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New York Commercial Division Case Compendium A Searchable Database of Court Decisions Issued by New York’s Commercial Division

Category Archives: Malpractice

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Law Firm’s Failure to File Notice of Appeal in Coverage Action Not Malpractice Where Insured’s Underlying Losses Were Not Covered under Policy

Posted in Declaratory Judgment, Healthcare, Insurance, Legal, Malpractice, Oing, Jeffrey K., Unjust Enrichment

In a decision dated December 30, 2015, the Appellate Division, First Department affirmed an order from the New York County Commercial Division granting defendant-law firm’s motion to dismiss plaintiff-health care provider’s malpractice action.

Commercial Division Rules Judgment as a Matter of Law Appropriate on Some, But Not All Causes of Action

Posted in Breach of Contract, Estoppel, Legal, Malpractice, Pines, Emily, Statute of Limitations, Suffolk, Tortious Interference with Business Relations, Unjust Enrichment

  In an August 18, 2015 Commercial Division decision by Justice Pines, the court granted in part the defendants’ motion for judgment as a matter of law dismissing various causes of action asserted against them.

First Department Affirms Denial of Proskauer Rose’s Motion to Dismiss Malpractice Claim Arising From Allegedly Deficient Tax Advice

Posted in 1st Dept, Legal, Malpractice, Motion to Dismiss, Statute of Limitations

In a decision dated July 2, 2015, the Appellate Division, First Department affirmed an order from the New York County Commercial Division denying the defendant Proskauer Rose’s motion to dismiss the first cause of action, which alleged legal malpractice against the law firm.

Accountant Providing Non-Auditing Tax Services Still Has Professional and Fiduciary Duties to Inform Taxpayer of Questionable Financial Practices

Posted in Accounting, Banking, Breach of Contract, Breach of Fiduciary Duty, Demarest, Carolyn E., Fraud, Kings, Malpractice, Motion to Dismiss, Negligence

In a July 21, 2015, Kings County Commercial Division decision by Justice Demarest, the court denied in part and granted in part defendants’ motion to dismiss plaintiff’s amended complaint under CPLR 3211 (a) (1) and (7).

Plaintiff Escapes Three-Year Limitations Period for Accounting Malpractice by Alleging Intentional Misconduct in Support of Claims for Breach of Contract and Fraud

Posted in Accounting, Albany, Breach of Contract, Breach of Fiduciary Duty, Fraud, Malpractice, Motion to Dismiss, Platkin, Richard, Statute of Limitations, Uncategorized, Unjust Enrichment

In a March 6, 2015, Albany County Commercial Division decision by Justice Platkin, the court granted in part and denied in part defendant-accounting firm’s (the “Firm’s”) motion to dismiss plaintiff-New York Worker’s Compensation Board’s (the “Board’s”) action alleging inadequate and improper accounting services.

Pension Fund Auditor May Have Had Duty to Investigate and Verify Fund’s Investments in Madoff-Related Entities

Posted in Accounting, Ambiguity, Breach of Contract, Breach of Fiduciary Duty, Erie, Estoppel, Fraud, Malpractice, Misrepresentation, Summary Judgment, Walker, Timothy J.

In an August 19, 2014, Erie County Commercial Division decision by Justice Walker, the court denied in part and granted in part defendant-accounting firm’s motion for summary judgment dismissing plaintiff-pension fund’s action for audit deficiencies and other misconduct.

Plaintiff Awarded Summary Judgment on Legal Malpractice Claim Against Cadwalader

Posted in Discovery, Legal Malpractice, Malpractice, Negligence, New York, Schweitzer, Melvin L., Statute of Limitations, Summary Judgment

In an August 27, 2013 Commercial Division decision by Justice Schweitzer, the court granted Plaintiff Red Zone’s motion for summary judgment on claims for legal malpractice, and denied Defendant Cadwalader’s cross-motion for summary judgment on the same claim.  Cadwalader advised Red Zone concerning Red Zone’s dealings with investment bank UBS regarding a potential acquisition of… Continue Reading

Commercial Division Upholds in Part and Dismisses in Part Legal Malpractice Claims Against Kenyon & Kenyon For the Filing of Patent Applications that Were Ultimately Rejected by Foreign Patent Offices

Posted in Erie, Malpractice, Statute of Limitations, Summary Judgment, Walker, Timothy J., Wholesale

In a June 17, 2014 decision by Justice Walker, the Commercial Division considered cross-motions for summary judgment in the context of legal malpractice claims asserted by Rich Products Corp. (“Rich”), a major food supplier, against its longtime patent counsel Kenyon & Kenyon, LLP (“KK”).  In short, Rich alleged that KK committed malpractice in connection with… Continue Reading

Claims against Greenberg Traurig by Former Client for Breach of Fiduciary Duty, Fraud, and Violation of Judiciary Law § 487 Dismissed

Posted in Breach of Fiduciary Duty, CPLR 3211, Fraud, Legal, Malpractice, Misrepresentation, Motion to Dismiss, New York, Ramos, Charles E.

