Legal Malpractice

Abandonment in a Legal Malpractice Case

By (Andrew Lavoott Bluestone)

Plaintiff starts a case on their own, and then when they get near trial, hire the defendant attorneys to represent them in an action for personal injury to their child either at school, or due to the alleged negligence of the School district.  The attorneys take over, and are said to agree that they can provide a doctor/expert and obtain all the necessary medical records to try the case.

Defendants take the case off the trial calendar, work/fool around with it for a few months, then "Plaintiffs were given one year to restore the case to the calendar but failed to timely comply, and defendant subsequently refunded plaintiffs' retainer and terminated the representation. Six months after their time to do so had expired, plaintiffs moved, pro se, to restore the case to the calendar. Supreme Court (Meddaugh, J.) denied the motion and dismissed the case with prejudice retroactive to June 14, 2005, finding that plaintiffs "set forth no meritorious claim [and] no reasonable excuse for their failure to restore the case to the calendar within [one] year of the case being struck." Plaintiffs' subsequent pro se submission, attaching affidavits, letters and reports from plaintiffs' medical providers was deemed a motion to renew/reargue. In denying that motion, the court noted that the papers submitted with that application "were couched in only the most conclusory terms and failed to establish any causal connection between any allegedly improper conduct by [the school district] and the [infant's] medical conditions."
 

Plaintiffs sue for legal malpractice and defendants move to dismiss the complaint.  The Court's decision reads: "Defendant's attempt to invoke collateral estoppel is unavailing. Plaintiffs' motion to restore their case against the school district to the calendar required a showing of merit sufficient to establish a triable issue of fact (see Alise v Colapietro, 119 AD2d 921, 922 [1986]) and conclusory allegations are inadequate in that setting (see Fountain v Village of Canastota, 219 AD2d 781, 782 [1995]). In contrast, on defendant's motion to dismiss, plaintiffs' allegations, including conclusory allegations in supporting affidavits, are deemed to be true (see Berry v Ambulance Serv. of Fulton County, Inc., 39 AD3d 1123, 1124 [2007]). Defendant, therefore, failed to carry his burden to establish an identity of issues between the two actions and is not entitled to invoke the doctrine of collateral estoppel (see Cary v Fisher, 149 AD2d 890, 891 [1989]).

On the record before us, plaintiffs have stated a cause of action for legal malpractice. "'In order to sustain a claim for legal malpractice, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action "but for" the attorney's negligence'" (Leder v Spiegel, 9 NY3d 836, 837 [2007], cert denied Spiegel v Rowland, ___ US ___, ___, 128 S Ct 1696 [2008], quoting AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007] [internal citation omitted]). Although plaintiffs' evidence may be insufficient to withstand a motion for summary judgment, on an unconverted preanswer motion to dismiss, plaintiffs' allegations are accepted as true and are entitled to the benefit of every reasonable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Rovello v Orofino Realty Co., 40 NY2d 633, 634 [1976]).

Full post as published by New York Attorney Malpractice Blog on January 19, 2010 (boomark / email).