Monday, March 28, 2011

Not The Attorney's Fault

The New York Appellate Division for the First Judicial Department affirmed the dismissal of a legal malpractice action:

The documentary evidence conclusively disposed of plaintiff's legal malpractice claims. The hearing court found that plaintiff's disobedience of the so-ordered stipulation directing her to transfer certain custodial accounts to her husband's attorney to be placed in escrow or immediately liquidate the accounts and transfer the proceeds was willful. In light of such willful conduct, the motion court properly found that plaintiff — not her attorneys — was the proximate cause of her contempt adjudication and the resulting incarceration. We note that letters from the husband's attorneys, which were provided to plaintiff by defendants, unambiguously indicated that plaintiff's compliance with the so-ordered stipulation was a condition precedent to further settlement discussions. Defendants' alleged failure to correct the purge amount set forth in the contempt order to conform to the stipulation was also not a proximate cause of plaintiff's incarceration from December 23 through December 26, since the stipulation identified the amounts in the subject accounts as "approximate current balance[s]," thus recognizing that their values were subject to market fluctuation. In addition, the slightly higher purge amount in the contempt order conformed to plaintiff's own authorization to transfer the accounts dated just the previous day. Defendants' alleged failures to obtain and provide discovery and with respect to support could have been remedied by successor counsel; moreover, any attempt at modification of the pendente lite award would have had limited prospects of success. (citations omitted)

(Mike Frisch)

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