Legal Malpractice

It Takes a Lot for a Judiciary Law 487 Claim in Legal Malpractice

By (Andrew Lavoott Bluestone)

Here is a case in which plaintiff's attorneys sued for $1 Million Dollars [this reminds one of Austin Powers] and eventually won a verdict in excess of $ 2 Million on a personal injury case.  The question is whether they were negligent in setting the ad damnun clause and whether the defense attorneys might be held in Judiciary Law 487 claims for failing to disclose excess insurance.

Ambra v Awad ;2009 NY Slip Op 03853 ; Decided on May 12, 2009; Appellate Division, Second Department tells us that plaintiff's attorney might be held in, but that notice problems to the carrier will rule out a series of causes of action, and will let the defense attorney out of the case.
 

"In his amended complaint against SA & M, the plaintiff alleges four causes of action: SA & M negligently and incorrectly told him that Makko lacked sufficient assets to pay the full jury verdict; SA & M should have moved to increase the ad damnum prior to trial, but negligently failed to do so, so the plaintiff was required "to settle his claim for less than fifty percent of the amount of the jury award;" SA & M's failure to file an appropriate motion to increase the ad damnum resulted in a one million dollar cap on the plaintiff's recovery and the loss of Makko's excess insurance coverage; and SA & M coerced him into accepting Makko's one million dollar settlement offer. SA & M then impleaded HFD & M, alleging that it violated Judiciary Law * 487 and fraudulently concealed from SA & M the fact that Makko had excess insurance coverage, and that SA & M was entitled to both indemnification and contribution.

Dismissal of the second cause of action, as well as the remaining portion of the third cause of action, was also warranted, albeit for reasons other than those articulated by the Supreme Court. The plaintiff cannot establish that Bellantone's failure to file a pretrial motion to increase the ad damnum amount resulted in a one million dollar cap on his recovery and forced him to settle with Makko under unfavorable terms. Due to a supplemental bill of particulars filed in October 2001, HFD & M was aware long before trial that the plaintiff's damages could far exceed the one million dollar amount in the ad damnum clause. Under the peculiar circumstances of this case, Makko would not have been prejudiced by a post-trial increase in the ad damnum amount, so SA & M's post-trial motion to increase the ad damnum amount would likely have been granted if the case had not settled before the motion could be decided (see Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23).

Although the court correctly noted that issues of fact exist as to what Feretic knew about the excess insurance policy and when he knew it, these issues are not relevant to the question of whether contribution is warranted. Nothing in the record suggests that HFD & M's actions caused or exacerbated in part the injuries alleged in the plaintiff's remaining causes of action (see Nassau Roofing & Sheet Metal Co. v Facilities Dev. Corp., 71 NY2d 599, 60

Full post as published by New York Attorney Malpractice Blog on May 19, 2009 (boomark / email).