Legal Malpractice

Peeling Away the Layers of Legal Malpractice

By (Andrew Lavoott Bluestone)

The Fourth Department handed down four legal malpractice decisions this week, which is surely a record. Three were decisions without reasoning.  The fourth, KEITH LONG, , v CELLINO & BARNES, P.C., THE BARNES FIRM, P.C., STEPHEN E. BARNES, ESQ., RICHARD J. BARNES, ESQ., ROSS M. CELLINO, JR., ESQ., 1620 CA 07-01737;SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FOURTH DEPARTMENT;2009 NY Slip Op 910; 2009 N.Y. App. Div. LEXIS 968
 

permits a look at how the Appellate Division peels away the layers of a case.  The facts seem simple.  Plaintiff was a construction worker who fell from a height while working.  Defendants were his attorneys, and the appellate decision says that they sued the wrong parties.  Plaintiff had three causes of action, negligence, contract, fraud and he asked for punitive damages.

"Contrary to plaintiff's contention, Supreme Court properly granted those parts of the first cross motion of defendants seeking summary judgment dismissing the breach of contract and fraud causes of action against them as duplicative of the malpractice cause of action. The breach of contract cause of action arises from the same facts and alleges the same damages as the malpractice cause of action (see InKine Pharm. Co. v Coleman, 305 AD2d 151, 152, 759 N.Y.S.2d 62). With respect to the fraud cause of action, defendants met their initial burden by establishing that plaintiff failed to allege fraud "premised upon one or more affirmative, intentional misrepresentations--that is, something more egregious than mere [*2] concealment or failure to disclose [defendants'] own malpractice' . . . --which have caused additional damages, separate and distinct from those generated by the alleged malpractice" (White of Lake George v Bell, 251 AD2d 777, 778, 674 N.Y.S.2d 162, [**3] appeal dismissed 92 NY2d 947, 704 N.E.2d 230, 681 N.Y.S.2d 477; see Tasseff v Nussbaumer & Clarke, 298 AD2d 877, 878, 747 N.Y.S.2d 621). Plaintiff failed to raise a triable issue of fact in opposition to those parts of the first cross motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562, 404 N.E.2d 718, 427 N.Y.S.2d 595).
Contrary to the contention of defendants on their [**4] cross appeal, the court properly denied that part of the first cross motion seeking summary judgment dismissing the malpractice cause of action. Defendants' own submissions raise triable issues of fact whether plaintiff would have succeeded in the underlying action absent defendants' negligence (see generally Phillips v Moran & Kufta, P.C., 53 AD3d 1044, 862 N.Y.S.2d 875).
 

Full post as published by New York Attorney Malpractice Blog on February 10, 2009 (boomark / email).