Legal Malpractice

CPLR 3211 and 3212 Motions in Legal Malpractice

By (Andrew Lavoott Bluestone)

Plaintiff unsuccessfully defended a CPLR 3211 motion brought by attorney group number 1 in a legal malpractice case.  Plaintiff was represented by group 1 and then mid-stream terminated them and moved to attorney group 2, who successfully settled the case.  In KWANGJIN SONG, PLAINTIFF-APPELLANT, v WOODS OVIATT GILMAN LLP AND ROBERT S. ATTARDO, DEFENDANTS-RESPONDENTS.  2008 NY Slip Op 7312; 2008SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT.

On Appeal, the Appellate Division, 4th Department affirmed, but on different reasoning.  "We affirm, although our reasoning differs from that of the court with respect to the underlying basis for the dismissal of the complaint. We conclude that defendants were entitled to summary judgment dismissing the complaint pursuant to CPLR 3212 rather than dismissal of the complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7). Defendants met their burden by establishing as a matter of law that they, inter alia, were not negligent and that plaintiff sustained no damages, two essential elements of a legal malpractice cause of action (see Oot v Arno, 275 AD2d 1023, 713 N.Y.S.2d 382), and plaintiff failed to raise a triable issue of fact (see Ginther v Heim [appeal No. 1], AD3d , 2008 NY Slip Op 7430, 2008 N.Y. App. Div. LEXIS 7303 [Oct. 3, 2008]; Oot, 275 AD2d at 1024). With respect to the first counterclaim, defendants submitted evidence establishing the reasonable value of their services (see generally Phillips Nizer Benjamin Krim & Ballon v Chu, 240 AD2d 231, 659 N.Y.S.2d 4), and plaintiff failed to raise a triable issue of fact with respect to defendants' entitlement to the fees sought (see generally DiPlacidi v Walsh, 243 AD2d 335, 664 N.Y.S.2d 537; [**3] Pirro & Monsell v Freddolino, 204 AD2d 613, 614 N.Y.S.2d 232, lv dismissed 85 N.Y.2d 903, 650 N.E.2d 1319, 627 N.Y.S.2d 318). "
 

Full post as published by New York Attorney Malpractice Blog on October 07, 2008 (boomark / email).