Legal Malpractice

Are More Motions to Dismiss Filed in Legal Malpractice Cases?

By (Andrew Lavoott Bluestone)

We do not have firm statistics in this area, but from a general overview of litigation it seems to us that a higher percentage of legal malpractice cases are subject to motions to dismiss under CPLR 3211(a)(1) than are other types of cases.  We have thought about why this might be.  A benign explanation is that since there is always a "case within a case", there is a greater source of dispositive documents which might early derail a case.  A less benign explanation is that the defense bar realizes that the bench does not hold legal malpractice cases in high regard [laws written to legislate behavior of attorneys by attorneys, judged by attorneys], or that plaintiff's bar is a largely disparate group of practitioners.

In any event, this is a recent case from the Fourth Department on the issue: Younis v Martin
2009 NY Slip Op 02118 ;Decided on March 20, 2009 ; Appellate Division, Fourth Department.
 

"In determining such a motion, "[t]he facts pleaded are to be presumed to be true and are to be accorded every favorable inference, although . . . factual claims flatly contradicted by the record are not entitled to any such consideration" (Gershon v Goldberg, 30 AD3d 372, 373; see Parola, Gross & Marino, P.C. v Susskind, 43 AD3d 1020, 1021-1022). Although we agree with defendant that some factual claims by plaintiff in the complaint were contradicted by evidentiary material that he appended to the complaint, the record establishes that the court's decision to deny the motion was not predicated upon those factual claims. "
 

Full post as published by New York Attorney Malpractice Blog on March 26, 2009 (boomark / email).