Legal Malpractice

A 13 Year Saga in Legal Malpractice

By (Andrew Lavoott Bluestone)

Experience in listening to potential legal malpractice litigants tell their story reveals the darker side of many of society's institutions: family, marriage, friendship.  This case,Benedict v Whitman Breed Abbott & Morgan ;2010 NY Slip Op 07704 ;Decided on October 26, 2010 ;Appellate Division, Second Department arises from a "family matriarch" who refused to vote shares in a family trust, thus "causing her to breach a special fiduciary duty to them in voting their shares, pursuant to a proxy, to approve certain self-dealing transactions of the advisors. Although Benedict was informed of the pendency of the action and was sent a copy of the complaint in 1999, she did not seek leave to intervene. "  As time went on, and the case progressed, various of the litigants died.

"In March 2007, the defendant Richard A. Piemonte commenced a third-party action against Benedict. Benedict served an answer asserting counterclaims and cross claims against all parties. Thereafter, the plaintiffs moved to dismiss the counterclaims asserted against them, the defendants Whitman Breed Abbott & Morgan (hereinafter WBAM), Whitman and Ransom, and various defendant individual partners of those firms, and the defendant Estate of George J. Noumair (hereinafter collectively the law firm defendants) separately moved to dismiss the counterclaims asserted against them, and the defendants Peter J. Repetti & Co., Peter J. Repetti, Jr., John R. Repetti, and Philip Tassi (hereinafter collectively the accounting firm defendants) moved to dismiss the counterclaims asserted against them, inter alia, pursuant to CPLR 3211. The Supreme Court granted the motions to dismiss, and Patrick J. Carr, as executor of Benedict's estate (hereinafter the appellant) appeals. "

"The Supreme Court properly granted the defendants' separate motions to dismiss the appellant's counterclaims insofar as asserted against them. In his amended answer to the third-party complaint, the appellant asserted counterclaims against the law firm defendants sounding in breach of fiduciary duty, legal malpractice, and unjust enrichment, and a shareholders' derivative claim. The appellant asserted counterclaims sounding in breach of fiduciary duty, accountant malpractice, and unjust enrichment against the accounting firm defendants. It is undisputed that Whitman & [*3]Ransom went into liquidation in 1993, WBAM did not represent any family interests after 1996, and George J. Noumair died in 2000. Further, the last contact the accounting firm defendants had with the appellant was in April 1995. Accordingly, the appellant's counterclaims against those defendants were time-barred (see CPLR 213[1], [7]; 214[4], [6]; IDT Corp. v Morgan Stanley Dean Witter & Co., 12 NY3d 132, 139; North Fork Preserve, Inc. v Kaplan, 31 AD3d 403, 405). "

Full post as published by New York Attorney Malpractice Blog on November 01, 2010 (boomark / email).