• Legal Malpractice Claims for Failing to Enter Default Judgment Survive Motion to Dismiss: Smith v. Kaplan Belsky Ross Bartell, LLP
  • June 24, 2011 | Author: James M. Wicks
  • Law Firm: Farrell Fritz, P.C. - Uniondale Office
  • In a May18, 2011 decision by Justice Bucaria, the Court considered various motions and cross-motions in a legal malpractice action. The case arose out of an earlier case plaintiffs brought against an accounting firm for negligent misrepresentation. Defendant accounting firm defaulted, but plaintiffs’ law firm (defendants in the current action) failed to enter a default judgment for over three years. Ultimately, the Appellate Division reversed the order of the trial court judge, and dismissed the complaint as abandoned pursuant to CPLR 3215(c). Plaintiffs thereafter brought the instant action for legal malpractice. Defendants moved to dismiss.

    Considering the allegations as true for purposes of the motion, the court granted the motion to dismiss of one of the individual attorneys, on the ground that one could not infer that he was involved in the failure to move for a default judgment. The court denied the motion to dismiss as to the remaining defendants.

    The court denied plaintiffs’ cross-motion for summary judgment on the legal malpractice claim, concluding that plaintiffs failed to sustain their burden to show the merits of their underlying claim.  However, the court did grant plaintiffs leave to replead to add more detail of plaintiffs’ reliance on the financial statements.

    Finally, the court denied plaintiffs’ motion to compel production of documents relating to other complaints or disputes he law firm had with other clients. The court reasoned that, “[i]n view of the relatively routine nature of an application for a default judgment, it is unclear how evidence of other derelictions on Jacobs’ part is material or necessary to the prosecution of the malpractice action.”

    Smith v. Kaplan Belsky Ross Bartell, LLP, Sup Ct, Nassau County, May 18, 2011, Bucaria, J, Index No. 9132/10.