Legal Malpractice

Is This a Case of the Cobbler's Son in Legal Malpractice?

By (Andrew Lavoott Bluestone)

"The Cobbler's Son had no shoes..." is an ancient way of saying that people attend to the needs of others, including clients, while ignoring the requirements closer to home.  While the decision does not make this analogy, nor does it explicitly hinge the reasoning on the lack of an affidavit of plaintiff, we wonder whether there is some connection in a legal malpractice case which had the lack of an affidavit of plaintiff as a central motif in the underlying action.

In McComsey v. Kera Graubard & Litzman we see the plight of a Manhattan tenant.  She rented an apartment on East 67th Street, and obtained a two year lease, with a renewal clause.  Renewal required a certified or registered letter by a date certain.  Instead, plaintiff left a renewal notice in the spot where she left the rent.  After much litigation in both Supreme Court and in Housing Court, plaintiff lost, and had to pay a hefty legal bill to the landlord's attorneys.

She sued her attorneys.  One central issue was that while she was traveling in Europe a motion for summary judgment was filed, and no affidavit was submitted in opposition.  Her fault or the attorneys?

When the client sued the attorneys, they moved pursuant to CPLR 3211(a)(7)  and submitted affidavits.  But, a motion under CPLR 3211(a)(7) is on the sufficiency of the pleadings, no?  Do you need an affidavit in opposition, as if it were CPLR 3212?

Left unanswered, the court did state: 'Plaintiff opposes Defendant's motion but notably fails to submit an affidavit from Plaintiff and instead relies on counsel's affirmation.  Was the malpractice attorney wrong to respond in this way?

There is a tension between responding strongly to a CPLR 3211(a)(7) motion and going over the edge, "charting a course to summary judgment" and impelling the Court to consider the 3211 motion under 3212 rules. This is a danger, and one not to be lightly discarded as impossible.

Full post as published by New York Attorney Malpractice Blog on December 30, 2009 (boomark / email).