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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: August 7, 2020

Court Refuse to Dismiss Legal Malpractice Claim Because of Questions of Fact Regarding Existence of Counsel’s Engagement

On June 18, 2020, Justice Risi of the Queens County Commercial Division issued a decision in Matin v. Chowdhury, 2020 NY Slip Op. 32491(U), refusing to dismiss a legal malpractice action because there were questions of fact regarding whether counsel had been engaged by the plaintiff, explaining:

[T]he court concludes that the allegations of the third-party complaint as well as certain documentary evidence submitted by the Billah defendants, including e-mails and the underlying management agreements between Chowdhury and the plaintiff in the main action, Mohammed Matin (“Matin”), do not conclusively establish as a matter of law that the Billah defendants are entitled to dismissal of the third-party claim for legal malpractice asserted against them. In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages. To establish causation, a plaintiff must show that, but for the lawyer’s negligence, he or she would have prevailed in the underlying action or would not have incurred any damages.

Here, the third-party complaint sufficiently alleges a claim for legal malpractice by stating that, in 2018, Chowdhury believed that the Billah defendants were acting as her attorney with respect to the management agreement and the purchase agreement between Matin and Chowdhury, and that the Billah defendants were negligent in failing to advise and discuss with Chowdhury all the legal rights and remedies available to her, failing to know the applicable law, and failing to advise Chowdhury of a conflict of interest in representing both Matin and Chowdhury in connection with the management agreement. The third-party complaint further alleges that, as a result of this alleged negligence, Chowdhury signed the management agreement that she would have not otherwise signed and forewent legal action to recover the $95,000.00 paid by Chowdhury in the purchase of the subject Subway restaurant. The Billah defendants primarily argue that they did not provide legal representation to Chowdhury in connection with the management agreement and subsequent asset purchase agreement between Chowdhury and Matin. In support of their motion, the Billah defendants submitted an email dated June 28, 2016, in which it was stated that the Billah defendants represented Matin in the preparation of the contract of sale between Matin and Chowdhury and that Chowdhury informed Matin that she would not be represented by an attorney in the transaction, as well as the signed asset purchase agreement between the parties dated April 13, 2018, the signed management agreement between the parties dated October 4, 2017, and the signed management agreement between the parties dated January 16, 2018. These documents, however, do not completely disprove Chowdhury’s factual allegations of legal malpractice surrounding the events that occurred in connection with the management agreement and the asset purchase agreement between Matin and Chowdhury in 2018.

(Internal citations omitted).

We both bring and defend professional malpractice claims and other claims relating to the duties of professionals such as lawyers, accountants and architects to their clients. Contact us if you have questions regarding such claims or appeals of such claims.

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