Legal Malpractice

Conditional Tenders and Strategic Decisions

By (Andrew Lavoott Bluestone)

In this case, Tanger v Ferrer ,2008 NY Slip Op 01866 ,Decided on March 4, 2008 ,Appellate Division, First Department . the following mistakes led Supreme Court to grant summary judgment to plaintiff: "This Court found that the tenders were conditional and therefore did not act to stop the accrual of interest on the landlord's claim (Solow Mgt. Corp. v Tanger, 1 AD3d 165, 166 [2003]). In addition, in the underlying action, defendants filed untimely post-trial briefs, which were not considered by the court, and prepared, but did not file, an appellate reply brief, contrary to their written acknowledgment to plaintiff. "  Good enough for plaintiff's summary judgment motion?  No!

"In any event, by including a "reservation of rights" in the tender notice, defendants imposed a condition on the tender, by seeking to allow plaintiff's defenses and counterclaims to survive, contrary to a satisfaction of the landlord's claim in that action (see CPLR 3219). Having [*2]chosen the litigation strategy of employing a CPLR 3219 tender, defendants were obligated to execute the strategy in compliance with the statute. This does not necessarily constitute malpractice in the context of the ongoing dispute between Solow and plaintiff which involved six separate and ongoing lawsuits arising out of a rent strike. An explication of this strategy necessarily requires trial as it is a contested issue unresolved by discovery."

Full post as published by New York Attorney Malpractice Blog on March 11, 2008 (boomark / email).