Legal Malpractice

Not Legal Malpractice, and Not Defamation

By (Andrew Lavoott Bluestone)

Legal Malpractice litigation succeed es earlier litigation, by its very definition, and all know that "but for" refers to the first case.  An unfortunate corollary to this definitional fact is that clients and some attorneys turn to legal malpractice litigation as a default mode of trying to rectify all wrongs, whether caused by the attorney or not. 

In this duo of related cases, we see the skein running from the earlier cases, through a second series of cases, through legal malpractice all the way to defamation for the way the attorneys defended themselves.Adamski v Lama ;2008 NY Slip Op 09308 Decided on November 26, 2008
Appellate Division, Third Department  and 2008 NY Slip Op 09312.
 

"As Supreme Court concluded, defendants' allegedly libelous statements in affidavits and a letter are absolutely privileged inasmuch as they were made in the course of a judicial proceeding and pertinent to that litigation (see Martirano v Frost, 25 NY2d 505, 507-508 [1969]; Cavallaro v Pozzi, 28 AD3d 1075, 1077 [2006]; Black v Green Harbour Homeowners' Assn., Inc., 19 AD3d 962, 963 [2005]; Grasso v Mathew, 164 AD2d 476, 479 [1991], lv dismissed 77 NY2d 940 [1991], lv denied 78 NY2d 855 [1991]). With respect to plaintiff's remaining claims, he has failed to state a cause of action for fraud, and no private right of action exists for perjury, tampering with documents, obstruction of justice, and frivolous pleadings (see [*2]Newin Corp. v Hartford Acc. & Indem. Co., 37 NY2d 211, 217 [1975]"

"Plaintiff has commenced a series of lawsuits against his former employer, nonparty Schuyler Hospital, as well as both his former counsel and counsel for various prior defendants. In this action, his fifth lawsuit, plaintiff asserts a variety of claims, including legal malpractice and breach of fiduciary duty, against defendants, his counsel in the third and fourth lawsuits, in which he claimed that the various defendants therein had violated the settlement agreement between plaintiff and Schuyler Hospital that resolved plaintiff's first action [FN1]. Upon this appeal, [*2]plaintiff challenges an order of Supreme Court granting defendants' motion for partial summary judgment, dismissing all causes of action except plaintiff's conversion claim and granting defendants' motion to strike plaintiff's demand for punitive damages."

"Inasmuch as plaintiff's submissions in response failed to raise any issues of fact regarding negligence, proximate cause or damages, Supreme Court properly dismissed plaintiff's legal malpractice cause of action (see Guiles v Simser, 35 AD3d 1054, 1055-1056 [2006]; Antokol & Coffin v Myers, 30 AD3d 843, 845-846 [2006]; Lichtenstein v Barenbaum, 23 AD3d 440, 440-441 [2005]; Brodeur v Hayes, 18 AD3d 979, 980-981 [2005], lv dismissed and denied 5 NY3d 871 [2005]). Finally, plaintiff's breach of fiduciary duty claims are, essentially, claims of legal malpractice and, thus, they fail for the reasons detailed above (see Guiles v Simser, 35 AD3d at 1055; Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271-272 [2004]). "
 

Full post as published by New York Attorney Malpractice Blog on December 31, 1969 (boomark / email).