt  2017 NY Slip Op 07590  Decided on November 1, 2017  Appellate Division, Second Department the first half of which we reported on yesterday. “In a consolidated action and proceedings, inter alia, to… Continue Reading

Behind Every Great Fortune Lies Years of Sibling Litigation

Posted in Legal Malpractice Cases
Reading legal malpractice cases brings up a wealth of sociological issues.  Sibling v. Sibling and Parent v. Child issues in families with significant assets are recurring themes.  Dineen v Wilkens 2017 NY Slip Op 07589  Decided on November 1, 2017  Appellate Division, Second Department is a prime example.  Dad amassed a large farm, and tried to bequeath it… Continue Reading

Attorneys Move From Place To Place

Posted in Legal Malpractice Cases
Attorneys and cases move from law firm to law firm.  How does that affect the statute of limitations for legal malpractice when attorney takes on case, moves to law firm 2 and then leaves the case behind there?  Cordero v Koval Retjig & Dean PLLC  2017 NY Slip Op 05036 [151 AD3d 587] June 20, 2017 Appellate Division,… Continue Reading

One Can’t Wait Too Long To Amend

Posted in Legal Malpractice Cases
Amendments should be freely given, yet in Daniel R. Wotman & Assoc., PLLC v Chang 2017 NY Slip Op 02141 [148 AD3d 571]  March 23, 2017  Appellate Division, First Department the court below correctly decided not to exercise its discretion when the proposed amendment comes far into the case. “In this action commenced by plaintiff to recover legal… Continue Reading

The Issue Is Raised, But No Decision is Issued

Posted in Legal Malpractice Cases
Judiciary Law 487 is tantalizingly raised, but not resolved in Solomon v Silverstein  2017 NY Slip Op 51400(U)   Decided on October 11, 2017  Supreme Court, Richmond County Minardo, J., the story of two sisters feuding over the care and assistance of their mother.  Mom deposited $ 40,000 and the question is whether the two daughters share or… Continue Reading

Several Straightforward Lessons from the First Department

Posted in Legal Malpractice Cases, Uncategorized
O’Neal v Muchnick Golieb & Golieb, P.C.  2017 NY Slip Op 03125 [149 AD3d 636]  April 25, 2017  Appellate Division, First Department is notable for several terse lessons.  They were set forth in bullet fashion in the opinion: “The allegation that, while representing plaintiff in the assignment-of-lease negotiations, counsel secretly represented the counterparty so as to obtain favorable… Continue Reading

Suing The Expert When It All Goes Wrong

Posted in Legal Malpractice Cases
The expert comes into trial and is subject to cross-examination.  When that cross-examination hits home, and the court precludes some of the expert testimony, or fails to qualify the expert, or the expert has to admit that it did not examine or consider some piece of evidence, then things will not go well for the… Continue Reading

Not Only Was It Not Malpractice, But…

Posted in Legal Malpractice Cases
Deceased clients, deceased attorneys, and a disputed real estate transaction lead to Gourary v Green  2017 NY Slip Op 32158(U)  October 13, 2017  Supreme Court, New York County  Docket Number: 651932/10  Judge: Saliann Scarpulla.  At this point in the case, the attorneys have obtained dismissal of the legal malpractice claim, which has been affirmed by the AD1.  How might this affect… Continue Reading

Limited Retainer Agreements and Legal Malpractice

Posted in Legal Malpractice Cases
What a difference a sentence in the retainer agreement can make.  In Matz v Aboulafia Law Firm, LLC  2017 NY Slip Op 32147(U)  October 10, 2017  Supreme Court, New York County Docket Number: 155506/2016  Judge: Kathryn E. Freed, these words led to dismissal against the attorneys: [the Aboulafia Firm]  “is to do no further work on this claim other than… Continue Reading

Both Motions Fail; One Side Rejoices More Than The Other

Posted in Legal Malpractice Cases
Ragunandan v Donado  2017 NY Slip Op 04306 [150 AD3d 1289]  May 31, 2017 Appellate Division, Second Department is a case in which both sides moved for summary judgment.  In Supreme Court, the attorney won.  On appeal, both lost.  Case continues; defendant is more unhappy than is plaintiff. “Ordered that the order is modified, on the law,… Continue Reading

“I Was Really Out Of It” Can Be A Valid Excuse

Posted in Legal Malpractice Cases
There are few really good excuses in life.  “The dog ate my ___” is one classic.  “Traffic” can serve as a reasonable excuse.  Temporary psychological inability to defend oneself does not seem like a good candidate, but in  Pierot v Leopold  2017 NY Slip Op 07154  Decided on October 11, 2017  Appellate Division, Second Department it succeeded. “The plaintiffs… Continue Reading

A Unique Cause of Action in a Legal Malpractice Setting

Posted in Legal Malpractice Cases
New, or unique causes of action rarely arise.  In Alrose Steinway, LLC v Jaspan Schlesinger, LLP 2017 NY Slip Op 32082(U) September 29, 2017  Supreme Court, New York County Docket Number: 151482/2017 we see a claim that failure to supervise a vastly experienced partner in an LLP  is negligence.  Supreme Court permits discovery on the issue, finding that it… Continue Reading

Suspended in Pennsylvania, Disbarred Here

Posted in Legal Malpractice Cases
This is a sordid story of an attorney gone wrong, seriously wrong.  Whether getting precluded while handling a legal malpractice case was the straw or not, a wake of devastation has been left in his wake. Matter of Pierre  2017 NY Slip Op 06999 Decided on October 5, 2017  Appellate Division, First Department  Per Curiam “Respondent Alex H. Pierre… Continue Reading

The Account Stated and Legal Malpractice

Posted in Legal Malpractice Cases
Attorney fees are the driver of what could be a majority of legal malpractice cases.  CLE lecturers consistently warn of the attorney fee-legal malpractice reflex arc, and with good reason.  Glassman v Weinberg 2017 NY Slip Op 06885 Decided on October 3, 2017  Appellate Division, First Department is a prime example.  Here the account stated claim fails and the… Continue Reading
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