On appeal this legal malpractice arising from a medical malpractice case reated a partial reversal after suffering dismissal in Supreme Court.  The attorney who was defended by Kaufman Borgeest Ryan attorney Michael Furman won his appeal.  Attorney Mondora, representing himself, lost, and had his dismissal reversed.  A pyrrhic victory against a pro-se uninsured attorney??

They say that this med mal case closed down an organ transplant hospital program in LA.  Doctors were rejecting viable organs and keeping transplant paitients waiting.  Plaintiff successfully sued, then learned more.

"A state appeals court has resurrected the malpractice lawsuit that helped shut down UCI Medical Center’s troubled liver transplant program.

A lower-court judge threw out the case two years ago on grounds that plaintiff Elodie Irvine had agreed to a $50,000 settlement from the hospital.

Irvine, who had deadly kidney and liver disorders, spent four years on UCI’s organ transplant waiting list before transferring to another hospital and getting the procedures done within two months.

She sued UCI in 2004 for negligence and fraud. A year later, she signed an agreement to settle the case for $50,000. But before the check arrived, she found out the Orange hospital had rejected 38 livers and 57 kidneys available to her through a national organ clearinghouse. "

She refused to cash the $50,000 check and asked a judge to overturn the settlement. The judge denied her request.

Irvine, of Irvine, appealed that ruling and scored a victory Monday when a four-judge panel for the 4th District Court of Appeal said Orange County Superior Court Judge Randell Wilkinson had erred when he rejected her motion to overturn the settlement agreement.

In reinstating Irvine’s case, the appeals court didn’t evaluate the merits of her cla

This short news article tells us that this law firm has a lot of legal malpractice litigation going on around it.

"An Augusta attorney and his former law firm claim they are justified in withholding certain information from a former client who is suing them.

Monday was the deadline for William Fleming, John Fleming and The Fleming firm to respond to a motion filed by Wendell A. Jenifer’s new attorneys.

Mr. Jenifer alleges the Fleming attorneys were negligent and cost him a chance of receiving compensation for a 1999 injury.

The federal lawsuit against the Fleming attorneys was filed last year. Last month Mr. Jenifer filed motions asking the court to force the Fleming attorneys to turn over certain information.

Mr. Jenifer’s attorney complained to the court that the Fleming attorneys were holding back information about 22 other malpractice claims that were filed with the Fleming firm’s insurance company in 2002.

We’re proud to present our 1000th story here on the New York Atorney Malpractice Blog. 

Thanks for reading and staying with us for Legal Malpractice News and cases.

Attorney attendence at trials and conferences is a big source of legal malpractice troubles.  Here is a case from Brooklyn:

Diamond v. Diamante, 27030/03
Decided: March 22, 2007

Justice Diana A. Johnson

KINGS COUNTY
Supreme Court

"On the trial adjourn date of November 15, 2006, plaintiff Claudia Diamond and her attorney James D. Reddy failed to appear. Plaintiff Sheldon Diamond, the husband of Claudia Diamond, appeared and related that Mr. Reddy had told him the day before that he would be unable to be in court, that he had two other cases on Long Island, and to ask for an adjournment. Mr. Diamond was not given an affirmation of engagement to present to the Court by Mr. Reddy.

Mr. Grossman moved to dismiss the action with prejudice. In response Mr. Diamond stated that his wife should not be punished for Mr. Reddy’s actions, that hiring him had been a terrible mistake, and that his wife was sick and she should have an opportunity to have justice served. The court clerk indicated that Mr. Reddy had called the day before seeking an adjournment claiming his client Claudia Diamond was sick.

