Thursday Attorney Malpractice Update 2/7/08
Posted: February 7th, 2008
By: Andrew Bluestone, Esq.
Category: Attorney Malpractice

CASES THIS WEEK IN LEGAL MALPRACTICE

STEPHEN F. BRUMMER, PLAINTIFF, v TOWN OF TONAWANDA, ET AL., DEFENDANTS. CHRISTOPHER A. SPENCE, P.C., APPELLANT; THE BARNES FIRM, P.C., SUCCESSOR TO CELLINO & BARNES, RESPONDENT.

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT

2008 NY Slip Op 871
February 1, 2008, Decided

 Attorney 1 represents a construction accident plaintiff up to the point of a motion for summary judgment against the employer on Labor Law section 240.  He is replaced by Attorney 2, who continues the case through settlement.  In the ensuing attorney fee dispute Attorney 2 claims that Attorney 1 committed legal malpractice and is due no fees.  The court holds that the question of attorney malpractice may be raised only by plaintiff, if it chooses to sue Attorney 1.  Query:  will Attorney defend such a suit with a collateral estoppel argument?

Samuel Cosentino, Plaintiff-Appellant, v Sullivan Papain Block McGrath & Cannavo, P.C., Defendant-Respondent.

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT

2008 NY Slip Op 625

January 31, 2008, Decided

Complaint dismissed when plaintiff cannot show “but for” causation, and makes wholly conclusory arguments.  This formulation by the court is often simply another way of saying that they do not like the case.  One day’s conclusory allegations are the next days satisfactory complaint.  Here, the court did not like the ethical rule violations argument at all.

Brian Cohen, et al., Plaintiffs-Appellants, v Michael Weitzner, Esq., et al., Defendants-Respondents.

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
2008 NY Slip Op 618;
January 31, 2008, Decided

“Plaintiffs allege that the settlement required them to pay more in taxes than they had anticipated based on a spreadsheet prepared for them by defendants in which, due to a typographical error, their tax liability for the year 2000 was understated by $ 121, 000, and that they have been damaged in that amount by defendants' misrepresentation. However, plaintiffs' tax liability was correctly reflected in the returns they filed before retaining defendants and entering into the settlement agreement. In any event, their tax liability was not the subject of the negotiations with the IRS. Thus, plaintiffs fail to allege how defendants' error damaged them.”

Elaine Lupo, Plaintiff-Respondent, against Alan M. Cass and Alan M. Cass & Associates, Defendants-Appellants.

SUPREME COURT OF NEW YORK, APPELLATE TERM, FIRST DEPARTMENT
2008 NY Slip Op 50170U;
January 29, 2008, Decided

“Plaintiff's first cause of action alleging legal malpractice was sufficiently pleaded to survive defendants' CPLR 3211(a)(7) motion to dismiss. The alleged facts if accepted as true, accorded the benefit of every possible favorable inference, and evaluated only as to whether they fit within any cognizable legal theory sufficiently stated plaintiff's claim that but for defendants' negligence in their representation of plaintiff in a Worker's Compensation proceeding, she would have prevailed on the underlying claims.”

Here, plaintiff’s worker’s compensation case was lost when defendants showed up for a medical causation hearing without a physician, but worse, had the opportunity to notify the court and did not.  The court would not adjourn the hearing, and found against the plaintiff.

For more information, please visit the New York Attorney Malpractice Blog.

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