New York Attorney Malpractice Blog

New York Attorney Malpractice Blog

Category Archives: Legal Malpractice Cases

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The Rare Legal Malpractice Verdict

Posted in Legal Malpractice Cases
While 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

No Continuous Representation in a $ 80 Million Legal Malpractice Case

Posted in Legal Malpractice Cases
The 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

An Error, Yes. “But For” Causation? Nope

Posted in Legal Malpractice Cases
Here 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

Extra Obligations in a Legal Malpractice Case

Posted in Legal Malpractice Cases
There 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

An Unusual Use of the Grace v. Law Rule

Posted in Legal Malpractice Cases
There 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

Two Bombshells From the Second Department

Posted in Legal Malpractice Cases
Betz 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

We Don’t Know Why, But Case Reversed and Dismissed

Posted in Legal Malpractice Cases
Bench 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

The Recurring Personal Injury – Workmans’ Compensation Problem

Posted in Legal Malpractice Cases
All 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

The Second Department Continues to Apply The First Department’s Settlement Rule

Posted in Legal Malpractice Cases
In 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

A Host of Secondary Reasons Why This Legal Malpractice Case Failed

Posted in Legal Malpractice Cases
Moran 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

Not Enough to Dismiss

Posted in Legal Malpractice Cases
Sometimes 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

A Pro-Se Plaintiff, A Dismissed Complaint

Posted in Legal Malpractice Cases
Sadly, 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

A Plaintiff is Injured; The Case Goes Nowhere

Posted in Legal Malpractice Cases
Thomas 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

Hindsight and Legal Malpractice

Posted in Legal Malpractice Cases
Legal 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

It’s Different For Criminals in Legal Malpractice

Posted in Legal Malpractice Cases
There 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

Court Appointed Appraiser Not Liable to the Parties

Posted in Legal Malpractice Cases
Court 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

Some Problems, But No Intent to Deceive

Posted in Legal Malpractice Cases
Judiciary 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

When It All Comes Together and The Statute of Limitations

Posted in Legal Malpractice Cases
We’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

No Jurisdiction, No Departures, No Case

Posted in Legal Malpractice Cases
Genet 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

The “Continuing Wrong” Doctrine and the Statute of Limitations

Posted in Legal Malpractice Cases
The 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

Continuous Representation in Professional Negligence Settings

Posted in Legal Malpractice Cases
The 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

Mental Illness, Insanity and the Statute of Limitations

Posted in Legal Malpractice Cases
Reading 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

Accounting Malpractice and Summary Judgment

Posted in Legal Malpractice Cases
Vitale 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

Not Legal Malpractice, Not Judiciary Law 487, Not Going Forward

Posted in Legal Malpractice Cases
Freeman 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
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