In a June 27, 2013 Commercial Division decision by Justice Ramos, the court granted the defendant Greenberg Traurig, LLP’s (“GT”) motion to dismiss various causes of action. This action arose out of an intra-familial dispute between three sisters, the plaintiff and her two defendant sisters, who were formerly part owners of a family-run jewelry business… Continue Reading

Deceased Lawyer’s Estate Granted Summary Judgment in Suit to Recover on Loans Made to Former Client

Posted in Breach of Fiduciary Duty, CPLR 3211, Demarest, Carolyn E., Kings, Legal, Malpractice, Motion to Dismiss, Statute of Limitations, Summary Judgment, Summary Judgment in lieu of Complaint

In a May 27, 2014 Commercial Division decision by Justice Demarest, the court granted the plaintiff’s renewed motion for summary judgment and granted the plaintiff’s motion to dismiss the defendants’ affirmative defenses and counterclaims. The action, originally commenced as a motion for summary judgment in lieu of complaint, arose from the defendants’ alleged failure to… Continue Reading

Court Denies Motion for Summary Judgment in Lieu of Complaint Based on Breach of Fiduciary Duty Defense Raised in Opposition

Posted in Breach of Contract, Breach of Fiduciary Duty, CPLR 3213, Demarest, Carolyn E., Kings, Legal, Legal Malpractice, Promissory Note, Real estate, Statute of Limitations, Summary Judgment, Summary Judgment in lieu of Complaint

In an October 29, 2014, Kings County Commercial Division decision by Justice Demarest, the court denied plaintiff’s motion for summary judgment in lieu of complaint based on an alleged default on a mortgage note.  Plaintiff-attorney made three loans to defendant-client in connection with the purchase and financing of a building.  The court denied plaintiff’s motion… Continue Reading

Lessons in Discovery—from Directions Not To Answer in Depositions to Document Production: Freidman v Fayenson

Posted in Bransten, Eileen, Depositions, Discovery, Malpractice, Motion to Compel Discovery, New York, Real estate

In a December 4, 2013 decision by Justice Bransten, the Commercial Division was faced with myriad discovery disputes, ranging from the refusal to produce an insurance policy to directions not to answer questions posed at a deposition.  In a 29-page decision, Justice Bransten carefully navigated and decided each of the discovery issues presented, giving clear… Continue Reading

Property Owner’s Negligence and Malpractice Claims Against Site Plan Preparers Dismissed on Summary Judgment, are Time-Barred

Posted in Construction, Discovery, Estoppel, Fraud, Kings, Malpractice, Misrepresentation, Motion to Dismiss, Negligence, Real estate, Schmidt, David I., Statute of Limitations, Summary Judgment, Uncategorized

In a January 24, 2014 decision by Justice Schmidt, the court granted in part defendants’ motion for summary judgment dismissing the complaint, which concerned the preparation and approval of a site plan for the development of a vacant property in Staten Island.  In September 2004, plaintiff Willis Ave. Development LLC purchased and closed on a property… Continue Reading

Plaintiff’s Attorney Disqualified in Brooklyn Condominium Construction Dispute Based on Prior Representation of Defendant

Posted in Breach of Contract, Breach of Fiduciary Duty, Demarest, Carolyn E., Kings, Legal, Malpractice, Order to Show Cause

In a November 7, 2013 decision by Justice Demarest, the court granted the defendants’ motion, brought by order to show cause, to disqualify the plaintiff’s attorney, Steven D. Sladkus (“Sladkus”), and his law firm Wolf Haldenstein Adler & Herz LLP (“WHAH”) from representing the plaintiff, and to permanently enjoin WHAH from revealing the defendants’ confidences… Continue Reading

Individual Corporate Officer Fails to Allege Facts Sufficient for “Near Privity” on Legal Malpractice Claim against Corporation’s Lawyers: Candela Entertainment, Inc. v Davis & Gilbert, LLP

Posted in Bransten, Eileen, Breach of Contract, Breach of Fiduciary Duty, CPLR 3211, Documentary Evidence, Entertainment, Legal Malpractice, Malpractice, Misrepresentation, Motion to Dismiss, New York

In a May 16, 2013, decision by Justice Bransten, the court granted defendant-law firm’s motion to dismiss plaintiff-film production company’s legal malpractice action in its entirety.  The production company hired the law firm in connection with the financing and transfer of ownership of a dance documentary film from a non-profit organization owned by a co-president… Continue Reading

Court Dismisses Claim for Abuse of Process, Allows Claim for Legal Malpractice in Action arising from Mortgage Foreclosure: Ferreira v Citiwide Real Estate & Mgt. Co.

