Legal Malpractice

It's Too Early for Legal Malpractice

By (Andrew Lavoott Bluestone)

Ripeness and mootness are two concepts not all that readily associated with litigation.  If a case exists, it should be ready to adjudicate, no?  If someone has been damaged, then the case cannot be moot?  We see one such example in GREENSTREET FINANCIAL, L.P., -against- CS-GRACES, LLC, et al., Defendants. CS-GRACES, LLC, et al.,07 Civ. 8005 (KNF)UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK2010 U.S. Dist. LEXIS 84827.

In this multi-party case, fourth party defendant attorneys were brought in "[i]n the unlikely event that the Smul Trust and Sheryl Smul are found liable in contract to [the] Third Party Plaintiffs in this action, . . . Sheryl Smul and the Smul Trust . . . have a right of action . . . for indemnity against their former attorneys, Stoloff & Silver, LLP and Gary D. Silver," because they engaged in legal malpractice."

The Court determined that it was a wee bit too early.  ""A plaintiff must establish the following elements for a claim of legal malpractice under New York State law (1) an attorney-client relationship, (2) [*6] attorney negligence (3) that is the proximate cause of a loss, and (4) actual damages." Stonewell Corp. v. Conestoga Title Ins. Co., 678 F. Supp. 2d 203, 208 (S.D.N.Y. 2010). "To succeed on a motion for summary judgment in a legal malpractice action, the defendant must establish that the plaintiff cannot prove at least one of these essential elements." Id. at 209.

In the instant case, "actual damages" have not been determined, since judgment has not been entered against Smul and the Smul Trust in this action, and, according to the fourth-party defendants, litigation is also pending in Florida, that might affect the amount, if any, for which Smul is liable to the plaintiff and/or the third-party plaintiffs. Therefore, to the extent the fourth-party defendants move for summary judgment, their motion must be denied, without prejudice, as premature, since the issue of "actual damages" has not yet been determined. See id. at 214 (finding that adjudication of a legal malpractice claim was "premature" when the plaintiff could not "establish actual damages absent a final judgment or resolution in the still pending controversy"). As a result, the fourth-party defendants' request, that the claims [*7] made against them in the Fourth-Party complaint be stayed, pending resolution of the claims against Smul and the Smul Trust, is granted. See id (noting that "a legal malpractice claim may not be asserted until the matter on which the claim is based has been concluded," and determining that the legal malpractice claim would be tried after a verdict was rendered, if still appropriate). The motion to sever is denied, as moot."

Full post as published by New York Attorney Malpractice Blog on September 16, 2010 (boomark / email).