By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesWhile many legal malpractice cases are brought, few, very few proceed to trial and fewer reach verdict. Our research shows only one jury verdict in 2017 and only this bench trial verdict in 2016. Abramowitz v Lefkowicz & Gottfried, LLP 2018 NY Slip Op 02589 Decided on April 18, 2018 Appellate Division, Second Department is the story of… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesThe statute of limitations is a very high barrier to litigation, and to legal malpractice in particular, as there is often a long delay between the malpractice and the result. The statue starts to run with the negligent act, and only continuous representation tolling can save the day for plaintiff. Here, in Davis v Cohen &… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesHere is the difference between legal malpractice and all other forms of litigation, distilled to a single sentence by Justice Kornreich in NextEra Energy, Inc. v Greenberg Traurig, LLP 2018 NY Slip Op 30638(U) April 11, 2018 Supreme Court, New York County Docket Number: 652484/2017 “Between August 2002 and December 2010, NextEra was represented in the Bankruptcy Action by Greenberg… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesThere are additional hurdles for legal malpractice cases not found in other spheres of the law. Rodriguez v Dean 2018 NY Slip Op 30642(U) April 10, 2018 Supreme Court, New York County Docket Number: 805280/16 Judge: Sherry Klein Heitler presents a new wrinkle we have not seen before. There are more than a few legal malpractice cases arising from negligently handled… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesThere have been only a few uses of the Grace v. Law rule that if a plaintiff has a viable (“likely to succeed”) appeal, it must be taken prior to commencing a legal malpractice case. Florists’ Mut. Ins. Co., Inc. v Behman Hambelton, LLP 2018 NY Slip Op 02556 Decided on April 12, 2018 Appellate Division, First Department is the most… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesBetz v Blatt 2018 NY Slip Op 02445 and 2444 Decided on April 11, 2018 Appellate Division, Second Department and are two extensively explained and well-reasoned decisions in the otherwise barren trust and estates legal malpractice world, in which a Judiciary Law § 487 claim is upheld. One reason for the relative lack of cases is the requirement… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesBench and Bar read appellate decisions in order to understand how courts think, how they decide and for guidance in how to present cases. Panos v Eisen 2018 NY Slip Op 02480 Decided on April 11, 2018 Appellate Division, Second Department could have been instructive, could have explained why Plaintiff”s proofs were lacking, could have illustrated the black-letter law. … Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesAll too frequently a person is injured at work, retains an attorney, and a problem arises several years later. Either there is a “consent” problem with the WC carrier, or there is a total failure to file a WC claim. Sometimes, as in Encalada v McCarthy, Chachanover & Rosado, LLP 2018 NY Slip Op 02434 Decided on April… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesIn Gad v Sherman 2018 NY Slip Op 02316 Decided on April 4, 2018 Appellate Division, Second Department we see the Second Department pass up an invitation to endorse a First Department concept that expressing “satisfaction” with the attorney’s work at an allocution settling a matrimonial action precludes a later legal malpractice case against the attorney. This concept was… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesMoran Enters., Inc. v Hurst 2018 NY Slip Op 02321 Decided on April 4, 2018 Appellate Division, Second Department illustrates why secondary issues may lead to dismissal. Here, the failure to list a claim on a bankruptcy schedule along with the failure to pay franchise taxes doomed a variety of legal malpractice claims. “The plaintiff retained attorney Margaret… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesSometimes the First Department writes a long opinion, sometimes only a paragraph. Here, in Heth v Satterlee Stephens Burke & Burke LLP 2018 NY Slip Op 02307 Decided on April 3, 2018 Appellate Division, First Department the issues were distilled, the opinion was short. “Plaintiff alleges that defendants, representing him pursuant to an engagement letter while simultaneously representing… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesSadly, there are a substantial number of legal malpractice cases brought by pro-se litigants. While legal malpractice cases suffer a disproportionately high rate of dismissal in all settings, in the pro-se area the dismissal rates are very high. Knobel v Wei Group, LLP 2018 NY Slip Op 02292 Decided on April 3, 2018 Appellate Division, First Department is… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesThomas v Weitzman 2018 NY Slip Op 30528(U) March 26, 2018 Supreme Court, New York County Docket Number: 151876/2016 Judge: Kathryn E. Freed is the story of a plaintiff injured at at NYCHA premises. Taken to the hospital for surgery, she claims medical malpractice. These few facts immediately summon forth the questions of suing a municipal authority, the timing of… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesLegal malpractice is always an exercise in hindsight, since it is always a comparison of the actual outcome of attorney representation v. the hypothetical better outcome had the attorney not departed from good practice. Nonetheless, Lisi v Lowenstein Sandler LLP 2017 NY Slip Op 32411(U) November 16, 2017 Supreme Court, New York County Docket Number: 160298/2016 Judge: Shirley Werner Kornreich… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesThere are a whole group of social policy roadblocks to legal malpractice litigation. The additional element of “but for” causation is one; the requirement of privity is another; the exemption for strategic decisions is a third. A very black and white limitation is that of legal malpractice by a criminal defense lawyer. Put in short,… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesCourt appoints a jewelry appraiser as a neutral, and the neutral then send retainer agreements to the parties. Only one party signs the retainer agreement. Appraiser then renders report which one party disputes. Can there be a professional negligence claim? Lintz v Aretz 2018 NY Slip Op 30455(U) March 12, 2018 Supreme Court, New York County Docket Number:… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesJudiciary Law §487 is an ancient part of the common law, so old that it was enacted merely 30 years after the Magna Carta. That’s old! Here, in Ehrenkranz v 58 MHR, LLC 2018 NY Slip Op 01902 Decided on March 21, 2018 Appellate Division, Second Department applied its version of JL 487 (which differs from the… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesWe’ve discussed other statute of limitations cases this week, and Roubeni v Dechert, LLP 2018 NY Slip Op 01950 Decided on March 21, 2018 Appellate Division, Second Department is an excellent example of what is really the only way around the iron-clad rule that the statute of limitations in legal malpractice commences at the mistake and not when… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesGenet v Buzin 2018 NY Slip Op 01878 Decided on March 20, 2018 Appellate Division, First Department is an example of a pro-se legal malpractice case wiped off the board. In a short decision, which gives few clues, the AD affirmed in about the shortest way possible. “Order, same court and Justice, entered January 20, 2017, which, insofar… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesThe statute of limitations, as we have commented recently, is a social policy which seeks to limit the backlog of potential claims now sitting in virtual warehouses around the nation. You’ve been harmed, and that harm is actionable. Society has decided that certainty of business and personal life requires that such claims be brought, or… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesThe statute of limitations serves to freshen and re-freshen the litigation warehouse. Claims and potential claims are warehoused, and then sometimes brought out. Policy considerations require that there be limits on how long a claim can be stored. When the sue-by date arrives, the question of a statute of limitations must be decided, as in Collins… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesReading legal malpractice cases is an exercise in human sadness and unfortunate circumstance. Okello v Schwartzapfel, P.C. 2018 NY Slip Op 30402(U) March 12, 2018 Supreme Court, New York County Docket Number: 154971/2017 Judge: Arlene P. Bluth is no exception. The case illustrates the intersection between mental illness, insanity and tolling of the statute of limitations. There are few… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesVitale v Koenig 2017 NY Slip Op 51557(U) [57 Misc 3d 1219(A)] Decided on October 12, 2017 Supreme Court, New York County St. George, J. gives a very nice analysis of how accounting malpractice is considered on a motion for summary judgment. “The current lawsuit, which is joined for discovery purposes with Vitale v Sonzone, is against Mr. Koenig,… Continue Reading
By Andrew Lavoott Bluestone on Posted in Legal Malpractice CasesFreeman v Brecher 2017 NY Slip Op 07949 [155 AD3d 453] November 14, 2017 Appellate Division, First Department is a series of “no” determinations. Not Legal Malpractice, not Judiciary Law § 497,, not breach of fiduciary duty. “Plaintiff’s claim for legal malpractice in connection with an underlying settlement fails to state a cause of action in the absence of… Continue Reading
