Legal Malpractice

10 Years Later, a Claim in Legal Malpractice

By (Andrew Lavoott Bluestone)

When one reads a decision in a pro-se legal malpractice case strange facts often emerge.  Aponte v. City of New York Department of Corrections et al.,09-2634-cv UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT;010 U.S. App. LEXIS 9988 is no exception. 

Plaintiff has been litigating this case, in various forms, for a number of years.  It seems that plaintiff was now appealing from the denial of reconsideration of earlier decisions.  His argument is premised on legal malpractice, presumably the legal malpractice of his current attorney in the handling of the motions and reconsiderations motions. Now, plaintiff wants to re-open a 1998 appeal. 

"The district court did not abuse its discretion by denying Appellant's Rule 60(b) motion for reconsideration because it was premised on the legal malpractice of counsel and not the merits of the underlying litigation. Likewise, the additional evidence referenced by Appellant was in support of his claim of legal malpractice. See Boule v. Hutton, 328 F.3d 84, 95 (2d Cir. 2003) ("Rule 60(b)(2) provides relief when the movant presents newly discovered evidence that could not have been discovered earlier and that is relevant to the merits of the litigation."); see also Fed. R. Civ. P. 60(c)(1) (a motion for Rule 60(b)(2) relief must be made "no more than a year after the entry of judgment").

Appellant requests that we "reopen" his appeal docketed under 98-9067-cv. We construe this request as a motion to recall [*3] our mandate and to reinstate his appeal. Our "power to recall a mandate is unquestioned." Sargent v. Columbia Forest Prods., Inc., 75 F.3d 86, 89 (2d Cir. 1996). "However, this power is to be exercised sparingly . . . and reserved for exceptional circumstances." Id. (citations and internal quotation marks omitted). "'The sparing use of the power demonstrates it is one of last resort, to be held in reserve against grave, unforeseen contingencies.'" British Int'l Ins. Co. v. Seguros la Republica, S.A., 354 F.3d 120, 123 (2d Cir. 2003) (quoting Calderon v. Thompson, 523 U.S. 538, 549-50 (1998)). Appellant fails to make any such showing. The only explanation he offers for waiting almost ten years to raise these claims is that he only "recently" received this Court's decision in an "anonymous package," but concedes later in his brief that, in 2000, his counsel had informed him that his appeal, docketed under 09-9067-cv, had been decided. No argument is made as to why this Court should recall the mandate other than to request that we reopen the appeal so he can add a legal malpractice claim. See Singleton v. Wulff, 428 U.S. 106, 120 (1976) ("It is the general rule . . . that a federal appellate [*4] court does not consider an issue not passed upon below."). Accordingly, we find no manifest injustice would result from not recalling the mandate because any appeal would be meritless."
 

Full post as published by New York Attorney Malpractice Blog on May 18, 2010 (boomark / email).