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NY: Perfected pro-se appeal results in dismissal of malpractice action

Capogrosso v. Landsman, 83 A.D.3d 638, 919 N.Y.S.2d 899 (2011)

NY: malpractice claim by client against attorney

Student Contributor: Alexis Trezza

Facts: Defendant  Attorney  represented plaintiff former client in a prior action, which resulted in a judgment against client. Attorney filed an appeal on her behalf and then withdrew as counsel in the action. Plaintiff proceeded pro se and perfected her appeal, which resulted in a ruling against her by the Appellate Division. She then brought this legal malpractice action against her former Attorney because she claims that his failure to turn over the case file from the prior action prevented her from perfecting her appeal. Attorney then  moved to dismiss the complaint pursuant to CPLR 3211(a)(1), asserting that the plaintiff had perfected her appeal and lost. He also asserted that he had a retaining lien on the case file in the prior action because Plaintiff  owed him substantial fees. The motion to dismiss was granted, and Plaintiff appeals.

Issue: Was Attorney’s  motion to dismiss pursuant to CPLR 3211(a) properly granted?

Ruling: Yes. The documentary evidence submitted by the defendant “utterly refuted the plaintiff’s factual allegations” and conclusively established a defense to the asserted claims as a matter of law.

Lesson: If you proceed on an appeal pro se and owe your attorney fees from his/her representation in the prior action, he can refuse to turn over the case file that is necessary for your appeal and not be held liable for malpractice.

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Posted in: New York