Legal Malpractice

An Endless Conflict: Attorney Fees and Malpractice

By (Andrew Lavoott Bluestone)

Attorney fees are an endless source of conflict.  They have always been an endless source of conflict.  We faintly remember from high school that Abraham Lincoln was involved in attorney fee litigation.  Today is no exception.  inLanda v Blocker ;2011 NY Slip Op 00191 ;Decided on January 11, 2011 ;Appellate Division, Second Department  we see attorney fees in the matrimonial law arena.
Although we do not know (and the decision avoids discussion) of how the 22 NYCRR 1200 et seq rules impact this matrimonial attorney fee issue, we see defendant's legal malpractice case gutted.

"The Supreme Court properly denied the defendant's motion for summary judgment dismissing the amended complaint, but it should also have denied that branch of the plaintiff's motion which was for summary judgment on the first cause of action to recover on an account stated.

The plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the first cause of action by tendering invoices for services rendered prior to December 5, 2006, setting forth his hourly rate, the billable hours expended, and the particular services rendered, and establishing that the defendant signed such invoices, failed to timely object to the invoices, and made partial payments thereon (see Landa v Dratch, 45 AD3d 646, 648; Landa v Sullivan, 255 AD2d 295). In opposition, however, the defendant submitted her own affidavit, which was sufficient to raise a triable issue of fact as to whether she acquiesced in the correctness of the invoices (see Interman Industrial Products, Ltd. v R.S.M. Electron Power, Inc., 37 NY2d 151, 153-154; Rodkinson v Haecker, 248 NY 480, 485). "
 

"The Supreme Court properly granted that branch of the plaintiff's separate motion which was for summary judgment dismissing the defendant's counterclaims, among other things, to recover damages for legal malpractice. Although an attorney's affirmation may serve as an expert opinion establishing "[a] basis for judging the adequacy of professional service" (Zasso v Maher, 226 AD2d 366, 367), here, in opposition to the plaintiff's prima facie showing of entitlement to judgment as a matter of law, the attorney's affirmation submitted by the defendant was insufficient to raise a triable issue of fact as to whether the plaintiff was negligent in his representation of her in the underlying matrimonial action (see Scartozzi v Potruch, 72 AD3d 787, 788-789). Moreover, in opposition to the plaintiff's prima facie showing, the defendant failed to raise triable issues of fact with respect to her other counterclaims."

Full post as published by New York Attorney Malpractice Blog on January 18, 2011 (boomark / email).