Legal Malpractice

Turnabout in Legal Malpractice Defense Motion

By (Andrew Lavoott Bluestone)

One of the more interesting memes in legal malpractice is the inevitable turnabout that is played out by the target attorney.  Once the advocate for plaintiff, the target attorney immediately turns around to show the holes in, and deficiencies of plaintiff's position.  The attorney, chameleonlike, turns into plaintiff's earlier opponent; at least the target attorney takes on their coloration.

As an example, Maiolini v McAdams & Fallon, P.C.   2009 NY Slip Op 02755   Decided on April 7,  2009    Appellate Division, Second Department  is instructive.  Plaintiff suffered from TMJ and filed, successfully, for short-term disability insurance payments.  Insurer then denied long term payments, and plaintiff had an opportunity to appeal.  No appeal was undertaken by the retainer [target] attorney.  Was there malpractice in failing to file the appeal?
 

The Appellate Division said no.  "The defendant established its entitlement to judgment as a matter of law by demonstrating that the plaintiff would not have succeeded on a second administrative appeal, even if one had been timely filed (see Alvarez v Prospect Hosp., 68 NY2d 320; Campbell v Tamsen, 37 AD3d 636, 636-637; Flinn v Aab, 167 AD2d 507). In opposition, the plaintiff failed to raise a triable issue of fact (see Teodorescu v Resnick & Binder, P.C., 55 AD3d at 721-722; Campbell v Tamsen, 37 AD3d at 637). Accordingly, the Supreme Court should have awarded summary judgment to the defendant dismissing the legal malpractice cause of action. "  Our bet is that the target attorney simply used the insurance companies medical report, and that plaintiff did not have a better report to show.  It's just a bet, though,  The decision does not describe the actual papers before it.

Full post as published by New York Attorney Malpractice Blog on April 16, 2009 (boomark / email).