November 1, 2024

On October 31, 2024, Schlam Stone & Dolan attorneys Eni Mihilli, Jeffrey Eilender, and Jessica Caterina won an appeal affirming the motion court’s denial of Plaintiff’s motion to dismiss Defendant’s malpractice counterclaim.  In Ingram Yuzek Gainen Carroll & Bertolotti, LLP vs. James McCullar, Index. No. 655386/21, Case No. 2023-02984, the Appellate Division, First Department, unanimously affirmed the Motion Court decision, with costs.  Eni Mihilli argued for Defendant in front of the First Department.

Defendant alleged that Plaintiff law firm negligently caused the commencement of a guardianship proceeding over his longtime partner whom he hoped to marry, resulting in an onerous guardianship.  The First Department held that the Motion Court correctly denied Plaintiff’s motion to dismiss the counterclaim pursuant to CPLR 3211(a)(7) because Defendant pleaded with sufficient detail his counterclaim that Plaintiff committed legal malpractice by, among other things, failing to respond to a cease-and-desist letter, failing to move to dismiss the guardianship petition, and failing to negotiate a more favorable settlement.  The court further held that it could be reasonably inferred from the allegations that Plaintiff’s negligence caused Defendant’s loss. 

Additionally, the First Department held that Plaintiff law firm’s submission of documents from the underlying action did not conclusively establish a defense to the malpractice allegations as a matter of law.  The First Department determined that judicial estoppel did not prevent Defendant from taking a contrary position in this proceeding compared to the underlying action, as the premise of Defendant’s counterclaim is that he made statements based on the Plaintiff’s negligent advice.

This is another case in a long line demonstrating, among other things, that when an attorney is accused of malpractice, the attorney cannot use documents or statements that resulted from the alleged malpractice to defeat the malpractice claim.