FKB’s Andrew S. Kowlowitz and Aaron M. Barham obtained a favorable pre-answer dismissal of a legal malpractice case on October 30, 2018, and thereafter successfully opposed plaintiff’s motion to vacate the dismissal order.

In the underlying EPLI action, plaintiff alleged that he was wrongfully terminated due to his national origin, and as retaliation for complaining about allegedly harassing comments.  In the instant complaint, plaintiff alleged that his attorneys in the wrongful termination suit were negligent in drafting opposition papers to the underlying motion for summary judgment, and in making the strategic decision to submit the appeal to the Second Circuit without oral argument.  On October 30, 2017, Justice Richard F. Braun (retired) granted FKB’s pre-answer motion to dismiss based upon expiration of the statute of limitations, collateral estoppel, failure to plead proximate causation, and the Professional Judgment Rule, without opposition. 

Thereafter, the plaintiff moved to vacate the court’s October 30, 2017 dismissal order and to restore the case to the calendar.  In opposition, FKB argued that its motion to dismiss was granted on the merits, but that nevertheless the plaintiff could not provide a reasonable excuse for failing to timely oppose the motion.  FKB further argued that plaintiff’s deficiently pled claims were barred by the statute of limitations and collateral estoppel.  On May 3, 2018, Justice W. Franc Perry issued a decision denying plaintiff’s motion to vacate the dismissal order, agreeing with FKB’s arguments that plaintiff had failed to establish an excusable reason for failing to timely oppose defendants’ motion to dismiss, and that his legal malpractice claims lacked merit. 

If you have any questions about this decision, or the defense of attorneys in general, please contact Andrew S. Kowlowitz or Aaron M. Barham.