Posted in Attorneys' Fees, Declaratory Judgment, Fraud, Kitzes, Orin R., Legal, Legal Malpractice, Malpractice, Queens, Real estate, Summary Judgment

In a May 8, 2013 decision by Justice Kitzes, the court granted the defendant Deutsche Bank’s motion for summary judgment dismissing the complaint, denied defendant Solda’s motion for summary judgment, and cancelled a notice of pendency against the East Elmhurst property (the “Property”) at issue, which was owned by Ferria. Deutsche Bank was previously awarded… Continue Reading

Condo’s Claims Against Architect and Sponsor Fail: Board of Managers of NV 101 N 5th Street Condo. V. Morton et al.

Posted in Breach of Contract, Construction, Fraud, Fraudulent Inducement, Kings, Malpractice, Misrepresentation, Motion to Dismiss, Schmidt, David I., Statute of Limitations

In an April 12, 2013 decision by Justice Schmidt, the court granted an architect’s and a sponsor’s separate motions to dismiss claims brought against them by a condominium (the “Condo”) arising from alleged construction defects in the construction of a new luxury residential condominium building.  The court declined to dismiss the Condo’s claims against the… Continue Reading

Failure to Offer Expert Proof Explaining Standard of Professional Care and Skill Sinks Malpractice Claim Before Reaching Jury: Schlenker v Cascino

Posted in Albany, Expert Disclosure, Legal Malpractice, Malpractice, Platkin, Richard, Summary Judgment

In an April 12, 2013, decision by Justice Plotkin, the court granted plaintiff’s motion for a directed verdict dismissing defendants’ counterclaim for legal malpractice.  Defendants’ claim arose out of plaintiff’s prior representation of defendants at a trial of an enforcement action brought by a town against defendants for depositing waste and operating a commercial recycling… Continue Reading

Shareholders of S Corporation Cannot Maintain Legal Malpractice Claim Against Corporation’s Attorneys Due to Lack of Privity: Leggiadro, Ltd. v Winston & Strawn, L.L.P.

Posted in Kornreich, Shirley Werner, Legal, Malpractice, Misrepresentation, Motion to Dismiss, New York

In a March 1, 2013 decision by Justice Kornreich, the court granted the defendant law firm’s motion to dismiss the  legal malpractice claim brought by two shareholders of an S Corporation which alleged that the firm failed to advise them of the tax consequences when it represented the S Corporation in a buy-out agreement, causing… Continue Reading

Judicial-Proceedings Privilege Inapplicable in the Face of Allegations that Prior Litigation Was Commenced to Harrass and Disparage: Hadar v Pierce

Posted in Aiding and Abetting, Bransten, Eileen, Breach of Fiduciary Duty, CPLR 3211, Discovery, Failure to State a Claim, Fraud, Legal Malpractice, Malpractice, Motion to Dismiss, New York, Real estate, Tortious Interference with Business Relations

In a January 4, 2013, decision by Justice Bransten, the court denied defendants’ motion to dismiss under CPLR 3211 [a] [7] plaintiff’s causes of action for defamation, legal malpractice, breach of fiduciary duty, malicious prosecution, civil conspiracy, and other business torts.  Plaintiff-real estate developer sued his father and his father’s lawyers, alleging that they undertook… Continue Reading

Rejection of Continuous Representation Doctrine Leads to Dismissal of Time-Barred Claims Against Accountants: Irvin v. Jones

Posted in Breach of Fiduciary Duty, Fiduciary Duty, Fraud, Malpractice, Motion to Dismiss, Statute of Limitations, Suffolk, Summary Judgment, Tolling, Whelan, Thomas

In a December 13, 2012 decision by Justice Whelan, the Court granted the accountant defendants’ motion for partial dismissal of the complaint based upon statute of limitations.  In so doing, the court rejected the application of the continuous representation doctrine to the facts at hand.  The action involved a family limited partnership, formed to manage… Continue Reading

Unfortunate Result of Litigation Leads to a Finding of Malpractice: Board of Managers of Bridge Tower Place Condominium v Starr Assoc., LLP

Posted in Legal, Legal Malpractice, Malpractice, New York, Real estate, Schweitzer, Melvin L., Summary Judgment

In a December 12, 2012 decision by Justice Schweitzer, the court granted the plaintiff condominium board’s motion for summary judgment on its complaint which alleged that the Starr Associates, LLP and two of its attorneys committed legal malpractice when they represented the board in a lawsuit brought by one of the unit owners.  In that… Continue Reading

Claims for Legal Malpractice and Breach of Fiduciary Duty Barred by the Statute of Limitations: Elmakies v Sunshine

Posted in Breach of Fiduciary Duty, DeStefano, Vito M., Fraud, Legal, Legal Malpractice, Malpractice, Motion to Dismiss, Nassau, Real estate, Statute of Limitations

In a September 24, 2012 decision by Justice DeStefano, the court granted the defendants’ motion to dismiss the complaint, which included causes of action for legal malpractice and breach of fiduciary. The defendants, law firms and their named partners, were retained by the plaintiff with respect to investments in real and personal property that the… Continue Reading