Legal Malpractice

Losing Custody and Losing a Malpractice Case

By (Andrew Lavoott Bluestone)

In this Albany County case, via the Third Department, Bixby v Somerville ;2009 NY Slip Op 03821
Decided on May 14, 2009   we see the unraveling of a marriage, and the eventual custody dispute, now played out in legal malpractice.  Father fights with mother over sole custody, ending in a shared custody decision, later modified by the Appellate Division to joint custody.  Unhappy, plaintiff sues his law firm, both in his name and in the name of his daughter, and disputes fees paid and fees still owing.  Plaintiff loses on the judgment rule and plaintiff's daughter loses on the privity rule. 

 "Here, plaintiffs cite extensive proof, including the transcript of the Family Court custody hearing, to demonstrate that their conduct was a reasonable exercise of professional judgment. In the alternative, plaintiffs assert that any shortcomings in their representation did not proximately cause defendant's alleged damages because he would not have been successful on the merits of the underlying proceeding. In our view, plaintiffs amply met their initial burden of establishing a prima facie case for summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). "

Full post as published by New York Attorney Malpractice Blog on May 22, 2009 (boomark / email).