Practice point: The physician-plaintiff alleged
that defendant-law firm failed to represent him properly in
connection with investigations by Medicare and the Office of
Professional Conduct into the licensure of his employee and his billing practices, and that these failures resulted in
his arrest for grand larceny and insurance fraud.
In the CPLR 3211 motion to dismiss, defendants offered documentary evidence refuting plaintiff's allegations by showing that any
purported negligence in connection with the administrative
proceedings or any advice with respect to plaintiff's method of billing
Medicare did not proximately cause plaintiff's
arrest. The indictment for grand larceny charged
that plaintiff billed for services that were not rendered, and the
record of his criminal conviction contradicts
the allegations in the complaint. As plaintiff's own actions resulted in his
arrest, he failed to show that any alleged malpractice on defendants'
part proximately caused his damages, namely, his arrest. This failure required dismissal of the legal
malpractice action regardless of whether defendants were negligent.
Student note: In pleading his Judiciary Law § 487 claim, plaintiff failed to allege that defendants acted with intent to deceive the court or any party, or a chronic and extreme pattern of legal delinquency.
Case: Herschman v Kern, Augustine, Conroy & Schoppman, NY Slip Op 00416 (1st Dept. 2014).
Here is the decision.
Tomorrow's issue: Effect of a default judgment as to liability.
