Legal Malpractice

New Life in a 700 Year Old Legal Malpractice Statute

By (Andrew Lavoott Bluestone)

Judiciary Law sec. 487 is perhaps our oldest statute, certainly the oldest statute in existence concerning legal malpractice.  Recently the Court of Appeals decided Amalfitano v. Rosenberg.  Now we are seeing a resurgence of interest, and in this particular case a court reconsidering its earlier decision to dismiss a Judiciary Law 487 case based upon the Court of Appeals Decision.  Amalfitano has two very important holdings: 

    a.  Plaintiff did not have to bring the 487 claim in the underlying action;

    b.  Attorney fees paid to combat the deceit are sufficient damages for a 487 claim.

In  Dupree v Voorhees , 2009 NY Slip Op 29121   Decided on March 23, 2009   Supreme Court, Suffolk County Palmieri, J. Here Supreme Court reconsidered its earlier decision:

"However, the Court's analysis of the Judiciary Law cause of action was based not on the merits of the facts alleged in support of such a claim, but rather on Appellate Division cases decided before the recent Court of Appeals determination in Amalfitano v Rosenberg, supra. A reading of that case indicates that, contrary to what this Court concluded in the May 1 decision, it should not be fatal to a plaintiff that the misrepresentation(s) upon which the Judiciary Law claim is based became known during the course of the underlying litigation, and that attorneys' fees alone may be considered damages proximately caused by the wrongful conduct.

Therefore, reading the plaintiff's complaint and submissions in the present action favorably to the plaintiff, as it must on a motion to dismiss (Guggenheimer v Ginzbrug, supra), it is apparent that the plaintiff here is not attempting to collaterally attack a judgment in a concluded action. As limited by this Court's determination regarding the absence of any other potential damages, the plaintiff here is seeking to recover the additional legal fees made necessary in her matrimonial action because of the alleged misrepresentation by Villar. "

Full post as published by New York Attorney Malpractice Blog on April 02, 2009 (boomark / email).