Furman Kornfeld & Brennan LLP's Andew S. Kowlowitz and Eric D. Mercurio obtain dismissal of a legal malpractice action in Kings County. 12/22/2011

Hon. Debra Silber of Kings County Supreme Court issued an Order granting FKB's motion to dismiss a legal malpractice action against FKB's client, a boutique law firm in Brooklyn, New York (the "Law Firm"). This legal malpractice action arose from the Law Firm's representation of a former client and his business partner in a lawsuit commenced by a real estate broker arising out of a commission dispute.

During the course of an underlying real estate transaction, Plaintiff (the Law Firm's former client) and his former business partner entered into an agreement whereby the later agreed to defend and indemnify the Plaintiff for any claims arising out of a breach of the real estate brokerage agreement. When the real estate brokerage agreement was breached, the real estate broker sued both Plaintiff and his former business partner. The Law Firm represented both defendants in that litigation. The real estate broker prevailed in the litigation, and eventually obtained a judgment.

In this legal malpractice action, the Plaintiff alleged that the Law Firm engaged in an impermissible conflict of interest when it represented both the Plaintiff and his former business partner in the underlying litigation. After limited discovery, FKB filed a motion to dismiss. FKB was able to demonstrate not only that it was not an impermissible conflict of interest for the Law Firm to represent both parties in the underlying litigation, but also that the Plaintiff was indeed provided a defense and indemnification from the co-defendant (former business partner), pursuant to their agreement, and therefore did not sustain actual damages.

In light of the foregoing, FKB successfully moved to dismiss Plaintiff's action for failure to state a cause of action. FKB's motion to dismiss was granted in its entirety and Plaintiff's Complaint was dismissed with prejudice.

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