On consideration of the attendant circumstances the Court finds Mr. Reddy failure to appear on November 15, 2006 was without good cause. The Court is cognizant of the fact that Mr. Reddy is a solo practitioner and is loath to impose sanctions. In consequence the Court sought to avoid having the hearing and encouraged Mr. Reddy to settle the costs matter with Mr. Grossman and Ms. Punzone. The Court indicated if a settlement was made, the Court would consider the matter closed regarding his nonappearance on November 15, 2006 and not proceed with the sanctions hearing. However, Mr. Reddy insisted in the correctness of his actions and that he had been entitled to an adjournment under Part 125. Mr. Reddy has totally misconstrued the function of Part 125 which is to delineate and provide the criteria upon which an attorney may obtain an adjournment based on being otherwise engaged. This is in recognition of the fact that at times the responsibilities of competing cases may cause an attorney through no fault of his/her own to have conflicting engagements. Its purpose is to set up priorities when such conflicts arise, not to create a way for an attorney to extricate himself from a scheduled trial date he is aware of, by setting up a conflict and then using the conflicting engagement as the excuse for not appearing when the other side will not consent to an adjournment. No less than his own affirmation of engagement establishes that his failure to appear was self-created and avoidable. As stated at paragraph 13, "[b]ased on the reported illness of the plaintiff Claudia Diamond by her husband and the inability to continue her testimony on November 15, 2006, I seized the opportunity to seek a temporary restraining order . . . ." (emphasis added). Mr. Reddy’s explanation for not appearing is without merit and is inexcusable. Accordingly the Court finds based on the testimony elicited at the hearing that the reasonable amount of costs incurred by Ms. Punzone due to her appearance on November 15, 2006 to be $129.00; and the reasonable amount of costs incurred by Mr. Grossman to be $500.00. The Court further imposes upon Mr. Reddy sanctions pursuant to Subpart 130-2 in the sum of one thousand dollars ( $1000.00) to be deposited with the Lawyers’ Fund for Client Protection. Judgment is granted against Mr. Reddy accordingly.

This NJ case was was "dismissed on the ground that plaintiff had voluntarily settled the underlying case without exhausting its appeal and separate active lawsuits, and thus was precluded as a matter of law from attempting to recoup the difference in the malpractice action against defendant. We reverse and remand. " wrote the SUPERIOR COURT OF NEW JERSEY,APPELLATE DIVISION ,
DOCKET NO. A-2991-05T52991-05T5 .

"We are persuaded by many of plaintiff’s arguments and are satisfied the complaint should not have been dismissed on summary judgment. This case is factually and legally distinguishable from Puder and does not have the "fairness and the public policy [considerations] favoring settlements" or the equities that pervaded that case. Plaintiff’s principal never represented to anyone, let alone a court, that its settlement with the nursing homes was a "fair" and satisfactory resolution of its underlying claims. Nor by now suing Squitieri for malpractice is plaintiff seeking to profit from litigation positions that are "clearly inconsistent and uttered to obtain judicial advantage." Puder, supra, 183 N.J. at 444 (quoting Newell v. Hudson, 376 N.J. Super. 29, 46 (App. Div. 2005)). Moreover, plaintiff did not settle the underlying suit with the nursing homes prior to the trial court ruling on its motion to amend the complaint to assert the omitted Medicare-denied claims. That plaintiff chose to take the further steps and appeal the trial court’s denial of its motion to amend and to file the subsequent lawsuits to preserve the statute of limitations on its underlying claims, and thereafter decided, for a variety of reasons, to settle with the nursing homes prior to obtaining judicial determinations did not, under the circumstances of this case, preclude plaintiff’s malpractice claim as a matter of law.

The trial court should have evaluated whether plaintiff took reasonable steps, from plaintiff’s point of view, to remedy Squitieri’s alleged negligence before pursuing its malpractice action, which presented factual issues that could not be decided on this record on summary judgment. Instead, the court erroneously assumed as a matter of law under Puder that by filing the appeal and subsequent lawsuits, plaintiff had other forums in which to pursue its underlying claims, which it voluntarily chose not to pursue, and thus it was estopped from now proceeding against Squitieri. Moreover, the record does not support the court’s finding as to the viability of the two Law Division actions. On the contrary, we are satisfied there was credible evidence the complaints would not withstand Dellridge nursing home’s May 2003, dismissal motion. There was also an insufficient basis for the court’s finding on summary judgment that plaintiff had a good chance of success on its appeal. We do not believe the case law is as clear-cut as stated by the court. Expert testimony will most likely be required to assist the jury to determine the merits of plaintiff’s appeal of the underlying case and the potential for reversal of the motion judge’s denial of leave to amend the complaint, as well as the merits of the nursing home’s cross-appeal of the jury verdict. Furthermore, in assessing the reasonableness of plaintiff’s actions, the jury will also need to analyze all of the considerations that entered into plaintiff’s decision to settle the underlying case and dismiss the appeal, including the amount of the settlement.

