Legal Malpractice

Recent Cases in Legal Malpractice

By (Andrew Lavoott Bluestone)

RECENT CASES IN LEGAL MALPRACTICE

1. CHICAGO TITLE INSURANCE COMPANY, Plaintiff, v BARBARA J. MAZULA, Defendant and Third-Party Plaintiff-Appellant; JAMES E. KEABLE, Third-Party Defendant-Respondent.

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, THIRD DEPARTMENT

2008 NY Slip Op 27
January 3, 2008

This is a case in which the question becomes whether an individual or an estate hired the attorney. In order for plaintiff to prevail, the court must determine that the estate hired the attorney, and each of the mistakes took place while the attorney represented the estate, not the individual.

“ Defendant argues that the toll applies because the sale of the property was not an isolated transaction, but an estate matter during which Keable continued [**4] to represent defendant's husband's estate long after the malpractice accrued. We disagree. The first deed attempted to convey what was believed to be the estate's interest in the property whereas the second deed conveyed defendant's personal interest. Regardless of how the first deed was executed, defendant, as a surviving tenant by the entirety, solely conveyed her personal interest (see Matter of Mischler, 30 AD3d 859, 860, 819 N.Y.S.2d 118 [2006]). Hence, as to both deeds, Supreme Court correctly determined that Keable was always acting for defendant in her individual capacity, not in her capacity as the executor of her husband's estate 2. Since Keable performed no further work for [*3] defendant, either personally or in her capacity as executor of the estate after January 2000 in regard to this transaction, the commencement of this third-party action for legal malpractice was not timely.”

2. Gerald Goldman, et al., Plaintiffs-Appellants, v Akin Gump Strauss Hauer & Feld, LLP, et al., Defendants-Respondents.

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
2007 NY Slip Op 10492
December 27, 2007

In many legal malpractice cases, we find that the attorneys played several roles. Sometimes, they start as transactional attorneys, and morph into litigation attorneys.

Here the “documentary evidence [that] effectively precludes plaintiffs from arguing that defendants' representation in the arbitrations was continuous with their representation in the sale. Such documentary evidence consists of the affidavit submitted by plaintiffs in a prior litigation that involved an unsuccessful attempt by a limited partner to disqualify defendants from representing plaintiffs in one of the arbitrations. Therein, one of the plaintiffs stated that while defendants were retained to advise plaintiffs and, if need be, serve as their litigation counsel, in connection with litigation then being threatened by the limited partners, as to the sale itself, defendants were retained only to draw the documents necessary to consummate a deal that had already been negotiated and agreed to. Holding plaintiffs to this position (see D & L Holdings v Goldman Co., 287 AD2d 65, 71-72, 734 N.Y.S.2d 25 [2001], lv denied 97 NY2d 611, 742 N.Y.S.2d 604, 769 N.E.2d 351 [2002]), defendants' [**3] representation in the arbitrations, which involved the merits of the litigation that was being threatened by the limited partners at the time plaintiffs retained [*2] defendants, was distinct from their representation in "papering" the sale, which did not involve negotiating the terms of the sale or advising whether or not to proceed with it.”

Full post as published by New York Attorney Malpractice Blog on January 15, 2008 (boomark / email).