FKB’s A. Michael Furman and Aaron M. Barham won a Second Department appeal unanimously affirming a pre-answer dismissal on behalf of a general practice firm which represented the plaintiff homeowner in an underlying foreclosure action. The plaintiff falsely alleged that FKB’s clients “defaulted” in the underlying action, when in fact the plaintiff substituted herself as the pro se attorney before the bank’s summary judgment motion was fully submitted and granted.
While the lower court granted FKB’s motion to dismiss based upon documentary evidence refuting Plaintiff’s claim that its clients defaulted, the Second Department upheld the dismissal of Plaintiff’s legal malpractice claim on proximate causation grounds, holding that there were no facts alleged showing that the underlying action would not have resulted in a judgment of foreclosure and sale. The Court also held that Plaintiff’s breach of contract cause of action was duplicative of the legal malpractice claim, and that Plaintiff’s overbilling cause of action was barred by res judicata, pursuant to an arbitration decision resolving the parties’ fee dispute.
If you have any questions about this decision, or the defense of attorneys in general, please contact A. Michael Furman and Aaron M. Barham.