Legal Malpractice

A Triple-Header in Legal Malpractice and Judiciary Law 487

By (Andrew Lavoott Bluestone)

Dupree v. Voorhees, 2009 NY Slip Op 09183 ;Decided on December 8, 2009 ;Appellate Division, Second Department  is an example of the breathtaking reversals that might happen on appeal, and how the law can "change" in the period between dismissal and the appeal.  Today we will look at the legal malpractice part of this case which is more traditional; on Monday we will look at the Judiciary Law 487 reversal, and how it kept two attorneys in the case.
In this matrimonial case, it appears that some very strange motion practice took place.  we;ll quote:

"Specifically, the record reveals that the attorneys representing the plaintiff's former husband in a matrimonial action failed to provide advance notice to the appellant, the plaintiff's [*2]former counsel in the matrimonial action and a solo practitioner, of a closing scheduled for November 21, 2003, for the refinancing of the former marital residence. Rather, on the date in question, the appellant, who was in Suffolk County serving jury duty, received a voice mail message from one of those attorneys, Karyn A. Villar, advising him of a purportedly "emergency" application being made that day before Justice John C. Bivona in the Supreme Court, Suffolk County (hereinafter the motion court). Shortly thereafter, during a break, the appellant returned Villar's call and was informed by Villar that the closing would be taking place later that day. The application made by order to show cause ostensibly was to allow the former husband to effectuate the refinancing transaction.

Although Villar advised the motion court that the appellant was unavailable, and although the order to show cause had a return date of November 25, 2003, four days later, the order to show cause was signed by the motion court on November 21, 2003. The order to show cause granted the ultimate relief requested therein, essentially appointing the former husband receiver of the plaintiff's interest in the marital residence without her consent. The former husband, after the closing, failed to comply with an earlier stipulation in the matrimonial action requiring him to buy out his wife's interest in the marital property for the sum of $95,000.

Notably, a copy of the order to show cause signed by the motion court was faxed to the appellant's office at 3:54 P.M., approximately one hour after the time the closing was scheduled to occur. The appellant submitted opposition papers on the return date but, necessarily, after the closing had occurred. Under these circumstances, the appellant demonstrated the absence of any negligence on his part.

Result?  Case dismissed and affirmed against this attorney.  But, the case continues against two others under Judiciary Law 487.  Tomorrow, we'll see how a motion to renew worked and how the Court of Appeals decision in Amalfitano v. Rosenberg alerted Supreme Court that a lot had changed.

Full post as published by New York Attorney Malpractice Blog on December 11, 2009 (boomark / email).