Legal Malpractice

Legal Malpractice as a Defensive Reflex

By (Andrew Lavoott Bluestone)

Legal malpractice litigation is often viewed with a gimlet eye. This is a 50's expression meaning a sharp or knowing look.  Courts often believe that legal malpractice counterclaims are merely a method of trying not to pay legal fees.  As has been observed elsewhere, attorney fees are dear to the heart of attorneys.

Butterman & Kahn, LLP v Yildiz;  2010 NY Slip Op 33440(U);  December 13, 2010;  Sup Ct, NY County;  Judge: Judith J. Gische seems to be an example of this phenomenon.  "An account stated represents an agreement between the parties reflecting mounts due on prior transactions. Jim-Mar Cwp. v. Aquatic Constr., 195 A.D.2d 868 (3d dept. 1993), Iv. denied 82 N.Y.2d 660 (1993). The receipt and retention of an account, without objection, within a reasonable period of time, gives rise to an account stated entitling the moving party to summary judgment in its favor. Morrison Cohen Siflger & Weinstein. LLP v. Ackerman, 280 A.D.2d 355 (Iat Dept. 2001). Where either no account
has been presented or there is any dispute regarding the correctness of the account, the cause of action fails. M & A Const, CQrD. v. McTaque, 21 A.D.3d 610 (3rd Dept. 2005). plaintiff, but has provided no proof other than her own affidavit.

Here, plaintiff has established a prima facie cause of action for account stated against the defendant. Plaintiff has established that it sent detailed billing statements to the defendant reflecting the legal serviced provided and the fees and disbursements incurred on the defendant‘s behalf. Plaintiff has also established that the defendant made partial payments on many of these billing statements, and otherwise retained same without objection. Here, the defendant's retention of the bills and her forty-six partial payments give rise to an account stated (see Morrison Cohen v, Wate rs, 13 AD3d 51 [Ist Dept 20041; Morrison Cohen Sinqer 8 Weinge in, LI P v. Ackerman, 280 AD2d 355 [lst Dept 2001J;s ee also Moses & Sinqer LLP v. S&S Machinew Corp., 251 AD2d 271 [ lst Dept 1998]),

The defendant has failed to raise a triable issue of fact on the issue of timely objection. Her argument that Attorney Butterman's statement on the record at a court Page6of 12
[* 7] proceeding that the defendant owed $40,000 is rejected because is not relevant to issue
of whether the defendant timely objected to the bills she indisputably received. It is undisputed that the defendant received each and every one of the bills that the plaintiff sent. Moreover, Attorney Butterman's misrepresentation of the amount that the defendant owed to plaintiff has been explained by plaintiff as a reasonable error. Attorney Butterman supposedly confused the amount the defendant owed to his firm with the total child support arrears owed by Mr. Yildiz at that point. *
Indeed, the defendant made another partial payment to the plaintiff after the September 2009 court appearance where Attorney Butterman misspoke. Even this partial payment was a recognition of the defendant's indebtedness to the plaintiff (Boulanqer, Hicks. $ tein & Churchill, P,C, v. Jac obs, 235 AD2d 353 [lst Dept 19971). The defendant's claims that Attorney Butterman 'lied' to the court or downplayed the amount the defendant owed to his firm is a red herring.  Any claims that the defendant made timely objections in writing are unsubstantiated."

Full post as published by New York Attorney Malpractice Blog on December 23, 2010 (boomark / email).