FKB’s client is a personal injury attorney with a solo practice. This matter arose from the attorney’s representation of a four (4) year-old minor who fell out of an apartment window without window guards and suffered irreversible brain damage. FKB’s client prosecuted an action against the plaintiff’s landlord through trial, and ultimately secured a $2 million judgment in 2000. However, the landlord was uninsured, and while the trial was pending, the landlord sold his only asset, real estate (unbeknownst to any of the other parties or the court). Following the completion of the trial, the landlord vanished, leaving the plaintiff with an uncollectable $2 million judgment.

FKB’s client arranged for the retention of a reputable collections attorney to pursue Plaintiff’s judgment debtor. Despite the collections attorney’s efforts, he was not able to locate the landlord or any of his assets, and there was no basis for a fraudulent conveyance action against the purchaser of the landlord’s real estate.

The Plaintiff (through his guardian-mother) sued his former attorney, claiming that he should have timely obtained a pre-judgment order of attachment from the Court before the landlord sold his assets. The Plaintiff alleged that “but for” FKB’s client’s failure to obtain a pre-judgment order of attachment, the Plaintiff would have recovered his judgment from the landlord prior to the dissipation of his assets.

FKB filed a pre-answer motion to dismiss the complaint on the grounds that: (1) the attorney did not deviate from the applicable standard of care by failing to obtain a pre-judgment attachment; and (2) the attorney’s failure to secure an order of attachment was not the proximate cause of the Plaintiff’s alleged damages. Specifically, FKB argued that it would not have been appropriate and/or legally possible for FKB’s client to have obtained a pre-judgment order of attachment on the facts available at the time. Following submission of FKB’s motion papers, the Court converted the motion to one for summary judgment and ordered the submission of additional briefing papers. Thereafter, following several rounds of oral argument, the Court granted the motion for summary judgment in its entirety and dismissed the case against FKB’s client. In doing so, the Court adopted FKB’s argument that it would not have been appropriate and/or legally possible for the attorney to have obtained a pre-judgment order of attachment on the facts available at the time.

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