Friday, January 8, 2021

The Evidence May Be Lean

A portion of a claim brought against Hunton & Williams was resuscitated by the New York Appellate Division for the First Judicial Department

In light of the basis for the court's ruling in the underlying action, plaintiff's allegations of malpractice all fall under either the attorney judgment rule or the case within a case doctrine (see Rosner v Paley, 65 NY2d 736, 738 [1985]; Warshaw Burstein Cohen Schlesinger & Kuh, LLP v Longmire, 106 AD3d 536 [1st Dept 2013], lv denied 33 NY3d 914 [2019], cert denied US , 140 S Ct 2510 [2020]).

With regard to the breach of contract claims, contrary to plaintiff's assertion, the retainer agreement does not promise a particular result (see Winegrad v Jacobs, 171 AD2d 525 [1st Dept 1991]). The failure of a particular partner to attend depositions cannot be tied to any particular outcome of the case, and damages from that alleged breach are purely speculative.

However, plaintiff's allegation, in its president's affidavit, that he expressly instructed defendant to place liens on the judgment debtor's assets, states a claim for breach of contract. While the failure to identify when or to whom the instruction was given may raise issues of credibility with regard to the allegation, on a motion addressed to the pleading, this was sufficient.

(Mike Frisch)

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Is the cite in there somewhere?

Posted by: Dennis O'Dea | Jan 9, 2021 3:08:37 PM

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