Legal Malpractice

Pro-Se Legal Malpractice Litigation

By (Andrew Lavoott Bluestone)

Attorneys gnash their teeth when litigating against pro-se parties.  The thought is that the pro-se gets an advantage; they are not held to tight deadlines, are not the subject of rule-specific dismissal, nor are they required to hew to the line of traditional court procedure.

As an example, this pro-se plaintiff in  Kleinser v Astarita; 2009 NY Slip Op 03401; Decided on April 28, 2009; Appellate Division, First Department amended the complaint without leave of court, and then after the decision dismissing the complaint against the amendees, moved for leave to add them and succeeded.  Adding individual defendants to the caption when they were partners in the already named defendant law firm may or may not have collateral benefits to the pro-se.  In this case, law of the case was not an issue.
 

"The law of the case doctrine, however, is not implicated because the court did not alter a ruling by another court of coordinate jurisdiction but rather its own ruling (Wells Fargo Bank, N.A. v Zurich Am. Ins. Co., 59 AD3d 333 [2009]). "[E]very court retains continuing jurisdiction to reconsider its [own] prior interlocutory orders during the pendency of the action" (Liss v Trans Auto Sys., 68 NY2d 15, 20 [1986]), and may do so "regardless of statutory time limits concerning motions to reargue" (id.). Thus, even if plaintiff's motion for leave to add the four partners were a belated motion to reargue the prior order dismissing the action as against those partners for failure to state a cause of action, the court had discretion to [*2]reconsider its prior order, sua sponte, and correct it. Such discretion was properly exercised here in view of plaintiff's pro se status. "

Full post as published by New York Attorney Malpractice Blog on May 01, 2009 (boomark / email).