Legal Malpractice

Further Refinements in Judiciary Law 487 and Legal Malpractice

By (Andrew Lavoott Bluestone)

Judiciary Law 487 may be the oldest statute in American (and in Anglo-American) jurisprudence.  it dates from the first Statute of Westminster, adopted in England in 1275.  Even almost 800 years later refinements continue to be made.

in Barrows v Alexander 2010 NY Slip Op 08506 ; Decided on November 19, 2010 ; Appellate Division, Fourth Department  we see plaintiff attempting to apply Judiciary Law 487 against at attorney, but not one who was working as an attorney at the time.  However, in this case they wish to sue the defendant for acts in the legal malpractice case rather than for acts which led up to the legal malpractice case. This is denied by the Court.
 

"We conclude that the court properly denied the motion inasmuch as the proposed amendment is patently lacking in merit (see generally Anderson v Nottingham Vil. Homeowner's Assn., Inc., 37 AD3d 1195, 1198, rearg granted 41 AD3d 1324). Section 487 applies only "to an attorney acting in his or her capacity as an attorney, not to a party who is represented by counsel and who, incidentally, is an attorney" (Oakes v Muka, 56 AD3d 1057, 1058), and here defendant was not acting in his capacity as an attorney in the context of this legal malpractice action (see Gelmin v Quicke, 224 AD2d 481, 482-483). Plaintiffs' reliance on Kurman v Schnapp (73 AD3d 435) is misplaced because the record in that case establishes that the defendant was acting in his capacity as an attorney when he engaged in the alleged [*2]deceitful conduct.

Finally, the contention of plaintiffs that the court erred in denying their motion for summary judgment is not properly before us because plaintiffs failed to take an appeal from the order denying that motion. "

Full post as published by New York Attorney Malpractice Blog on December 02, 2010 (boomark / email).