Legal Malpractice

Judiciary Law 487 Cases Thrive This Year in Legal Malpractice Arena

By (Andrew Lavoott Bluestone)

Since the Court of Appeals decided Amalfitano v. Rosenberg  we have seen an upswing in reported successful Judiciary Law 487 cases.  Here in Moormann v Hoerger ;2009 NY Slip Op 06518 ;Decided on September 15, 2009 ;Appellate Division, Second Department plaintiff loses legal malpractice, but avoids summary judgment on the Judiciary Law cause of action. 

Plaintiff was convicted of DWI (he blew a .30) and the DA moved to forfeit his car.  Attorneys were retained to defend criminal action and to defend the forfeiture.  Here is the shocking testimony which supported the Judicary Law case and the court's analysis.  Note that there seems to have been a single instance of deceit.

"In this regard, the defendant sent an affidavit to the plaintiff to sign in August 2004, allegedly related to the forfeiture action. The associate who sent the affidavit and the cover letter admitted, at his deposition, that he knew at the time that the default judgment had been entered and there was no possibility that the plaintiff could retrieve his vehicle, but he did not so inform the plaintiff. Eventually, the plaintiff learned through other means that the default judgment had been entered and his vehicle had been auctioned. [*2]

The Supreme Court properly granted that branch of the defendant's motion which was for summary judgment dismissing the causes of action alleging legal malpractice. The defendant established that the plaintiff would be unable to prove that he would have been successful in the forfeiture action but for the alleged negligence (see Simmons v Edelstein, 32 AD3d 464, 465; Lichtenstein v Barenbaum, 23 AD3d 440; Edwards v Haas, Greenstein, Samson, Cohen & Gerstein, P.C., 17 AD3d 517, 519). In opposition, the plaintiff failed to raise a triable issue of fact.

In addition, the defendant established, prima facie, its entitlement to judgment as a matter of law dismissing the cause of action alleging fraud, as that cause of action was not pleaded with the specificity required under CPLR 3016(b) (see Dumas v Fiorito, 13 AD3d 332, 333).

The court erred, however, in dismissing, as duplicative of the causes of action alleging legal malpractice, the cause of action alleging violation of Judiciary Law § 487. A violation of Judiciary Law § 487 requires an intent to deceive (see Judiciary Law § 487), whereas a legal malpractice claim is based on negligent conduct (see Simmons v Edelstein, 32 AD3d at 465; Edwards v Haas, Greenstein, Samson, Cohen & Gerstein, P.C., 17 AD3d at 519). Furthermore, in opposition to the defendant's establishment, prima facie, of its entitlement to judgment as a matter of law as to this cause of action, the plaintiff raised a triable issue of fact as to whether the defendant intentionally deceived him (cf. Izko Sportswear Co., Inc. v Flaum, 25 AD3d 534, 537; Knecht v Tusa, 15 AD3d 626, 627). "

Full post as published by New York Attorney Malpractice Blog on September 18, 2009 (boomark / email).