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 Bros. View Full Post
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.  View Full Post
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 allegations that the “settlement .  View Full Post
The trilogy of claims in a legal-professional negligence setting are legal malpractice, breach of contract and breach of fiduciary duty.  Claims are duplicitive if they arise from the same set of facts and claim the same or similar damages.  We think that a legal malpractice claim which seeks the value of a lost asset or a lost claim is different from a breach of contract claim which seeks damages derived from the legal billings (not a lost asset or a lost claim) and that a breach of fiduciary duty which seeks damages derived from a conflict of interest or excessive billing are all non-duplicitive.  View Full Post
Some important facts are proffered late in the case description, but Aybar v Cohen, Placitella & Roth, PC 2018 NY Slip Op 50278(U)  decided on February 28, 2018  Supreme Court, Queens County,  McDonald, J. is a question of jurisdiction and choice-of-law as often comes up in auto accidents in far-off states.  View Full Post
A disciplinary violation, without more, cannot support a legal malpractice case.  The lesson of Arga Capital, Inc. v Kreiner & Kreiner LLC  February 23, 2018  Supreme Court, New York County Docket Number: 651649/2014  Judge: Saliann Scarpulla  is that a conflict of interest coupled with demonstrable negligence can definitely support a legal malpractice claim. View Full Post
The statute of limitations is well known to be 3 years for legal malpractice.  When it starts is firmly set in stone.  It starts when the mistake is made.  Continuous representation is also well known, but murkier.  In general, there must be a continuing relationship of trust and confidence between the client and the attorney with a shared understanding of the necessity of further required work with that work being undertaken by the attorney.  View Full Post