Legal Malpractice

Is This the Oldest Legal Malpractice Case in New York?

By (Andrew Lavoott Bluestone)

This case from the Appellate Term illustrates the timelyness of a counterclaim.  It does not discuss what would have happened if the counterclaim were not timely.  Even an untimely counterclaim may continue as an offset to the claim itself, but may not be pursued for a value above that of the claim.  Example;  Claim = $ 100.00  Timely Counter-claim for $1,000 permitted.  Untimely counterclaim up to but not over $ 100 permitted.

This truly old case illustrates"

Miligrim, Thomajan & Lee n/k/a Varet & Fink, P.C., Plaintiff-Respondent, against Golden Gate Petroleum, P.C. And Dennis O'Keefe, Defendant-Appellant.

570208/08.

SUPREME COURT OF NEW YORK, APPELLATE TERM, FIRST DEPARTMENT

2008 NY Slip Op 51309U;
Order (Joan M. Kenney, J.), entered January 2, 2008, reversed, with $ 10 costs, motion denied and defendant's counterclaim reinstated.

Defendant's counterclaim alleging legal malpractice is not time-barred. Pursuant to CPLR 203(d), a counterclaim is deemed interposed for Statute of Limitations purposes as of the time the summons is filed (see Proskauer Rose Goetz & Mendelsohn v. Munao, 270 AD2d 150, 704 N.Y.S.2d 590 [2000]; McLaughlin, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C203:9) Plaintiff's summons was filed in June 1990. Inasmuch as defendant's legal malpractice counterclaim was governed by the then applicable six-year Statute of Limitations and accrued no earlier than 1986, it was "not barred at the time the claims asserted in the complaint were interposed" in 1990 (CPLR 203[d]).

This Constitutes the Decision and Order of the Court. "

Full post as published by New York Attorney Malpractice Blog on July 21, 2008 (boomark / email).