Legal Malpractice

A Pair of Cases: Are These Legal Malpractice?

By (Andrew Lavoott Bluestone)

This morning's Law Journal revealed a pair of cases in which just about the same thing happened.  Attorneys acted badly, and the client suffers.  Clients depend on their attorneys, and can do just about nothing without the attorney acting as intermediary.  Clients, too, suffer when their attorney is punished by the court.

In Pacheco v Zenobio ;2009 NY Slip Op 50882(U) ; Decided on May 8, 2009 ;Supreme Court, Kings County ;Battaglia, J. we see that "In short, Plaintiffs' counsel persisted in frivolous motion practice after having been clearly and specifically warned by the Court that a further motion on the same grounds would be sanctionable.

Plaintiffs filed a Note of Issue and Certificate of Readiness on April 25, 2008. At that time, a significant amount of disclosure was outstanding, including the injured Plaintiff's medical examinations and all disclosure with respect to the third-party actions. While it appeared that some items of disclosure were completed after the filing of the Note of Issue, including the [*2]injured Plaintiff's medical examinations, it was undisputed that no disclosure had been conducted with respect to the third-party actions, and that defendant Michael Zenobio's examination before trial had not been held." 

After one losing motion to restore the case to the trial calendar, and then a second, the court wrote: "In the event that Plaintiffs file a disclosure motion without attaching a proper good-faith affirmation or prematurely file a motion involving disclosure, counsel may be subject to sanctions pursuant to 22 NYCRR 130-1.1 or costs pursuant to CPLR 8303(a)."

Perhaps needless to state, the Court's warnings were not heeded.

Plaintiffs again moved for an order "restoring the plaintiffs [sic] matter to the active trail [sic] calender [sic] by restoring the plaintiffs(s) [sic] Calender [sic] number." Incredibly, the motion was served on the same day as the compliance conference, February 13, 2009. The cross-motion for costs and sanctions followed. "  Plaintiff suffers sanctions and a long delay in the case.

In Jameson v. City of New York  1:07-01312 [subscription] we see worse.  As Mark Fass of the NYLJ reports: "A federal judge has thrown out a lawsuit against New York City filed by a man who was shot several times by his wife, a city police officer, with her city-issued gun.

Eastern District Judge Roslynn R. Mauskopf dismissed the case with prejudice, citing the failure of the plaintiff's attorney, Michael P. Mays, to comply with a series of court orders demanding his "meaningful participation" in the case.

Judge Mauskopf also ordered Mr. Mays to pay $1,000 in unpaid contempt fines that have accrued over the last month.  Plaintiff has had a bad few years already.

"In April 2006, the plaintiff, 43-year-old retired police officer Todd Jamison, was sitting in his parked Mercedes-Benz in East New York, Brooklyn, when his estranged wife, Officer Alison Jamison, pulled up along side him in a rental car, shot him several times, then sped to the next corner. She then made a u-turn, fired several more shots and sped off.

Ms. Jamison was arrested later that day when she returned the car to a rental agency at Newark International Airport.

Mr. Jamison survived the shooting, though he was hospitalized for several months. According to subsequent news reports, Ms. Jamison shot her husband in a pique of anger over his many affairs. The tabloids soon dubbed Mr. Jamison "Officer Romeo" and the "Casanova Cop."

Ms. Jamison was convicted of attempted murder and sentenced to up to seven years in prison."

Now, plaintiff's case is dismissed, and his attorney is unlikely to have a very good excuse.

Is this legal malpractice?



 

Full post as published by New York Attorney Malpractice Blog on May 15, 2009 (boomark / email).