FKB's Melissa Manning and Mike Furman win appeal in the Second Department on behalf of Westchester County law firm, unanimously affirming the decision by Justice Nicholas Colabella to dismiss the legal malpractice action in its entirety, with costs. 9/29/09

September 29, 2009: FKB's client, a Westchester law firm, represented the plaintiff, a doctor, who allegedly had a physical altercation with the superintendent in the building where plaintiff maintained a medical office over use of a parking space. Following the altercation, plaintiff was arrested by the Yonkers Police Department for assault. Plaintiff retained the co-defendant lawyer to represent him in connection with the criminal charges, which resulted in a plea bargain in which the assault charge was withdrawn, and an agreed-dismissal ("ACD") of the harassment charge.

Following the criminal action, the superintendent sued plaintiff for civil assault. Plaintiff retained FKB's client to defend him in the civil action and to file certain counterclaims against the superintendent. Plaintiff also retained FKB's client to draft and file a pro se Summons with Notice for plaintiff, alleging causes of action for false arrest, defamation and intentional infliction of emotional distress against numerous municipal and law enforement agencies, and the superintendent. Lastly, plaintiff requested that FKB's client investigate and research other possible lawsuits arising out of his purported false arrest.

Plaintiff claimed that FKB's client failed to "defend [plaintiff] in the civil action, and to prosecute all civil actions then available to him following the false arrest and [the superintendent's] malicious prosecution." Further, plaintiff alleges that FKB's client "coerced" him into accepting a "pitifully inadequate settlement." As a result of FKB's client purported negligence, plaintiff claims that he was caused to suffer damages, inter alia, "as measured by the loss of his good and valuable civil causes of action."

On February 28, 2008, the Honorable Nicholas Colabella, J.S.C., granted FKB's pre-answer CPLR § 3211 motion in its entirety on the grounds that plaintiff failed to state a valid a cause of action against FKB's client. Plaintiff appealed Justice Colabella's Order. The crux of plaintiff's appeal was that Justice Colabella erred because plaintiff had viable causes of action against his former landlord and the landlord's attorney, which were lost as a result of FKB's client's failure to join them as defendants and assert counterclaims against them in plaintiff's underlying civil suit.

Since plaintiff's arguments on the basis of "res judiciata" and the "relation-back doctrine" were raised for the first time on appeal, FKB argued that: (1) the Appellate Division should decline to review said arguments as it was improperly raised for the first time on appeal; and (2) even if the Second Department were to consider plaintiff's argument it nevertheless lacks merit since in order to establish the applicability of the relation-back doctrine, a plaintiff must show, inter alia, that a defendant to be added as a new party is united in interest with the original defendant, which was not the case in the underlying personal injury action. FKB further argued that FKB's client was retained in a limited capacity, and that plaintiff cannot, as a matter of law, unilaterally expand FKB's client's representation beyond the scope of the executed retainer agreement.

In the decision, the Second Department agreed with FKB's arguments with respect to plaintiff's improperly raised theories and gave great weight to the explicit terms of the retainer agreement finding that "[t]he retainer agreement prepared by the defendant law firm, and executed by the plaintiff, recited that the firm's representation of the plaintiff was limited."

FKB's Melissa Manning and Mike Furman represented the Westchester law firm in this appeal, which is reported at 2009 WL 2884736 (N.Y.A.D. 2 Dept.).

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