Matrimonial legal malpractice cases are difficult for plaintiff.  Generally they end in a settlement and courts have held that mere settlement (even if effectively compelled by mistakes of counsel) will not permit a legal malpractice case to be brought.  Other courts have held that the allocution which generally  accompanies an in-court settlement serves to immunize…

Amtrust N. Am., Inc. v Pavloff  2020 NY Slip Op 31005(U)  April 23, 2020 Supreme Court, New York County  Docket Number: Index No. 156855/2019 Judge: Andrew Borrok is a wonderful recapitulation of how “but for” causation, proximate cause, allegations of damage in a pre-answer motion to dismiss should be handled.  All too often, judges require…

A frequently repeated principle of legal malpractice is that the “but for” portion of the case is really where all arguments center.  Few legal malpractice cases are brought where a departure by the attorney is not glaring.  The more perplexing question is what would have happened if the attorney had not made a mistake.  in…

There are four elements to legal malpractice.  In shorthand, they are departure, proximity, “but for” causation and ascertainable damages. Karambelas v Cohen Goldstein, LLP  2020 NY Slip Op 30994(U) April 2, 2020 Supreme Court, New York County Docket Number: Index No. 15163 demonstrates how the Court will examine the underlying case (sometimes to an extreme…

In Markov v Barrows 2020 NY Slip Op 31010(U) April 20, 2020 Supreme Court, New York County Docket Number: Index No. 158043/2019 decided by Judge Margaret A. Chan we see a well-written explanation of the tension between a departure from good practice (failing to name a party) and the requirement that the “but for” showing…

In Komolov v Popik  2020 NY Slip Op 30909(U)  April 7, 2020 Supreme Court, New York County Docket Number: Index No. 155100/2017 Judge: Barbara Jaffe determines that both prior Supreme Court judges and Appellate Division panels made fundamental mistakes.  They each inconsistently ignored a written contract.  They each applied incorrect standards to determining motions…

Phillips Nizer LLP v Scollar  2020 NY Slip Op 30791(U) March 13, 2020  Supreme Court, New York County  Docket Number: 154972/2017 Judge: David Benjamin Cohen is an example of how the case within a case doctrine is applied to a legal malpractice counterclaim.  The law firm sued for fees  and the defendant-client counterclaimed for legal…

In a legal malpractice setting, Plaintiff’s motion for partial summary judgment almost never wins. U Joon Sung v Park  2020 NY Slip Op 01571
Decided on March 10, 2020 Appellate Division, First Department illustrates the problem.  Although liability seems obvious, Plaintiff was unable to demonstrated, prima facie that he would have succeeded in proving a…