New York Attorney Malpractice Blog

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Expert disclosure in New York is truely a black hole.  The statute does not require much by way of naming the expert.  You have to give the name and a little bit about what the expert will say.  However, the timing is completely up to court discretion.  Here is what one plaintiff did in a pinch. Mazzurco v Gordon 2019 NY Slip Op 04930  Decided on June 19, 2019 Appellate Division, Second Department allowed plaintiff to pay…
Too speculative is a defense commonly utilized by defendants in legal malpractice settings.  Here, in Birch v Novick & Assoc., P.C.    2019 NY Slip Op 31712(U) June 14, 2019 Supreme Court, New York County Docket Number: 161445/13, Justice Carol R. Edmead discusses just how speculative they might be. “Defendants argue that the complaint must be dismissed, as Plaintiff has not sustained any ascertainable damages. Weinblatt, one of the attorney’s Plaintiff hired after losing confidence in Defendants, who is also…
We have argued that legal malpractice cases are disproportionately subject to early dismissal. Our theory is that Courts have an inherent and innate bias in favor of attorneys.  There is a plethora of academic and real world experience to support this thesis.  Anecdotally, Baugher v Cullen & Dykman, LLP  2019 NY Slip Op 04904  Decided on June 19, 2019  Appellate Division, Second Department is no real surprise. “The plaintiff commenced this action in 2016 to recover legal…
A motion in limine is an advisory pre-trial evidentiary ruling.  A motion for summary judgment is a dispositive motion which seeks to limit a claim or a recovery.  In Mazzurco v Gordon  2019 NY Slip Op 04931  Decided on June 19, 2019  Appellate Division, Second Department the motion in limine succeeded. “In this action to recover damages for legal malpractice, the plaintiff alleges that the defendants failed to properly advise him and to protect his rights in…
The question of statute of limitations in a professional negligence setting is little different from that the same issue in a legal malpractice setting.  CPLR 214(6) is the applicable statute in both and both have the concept of continuing representation. Board of Mgrs. of 141 Fifth Ave. Condominium v 141  Acquisition Assoc. LLC  2019 NY Slip Op 31555(U)  June 3, 2019 Supreme Court, New York County Docket Number: 651426/2013  Judge: Saliann Scarpulla discusses it here: “On a motion to…
As proof that Judiciary Law § 487 has entered the mainstream, and will likely be snapchatted soon,  take a look at Delbaun v Self Represented Kevin McKeown  May 30, 2019  Supreme Court, New York County Docket Number: 157986/2018 Judge: Andrew Borrok.  First, the names.  Is the caption not a tip off that this is a case with craziness in it?  Second, the cause of action.  Defendant would not return a book? OK.   How did these folks know about JL §…
Owner A performs work in a NYC building.  Owner B is damaged.  Owner B sues Owner A as well as the building.  Lots of attorney fees are generated.  Owner B then sues the attorneys for the Board for legal malpractice.  Standing?  No.  Derivative claim on behalf of the Board.  No.  Second chance? Yes. “This action arises from certain work performed pursuant to a certain Alteration Agreement (the Alteration Agreement), dated January 2004, by and between…
The Appellate Division gave explicit advice, not often heard, on how to deal with an Order to Show Cause which a judge declines to sign.  In the end, everyone seems to have done it wrong.  In Cypress Hills Mgt., Inc. v Lempenski  2019 NY Slip Op 04677  Decided on June 12, 2019 Appellate Division, Second Department waded into the swamp: “After defaulting in this action, the defendant attempted to move by order to show cause to…
Dillon v Peak Envtl., LLC  2019 NY Slip Op 04548  Decided on June 7, 2019  Appellate Division, Fourth Department is the story of an upstate commercial case which went through a lot of procedural wrangling, up to the Appellate Division, with little forward movement.  Legal malpractice is an important but not properly plead part. “Memorandum: Plaintiffs commenced this action against defendants-third-party plaintiffs (third-party plaintiffs) seeking damages for, inter alia, fraudulent inducement and breach of contract. Third-party plaintiffs…
It seems as if the Appellate Division scratched its head on this claim of legal malpractice.  It seemed not sure how to calculate the claimed departure from good practice.  In Kaplan v Conway & Conway  2019 NY Slip Op 04477  Decided on June 6, 2019  Appellate Division, First Department it questioned the foundation of the legal malpractice case. “The motion court properly granted defendants’ motion to dismiss. The complaint alleged that defendants committed legal malpractice by failing…