Legal Malpractice

Legal Malpractice Case Dismissed in Contractor's Case

By (Andrew Lavoott Bluestone)

In this case. Gabrielli v Dobson & Pinci ,2008 NY Slip Op 04749 ,Decided on May 27, 2008, Appellate Division, First Department, two attorneys represented the plaintiff contractor in succession, which was unable to prosecute its case for contract damages.  Plaintiffs were able to show many departures [deviations from good and accepted practice], but came up short in the legal malpractice case.  This case is an illustration of how the "but for" principal works.

"In this legal malpractice action, plaintiffs cannot show that defendant Ferrante's failure to comply with a condition precedent under plaintiffs' contract was the cause of any loss (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]), since Ferrante did not prevent them from obtaining the same recovery at a later juncture. Nor can plaintiffs show that Ferrante failed to submit timely a notice of claim to the architect with regard to a separate claim; its timeliness was not before the Second Department when it denied the motion to compel arbitration of said claim (Matter of Anagnostopoulos v Union Turnpike Mgt. Corp., 300 AD2d 393 [2002]).

As to defendant Lefkowitz, the alleged failure to extend a mechanic's lien filed by his predecessor was not negligent because he was retained after it had expired as a matter of law. The alleged failure to commence or advise of the availability of a plenary action pursuant to General Business Law § 399-c was not negligent since the statute's bar of mandatory arbitration of certain claims was intended to benefit consumers, not plaintiffs contractors (see Ragucci v Professional Constr. Servs., 25 AD3d 43 [2005]). Even if, arguendo, plaintiffs fall within the protective ambit of the statute, any plenary action would have been barred by the condition precedent, which was also applicable to litigation. Moreover, Lefkowitz's failure to anticipate the 2005 appellate ruling in Ragucci, upon which plaintiffs rely (id.), would not have constituted [*2]a departure from the professional standard of care (see Darby & Darby v VSI Intl., Inc., 95 NY2d 308, 314 [2000]). "

Full post as published by New York Attorney Malpractice Blog on May 30, 2008 (boomark / email).