We reverse the summary judgment dismissal of plaintiff’s malpractice complaint and remand for further proceedings. Plaintiff will proceed to prove Squitieri’s malpractice by way of the suit-within-a-suit or other appropriate format. Garcia v. Kozlov, Seaton, Romanini, & Brooks, P.C., 179 N.J. 343, 358 (2004). Defendant has the right to assert, among its other defenses, that it was unreasonable for plaintiff to settle the underlying case and dismiss the appeal, including that the amount of the settlement was unreasonable. "

We had not heard of this particular branch of legal malpractice before, but upon examination, it is a classic.  Equity-stripping foreclosure  fraud legal malpractice.  Here’s the basic outline:  homeowner gets in financial trouble, faces foreclosure.  Group, including lawyers comes in, induces the homeowner to transfer ownership to avoid foreclosure.  Group gets a new mortgage, re-sells through their superior ability/knowledge and disposesses the homeowner.  

No surprise, there is a web site devoted to this particular problem. Read on.  Q:  How did they get these big-law firms to represent them????

"A foreclosure rescue lawsuit brought by a couple in a Brooklyn, New York Federal Court was settled privately by the parties involved earlier this year. The homeowners in this case brought suit against foreclosure rescue operator Principle Investors Realty, and individuals Frankie L. Freeman, Edith A. Lorick, attorneys Fred D. Way, III (remember him from yesterday’s posts) and Appolo Pitton, and Kevin Waite, who ultimately ended up with the title to the home. When the homeowners approached the operators for help in "saving" their home, they (the foreclosure rescue operator) allegedly proceeded to engage in an equity stripping, foreclosure rescue deal that ultimately forced the homeowners out of their home. According to the allegations contained in the lawsuit:

"But instead of helping the Hineses save their home, Freeman induced them to transfer their deed to his associate, defendant Edith A. Lorick ("Lorick"), who took out a new mortgage on the property that exceeded the Hines’s previous mortgage by more than $100,000; distributed the proceeds of the new mortgage to himself and his co-conspirators; and demanded monthly rental payments from the Hineses that he knew they could not afford. Unable to make the payments, the Hineses were forced to move out of their home."
According to the lawsuit, the property was ultimately sold for $100,000 more than the amount of the subsequent mortgage taken out by Lorick, and nearly $200,000 more than the payoff amount on the homeowners’ original mortgage. The homeowners allegedly only received $10,000 in the transaction.

This lawsuit brought claims (not unlike many of the claims brought in those New York cases I reported on in yesterday’s posts) against those involved for:

Equitable Mortgage (NY Real Property Law Sec. 320),
Violations of the Federal Truth In Lending Act,
Violations of the Federal Real Estate Settlement Procedures Act,
Common law fraud,
Conspiracy to commit fraud,
Violations of New York State General Business Law Sections 349 & 350 ("The Deceptive Practices Act"),
Conversion,
Unjust Enrichment and Constructive Trust,
Legal Malpractice
Representing the homeowners in this case were attorneys from the firms Chadbourne & Parke, LLP and Patterson Belknap Webb & Tyler LLP. 

"

Federal judge on Friday declined to dismiss a challenge to the constitutionality of New York state’s new rules on attorney advertising.

Northern District Judge Frederick J. Scullin Jr., sitting in Syracuse, set June 18 for the beginning of a trial on the constitutionality of the state’s new guidelines on attorney advertising.

The new rules, adopted by the presiding justices of the four Appellate Divisions, went into effect Feb. 1. They are being challenged by the personal injury firm Alexander & Catalano of Syracuse and Rochester, that firm’s co-founder James L. Alexander and Public Citizen Inc., a Washington, D.C.-based advocacy group founded by Ralph Nader in 1971.

After a hearing, Judge Scullin denied the state’s motion to dismiss in Alexander v. Cahill, 5:07-CV-00117. Ruling from the bench, he also reserved judgment on the plaintiff’s motion for a preliminary injunction against enforcement of the rules and told the parties to prepare for an expedited trial.

"It is a great victory for us because it will allow us to get a final determination of the constitutionality of these rules pretty quickly," Gregory A. Beck of the Public Citizen Litigation Group who argued Friday for Public Citizen and the Alexander & Catalano firm said in an interview. "Every day that goes by is another day that those First Amendment rights are being violated."