Legal Malpractice

One Problem after Another in Legal Malpractice

By (Andrew Lavoott Bluestone)

When one starts to read a case, and the plaintiff is pro-se, look out for common mistakes within.  In Williams v Bushman ;2010 NY Slip Op 00840 ;Decided on February 2, 2010 ;Appellate Division, Second Department  we see at least two.  Here is the story line:
 

"The plaintiff, Nathaniel N. Williams, retained the law firm of Goldberg, Scudieri & Block, P.C. (hereinafter the Goldberg firm), to defend him in a mortgage foreclosure action. Franklin moved for summary judgment on the complaint, submitting in support of its motion the executed mortgage and evidence of Williams's default. In opposition, Mark K. Lindenberg, an attorney associated with the Goldberg firm, submitted an affidavit from Williams asserting, inter alia, that Williams had tendered a notice rescinding the mortgage to Franklin's predecessor in interest, Interstate Resource Corporation (hereinafter Interstate). Williams did not have a mail receipt or any other proof that the rescission notice had been sent to Interstate. Williams also asserted that Interstate had used unspecified "high pressure tactics" to induce him "to execute a high rate note and mortgage." In July 2000 the Supreme Court, Kings County, granted Franklin's motion for summary judgment. 

Problem 1

Williams subsequently retained the defendant, David M. Bushman, to prosecute an action in the Supreme Court, Rockland County, to recover damages for legal malpractice against Lindenberg and the Goldberg firm. In July 2004 the Supreme Court granted the motion of Lindenberg and the Goldberg [*2]firm to dismiss the complaint as time-barred. 

Problem 2

Williams then commenced the instant action alleging legal malpractice against Bushman on the ground that he failed to commence the legal malpractice action against Lindenberg and the Goldberg firm within the statute of limitations. Bushman moved for summary judgment dismissing the complaint, arguing that Williams could not show that he would have been successful in the underlying legal malpractice action but for Bushman's alleged error, because he could not show that Lindenberg committed malpractice or that any actions or omissions on Lindenberg's part were a proximate cause of the unfavorable resolution of the foreclosure proceeding. In an order dated May 21, 2008, the Supreme Court denied Bushman's motion for summary judgment.

Following the denial of summary judgment, Bushman moved to enforce a settlement agreement, which he alleged had been approved by Williams. In an order dated April 17, 2009, the Supreme Court denied Bushman's motion, holding that, although a settlement was apparently reached in principle, "it was never finalized by the execution of the settlement documents."  Plaintiff resisted taking a settlement from defendant.
 

Problem 3

 Through, inter alia, the affidavit of an attorney who specialized in real estate law, Bushman made a prima facie showing that Lindenberg's alleged omissions did not constitute a failure to exercise the skill and knowledge commonly possessed by an attorney, and were not the cause of Franklin's motion for summary judgment being granted. That motion was granted because Franklin submitted validly executed mortgage documents and evidence of Williams's default, and Williams could not raise a triable issue of fact (see Wells Fargo Bank, N.A. v Webster, 61 AD3d 856).

Plaintiff's complaint dismissed.

Full post as published by New York Attorney Malpractice Blog on February 16, 2010 (boomark / email).