FKB’s A. Michael Furman and Jason A. Kayne Obtain Dismissal of Legal Malpractice Claim Related to Underlying Appellate Litigation of Judgment Award for Insurance Claim


FKB’s A. Michael Furman and Jason A. Kayne obtained a favorable pre-answer dismissal of a legal malpractice claim on July 5, 2018.

In the underlying appellate litigation, plaintiff sought to appeal a judgment awarded in his favor for medical liens and out-of-pocket expenses in connection with an insurance claim arising from an auto accident, seeking an additional $50,000 in benefits. In the instant complaint, plaintiff claimed that attorneys in the underlying action failed to properly prosecute the appeal, alleging, inter alia, that the firm negligently failed to properly address certain arguments on appeal, request oral argument, or to move for reargument of the appeal. Plaintiff asserted causes of action for legal malpractice, breach of fiduciary duty, promissory estoppel, and conversion.

FKB argued in its motion that plaintiff’s claim was barred by the statute of limitations, using plaintiff’s Arizona residence to apply the Arizona two-year statute of limitations via New York’s CPLR § 202 borrowing statute, and that plaintiff had failed to state a claim in any event for any of his causes of action.

In opposition, plaintiff attempted to defeat the statute of limitations argument by claiming he was in actuality a New York resident, thus warranting application of the New York statute of limitations, and alternatively that the time did not start to run on his causes of action until he lost in the Court of Appeals.

On July 5, 2018, Justice Frank P. Nervo granted FKB’s pre-answer motion to dismiss on all grounds – that plaintiff’s claims were time-barred, that plaintiff had failed to state a claim for all causes of action, and further that plaintiff lacked standing to pursue the claims for breach of fiduciary duty, promissory estoppel, and conversion, as they were asserted on behalf of a non-party entity. Justice Nervo agreed with all of FKB’s arguments, holding that the documentary evidence introduced by FKB conclusively established plaintiff’s Arizona residency, thus rendering plaintiff’s claims time-barred pursuant to Arizona law, and that even had the action been timely commenced, the plaintiff had alleged no facts showing departure from the attorney standard of care.

If you have any questions about this decision, or the defense of attorneys in general, please contact A. Michael Furman or Jason A. Kayne.


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