Legal Malpractice

Winning the Battle, Losing the War in Legal Malpractice

By (Andrew Lavoott Bluestone)

 Refund Plus Life Insurance policies were purchased by Long Island attorneys including Daniel Buttafuoco.  When Boston Life refused to refund the premiums litigation erupted.  In the Virgin Islands, the insurance company asked for a declaratory judgment that it did not have to refund the premiums.  Things spiraled downward, and ended in EDNY legal malpractice litigation.  From the decision in Law Practice Management Consultants LLC v. M & A Counselors & Fiduciaries LLC, 08-CV-4557; Decided: February 28, 2009; District Judge Arthur D. Spatt;U.S. DISTRICT COURT. EASTERN DISTRICT OF NEW YORK
 

"In 2006, Boston Life terminated the Policies and allegedly refused to return the premiums paid by the Plaintiffs. In March of 2006, Boston Life commenced a suit in the British Virgin Islands ("the BVI Litigation") seeking a declaratory judgment that it properly terminated the Policies and was not required to repay any of the premiums. The Plaintiffs in the present action were among the 63 defendants ("the BVI defendants") that Boston Life named in the BVI Litigation. In April of 2006, the BVI defendants retained Hoilman, a member of M & A Counselors & Fiduciaries, to represent them in the BVI litigation.
 

Buttafuoco's deposition was scheduled for October 13, 2008 at his office in Woodbury, New York. The night before the deposition, Hoilman met with Buttafuoco at his office to prepare him for his testimony. The Plaintiffs allege that during this meeting, Hoilman advised Buttafuoco not to provide certain information in his deposition. On the day of the deposition, to Hoilman's surprise, the Plaintiffs discharged him and his local counsel from representing them in the Miami Litigation. At the conclusion of the deposition, Hoilman was served with the summons and complaint that initiated the instant lawsuit.

The complaint, filed in New York State Supreme Court, Nassau County, alleged that Hoilman committed legal malpractice by failing to timely file the opposition papers in the BVI Litigation. The essence of the Plaintiffs' legal malpractice claim is that although the British Virgin Islands Court of Appeal ultimately permitted them to file their opposition papers, the delay caused by the missed filing deadline prevented them from any meaningful recovery because Boston Life went into liquidation while the appeal was pending. In other words, the Plaintiffs contend that if Hoilman did not missing the filing deadline, they would have been able to obtain a judgment against Boston Life before it went into liquidation.

On November 11, 2008, the case was removed to this Court. Shortly thereafter Hoilman and his firm moved to dismiss the Plaintiffs' cause of action for malpractice contending, among other things, that they have failed to state a claim under Fed. R. Civ. P. 12(b)(6). The Court finds that the Plaintiffs have failed to state a claim for legal malpractice, and therefore, it need not address the issue of whether personal jurisdiction is lacking in this case."
 

Full post as published by New York Attorney Malpractice Blog on March 05, 2009 (boomark / email).