Legal Malpractice

Are Legal Malpractice Cases Disfavored by the Courts?

By (Andrew Lavoott Bluestone)

We've discussed whether courts disfavor law suits against attorneys in the past.  It sometimes appears that Courts are more willing to grant CPLR 3211 (a)(1) motions for attorneys than for the general run of cases.  While all agree that the "case within a case" presents unique barriers to litigation, one must remember the human factor too.  After all, the rules of legal malpractice are written by attorneys, concerning attorneys and administered by attorneys. 

In any event, here is a case in which the Appellate Division reversed Supreme Court's dismissal of a legal malpractice complaint, sua sponte, when it was unwarranted, Rotering v Satz ;2010 NY Slip Op 02120 ; Decided on March 16, 2010 ; Appellate Division, Second Department .  "The Supreme Court, sua sponte, directed dismissal of the complaint on the basis, inter alia, that the plaintiff failed to file proof of service of the summons and complaint, citing CPLR 306-b. Pursuant to that statute, a court may only dismiss a complaint for failure to effect timely service of process "upon motion," not on its own initiative (see CPLR 306-b). The defendants never moved to dismiss the complaint (see CPLR 3211[a][8]; [e]). Thus, the Supreme Court erred in doing so sua sponte (see Daniels v King Chicken & Stuff, Inc., 35 AD3d 345). "

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