Thursday, September 17, 2015

Standing to bring a legal malpractice claim.

Practice point:  The Appellate Division affirmed the denial of defendant-lawyer's motion for summary  judgment. The defendant was retained to create a trust and fund it with several insurance policies. The plaintiffs allege that the defendant allowed one of the policies to lapse due to nonpayment, and they commenced this legal malpractice action to recover the policy's face value. The defendant moved to dismiss pursuant to CPLR 3211(a), asserting, among other things, that the trustee plaintiffs lack legal standing.

The Appellate Division determined that the motion court correctly found that the trustee plaintiffs stand in a position analogous to that of an estate's personal representative, and, therefore, have the requisite privity, or a relationship sufficiently approaching privity, to maintain the action.

Student note:  Plaintiffs also raised a triable issue of fact as to the applicability of the continuous representation doctrine sufficient to toll the statute of limitations, pursuant to CPLR 203[a] and 214[6].

Case:  Ianiro v. Bachman, NY Slip Op 06709 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  Contracts and ambiguity.