Legal Malpractice

Sometimes It Just Wasn't the Attorney in Legal Malpractice

By (Andrew Lavoott Bluestone)

One theme that we have considered over the years is whether attorneys get preferential treatment in legal malpractice litigation.  Are motions to dismiss granted on too little evidence?  Do the attorneys get the benefit of the doubt?  Is the fact that legal malpractice law is written mostly by attorneys, is decided upon by attorneys and affects attorneys sometimes dispositive of the outcome?

Well, all that aside, sometimes the client just can't help themselves.  Here is an example from today's NYLJ:  Uzamere v. Uzamere;  KINGS COUNTY;  Justice Schack;

"Pro se plaintiff CHERYL D. UZAMERE (UZAMERE) moves by order to show cause for: summary judgment, pursuant to CPLR Rule 3212; and, upon the failure of all defendants to answer, pursuant to CPLR §3215, for a default judgment of $100,000,000.00 plus interest against defendants SENATOR EHIGIE EDOBOR UZAMERE a/k/a "GODWIN E. UZAMERE" (SENATOR UZAMERE), ALLEN E. KAYE, P.C., ALLEN E. KAYE, ESQ., HARVEY SHAPIRO, ESQ. (SHAPIRO), BERNARD J. ROSTANSKI (ROSTANSKI), and JACK GLADSTEIN, ESQ. (GLADSTEIN), in an action arising from defendants' alleged misdeeds and misconduct related to plaintiff UZAMERE's 1979 marriage and subsequent abandonment by SENATOR UZAMERE. Defendants ALLEN E. KAYE, P.C. and ALLEN E. KAYE, ESQ. will be collectively referred to as "KAYE."

Plaintiff UZAMERE, in her verified complaint, asserts that: defendant SENATOR UZAMERE retained KAYE in 1977 to apply for lawful permanent residence in the United States; defendants KAYE and SHAPIRO, an associate of defendant KAYE, suborned defendant SENATOR UZAMERE's perjury by having him swear to false personal information on an immigration form, notarized in December 1979 by defendant ROSTANSKI; and, in 2003, defendant GLADSTEIN, defendant SENATOR UZAMERE's divorce attorney, sent correspondence to plaintiff UZAMERE, using the alleged fraudulent name of "GODWIN UZAMERE," duping plaintiff UZAMERE into commencing a divorce action against defendant SENATOR UZAMERE. Further, plaintiff UZAMERE alleges, among other things, that defendants' actions resulted in her: inability to obtain the use of her husband's proper name; becoming an unwitting participant in "an act of green card marriage fraud for permanent residence" [¶20 of verified complaint]; financial deprivation; and, a victim of defendants' fraudulent acts.

In three separate cross-motions, the first by defendants KAYE and SHAPIRO, the second by defendant GLADSTEIN, and the third by defendant ROSTANSKI, they all move to dismiss plaintiff UZAMERE's complaint, pursuant to various subsections of CPLR Rule 3211. Defendants claim that plaintiff UZAMERE's claims are barred: by res judicata and/or collateral estoppel, pursuant to CPLR Rule 3211 (a) (5); by lack of personal jurisdiction because of improper service of the instant verified complaint, pursuant to CPLR Rule 3211 (a) (8); by failure to state a cause of action upon which relief can be granted, pursuant to CPLR Rule 3211 (a) (7); and, by the applicable statute of limitation, pursuant to CPLR Rule 3211 (a) (5).

This Court finds that plaintiff UZAMERE failed to properly serve defendants and obtain personal jurisdiction over defendants. More important, this is not the first time that she has brought an action against these defendants based upon the same series of transactions and occurrences. In 2008, plaintiff UZAMERE commenced a previous action in Kings County Supreme Court against defendants but failed to proceed. Moreover, plaintiff UZAMERE failed to prevail on the merits in 2008 and 2009 in two separate Untied States District Court actions against these and other defendants based upon the same transactions and occurrences. The 2009 federal court action was dismissed by the United States District Court for the Southern District of New York. This was unanimously affirmed by the Second Circuit Court of Appeals and the United States Supreme Court denied a writ of certiorari.

Therefore, plaintiff UZAMERE's order to show cause for summary judgment and a default judgment against defendants is denied for plaintiff's failure to obtain personal jurisdiction and res judicata. Defendants' three cross-motions to dismiss the complaint are granted. Plaintiff's verified complaint is dismissed with prejudice. Further, plaintiff UZAMERE is enjoined from commencing future litigation in the New York State Unified Court System against defendants SENATOR UZAMERE, KAYE, SHAPIRO, ROSTANSKI and GLADSTEIN without prior approval of the appropriate Administrative Justice or Judge.

Background
 

Full post as published by New York Attorney Malpractice Blog on July 20, 2010 (boomark / email).