Legal Malpractice

Motions to Dismiss and Legal Malpractice

By (Andrew Lavoott Bluestone)

The relationship between a motion to dismiss [CPLR 3211]. a request to amend the pleadings, and dismissal on the merits is wrought with both emotion yet is based upon logic.  No author of pleadings appreciates a motion to dismiss.  The motion generally brays that there is "no merit", the pleading is "frivolous", is badly written, etc.

Yet, the rule of logic generally prevails.  A pleading in legal malpractice  must adequately plead that the defendants "failed to exercise that degree of care, still, and diligence commonly possessed by a member of the legal community," and that their negligence was "a proximate cause of damages" (DeNatale v Santagelo, 65 AD3d 1006, 1007), and,is sufficient to state a cause of action to recover damages for legal malpractice.

"[M]otions for leave to amend pleadings should be freely granted, absent prejudice or surprise directly resulting from the delay in seeking leave, unless the proposed amendment is palpably insufficient or patently devoid of merit" (Aurora Loan Servs., LLC v Thomas, 70 AD3d 986, 987; see CPLR 3025[b]; Tyson v Tower Ins. Co. of N.Y., 68 AD3d 977, 979; Peerless Ins. Co. v Micro Fibertek, Inc., 67 AD3d 978, 979-980).

And so it went in Feldman v Finkelstein & Partners, LLP ,2010 NY Slip Op 06517 ,Decided on August 31, 2010 , Appellate Division, Second Department , a legal malpractice case.  "Contrary to the defendants' contention, there is no indication that the Supreme Court considered evidentiary submissions and, thus, the issue to be determined at this stage is not whether the plaintiffs have a cause of action, but only whether they have stated one (see Guggenheimer v Ginzburg, 43 NY2d 268, 275; Sokol v Leader, 74 AD3d at 1181-1182). Accordingly, the Supreme Court improperly granted that branch of the defendants' motion which was to dismiss the first cause of action. "
 

Full post as published by New York Attorney Malpractice Blog on September 02, 2010 (boomark / email).