Legal Malpractice

If there are no damages, it is not Legal Malpractice

By (Andrew Lavoott Bluestone)

It's often surprising, when reading a newly published case, at the wide difference between plaintiff's take on the case, and the defense presented by his former attorneys.  The attorneys, who just a short period earlier had been plaintiff's paragons, now have a diametrically opposed viewpoint.  Sometimes it may be justified.  Here is a newly published case in which plaintiff went into bankruptcy, and suspended his mortgage and other payments on a house.  Years went by, and inter alia the house became more valuable.  Then he was forced to pay the old arrears. 

John Vlahakis, appellant, v Mendelson & Associates, et al., respondents. (Index No. 13210/04)2007-06336  SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT2008 NY Slip Op 6703;September 2, 2008, Decided

"The plaintiff alleged that he sustained damages because the defendants, who were his attorneys in a bankruptcy proceeding, advised him that he would not have to pay the arrears which he owed on the mortgage on his residence. The plaintiff further alleged that this advice constituted legal malpractice, and that as a result, he was required to pay interest and late charges on the arrears, as well as attorneys' fees."

"Here, the defendants met their initial burden on their motion for summary judgment by demonstrating, prima facie, that the plaintiff did not sustain any damages as a result of their actions. Specifically, the defendants established that their efforts on the plaintiff's behalf resulted in his continuing to reside in his house for approximately seven years, during which [*2] time the value of his house increased significantly. Moreover, the defendants established that during that period the plaintiff was not paying his mortgage, taxes, or insurance. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the sum he eventually paid to the bank exceeded the amount that he saved by not paying his mortgage, taxes, and insurance for approximately seven years. The plaintiff's mere assertion, which was unsupported by competent evidence, that he had sustained monetary damages, was insufficient to raise a triable issue of fact."

Full post as published by New York Attorney Malpractice Blog on September 10, 2008 (boomark / email).