Cruise Ship Negligence and Legal Malpractice

Cruise Ship Season comes and goes, and even in poor economic times, the ships carry many people to their vacations.  As in all events human, there will be accidents and injury.  The very nature of cruise ships, their location and the mere fact that they travel on water, complicates the legal horizon.  Nautical law is different from terrestrial law, and many times [for legal advantage] the ships themselves are registered in other countries.

All this leads to mistakes when a passenger is physically injured.  Whom does one sue, the travel agent or the cruise ship line?  Where does one sue?  How does one effect service of process?  These are just some of the smaller questions.  How do you line up the witnesses, now back in their many different homes?  How do you get the medical testimony, which was taken far, far away?

Here is a legal malpractice case from such an occurrence.  Engler v Kalmanowitz ;2009 NY Slip Op 02237   Decided on March 24, 2009   Appellate Division, First Department .  Here, the legal malpractice claim is not set forth.  Was it service of process?  Was it failure to bring the action in a timely fashion?  We do not know.  What we do know is that Supreme Court determined that there were questions of fact still existing and that the Appellate Division found, as a matter of law, that the cruise ship, who was not a party to the legal malpractice action, had no notice of the defective carpet.
 
An Attorney's Mistake with No Remedy in Legal Malpractice

Nature abhors a vacuum, they told us in high school and the law abhors a wrong without a remedy. One particular area of legal malpractice where this occurs is criminal defense, in which no legal malpractice action might be brought by a convicted defendant, no matter whether the attorney's mistakes contributed, or caused the conviction.

Another area is the estates-peri-death area.  One example is the will beneficiary who does not receive a legacy or bequest because of attorney mistakes, but has no privity.  The attorney's mistake may not be litigated by the will beneficiary.  Here is another example:

Estate of Saul Schneider v Finmann ;  2009

NY Slip Op 02319  Decided on March 24, 2009

Appellate Division, Second Department .  Assume here for this example that the attorney mishandled the insurance transfer.  Money is lost to the estate because of it.  May the estate successfully sue?  No.
""The well-established rule in New York with respect to attorney malpractice is that absent fraud, collusion, malicious acts or other special circumstances, an attorney is not liable to third [*2]parties, not in privity, for harm caused by professional negligence" (Estate of Spivey v Pulley, 138 AD2d 563, 564). Inasmuch as the estate was not in privity with Finmann, and there is no allegation that one of the exceptions to the privity requirement is applicable here, the estate may not maintain an action for legal malpractice against Finmann in its own right (see Deeb v Johnson, 170 AD2d 865; cf. Estate of Nevelson v Carro, Spanbock, Kaster & Cuiffo, 259 AD2d 282, 285). Moreover, Schneider himself did not have a claim during his lifetime against Finmann for legal malpractice, since the only alleged damage suffered from the malpractice was the increase in estate tax liability, which could not have been incurred while Schneider was alive. Consequently, the estate may not maintain this action under EPTL 11-3.2(b) (see EPTL 11-3.2[b]; Deeb v Johnson, 170 AD2d at 866; Rutter v Jones, Blechman, Woltz & Kelly, P.C., 264 Va 310, 314; cf. Nembach v Giaimo & Vreeburg, 209 AD2d 222, 222-223). "
 
Fee Suits and Legal Malpractice Counterclaims - A Constant Duo

"The best defense is a strong offense"..."Tyranny shall not go unopposed!"  which of these two opposing story lines will succeed in a legal fee / legal malpractice case.  Here is one example where the fee side wins out.    Duane Morris LLP v Astor Holdings Inc. ,  2009 NY Slip Op 02544

Decided on April 2, 2009   Appellate Division, First Department  permits the attorneys to collect their fee, and the malpractice claims to die. 

"The record shows that in December 2003, each defendant signed an agreement with plaintiff, acknowledging that it owed plaintiff a certain sum of money for their legal representation and agreeing to pay it within a certain amount of time. Although defendants contend that there is a triable issue of fact as to whether these agreements were signed under duress, "[r]epudiation of an agreement on the ground that it was procured by duress requires a showing of both (1) a wrongful threat, and (2) the preclusion of the exercise of free will" (Fred Ehrlich, P.C. v Tullo, 274 AD2d 303, 304 [2000]).  The affidavit of defendants' principal, which claimed that he orally protested plaintiff's services, does not serve to defeat plaintiff's motion. A client's "self-serving, bald allegations of oral protests [a]re insufficient to raise a triable issue of fact as to the existence of an account stated" (Darby & Darby v VSI Intl., 95 NY2d 308, 315 [2000])

The part of defendants' malpractice counterclaim that dealt with the action against Edward Roski III was properly dismissed. "A legal malpractice action is unlikely to succeed when the attorney erred because an issue of law was unsettled or debatable" (Darby, 95 NY2d at 315 [internal quotation marks and citation omitted]). When the Southern District of New York found that some of Astor's claims in the Roski Action were barred, it noted that "there appears to be no federal authority directly on point" (Astor Holdings, Inc. v Roski, 325 F Supp 2d 251, 262 [SD NY 2003]), and relied on a California state case that was decided in 2002 (see id.), which was after the Roski action was filed...."