Wilck & Wisher Achieve Dismissal of Legal Malpractice Case

Rivkin Radler LLP (Uniondale & Albany, NY)

Wilck & Wisher Achieve Dismissal of Legal Malpractice Case

Rivkin Radler’s Uniondale Partner David Wilck and Albany Associate Ben Wisher teamed up to defend an attorney against a legal malpractice action brought by the attorney’s former client. The plaintiff alleged that, in August 2017, the attorney prepared a deed for the plaintiff and her since-deceased brother. The intention was for the title to the properties conveyed to be to joint tenants with survivorship rights. Allegedly, the deed was prepared and recorded, making the conveyance to “tenants by the entirety,” a designation reserved for married couples.

When the plaintiff’s brother passed in September 2021, litigation ensued between his estate and the plaintiff concerning ownership of the properties. In that action, the plaintiff was ultimately ordered to remit half of the value of the properties to the estate. The plaintiff commenced the legal malpractice action in September of this year, claiming that the attorney’s error was the cause of the plaintiff’s loss in the estate action. David and Ben identified at the outset that the legal malpractice claim appeared untimely, as it was brought over seven years after the attorney’s alleged error.

Under New York law, legal malpractice claims are subject to a three-year statute of limitations, which accrues at the time of the alleged malpractice. David and Ben prepared and filed the motion and refuted the plaintiff’s opposition that her legal malpractice claim accrued upon her brother’s death (when she could, for the first time, not enforce her originally intended survivorship right in the properties). The Court issued its Decision and Order, granting the motion and dismissing the case with prejudice. The client was relieved. The carrier was happy, and this is the second favorable result that David and Ben have delivered to the carrier within a week. Ben was also quick to prepare and file the Notice of Entry to begin the plaintiff’s time to appeal.