The case arose from an underlying automobile accident action that proceeded to a summary jury trial pursuant to a high-low agreement. Following trial, the jury found the underlying defendant driver 0% negligent, resulting in Plaintiff recovering the “low” amount under the agreement. Plaintiff subsequently commenced a malpractice action asserting claims for legal malpractice, fraud, breach of fiduciary duty, violations of Judiciary Law § 487, and equitable accounting arising from the handling of the underlying trial and settlement.

On behalf of FKB’s client, Andrew and Blaise moved to dismiss the Complaint pursuant to Rules 12(b)(5) and 12(b)(6), arguing, among other things, that Plaintiff failed to properly effectuate service under the Federal Rules of Civil Procedure and that the Complaint improperly attempted to transform disagreements over litigation strategy and trial decisions into fraud and attorney deceit claims.

Although the Court did not reach the issue on the merits, the defense also raised significant service and statute of limitations arguments, as the action was commenced only days before the limitations period expired and service was not properly effectuated. The dismissal places Defendants in a strong procedural position with respect to any future attempt to recommence the action, including any attempted reliance on CPLR 205(a).

For more information please contact Andrew Jones or Blaise Muriel.