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Court Discusses Legal Malpractice in Forfeiture Action


The plaintiff was arrested and charged for driving while intoxicated DWI on October 30, 2002, after a breathalyzer test revealed that his blood alcohol content was .30 percent. His motor vehicle used while driving was also seized and later held for forfeiture action. He entered a guilty felony plea for operating a motor vehicle while under the influence of alcohol after waiving his right to be prosecuted by an indictment. The District Attorney then commenced an action pursuant to the Civil Practice Law and Rules seeking the plaintiff’s vehicle to be forfeited. A default judgment was entered in the District Attorney’s favor on July 2, 2003 after the plaintiff filed no answer.

The default judgment in the forfeiture proceedings led the criminal plaintiff to initiate a claim against the defendant, which was the law firm he had retained to defend his claim. The plaintiff asserted that he believed that the firm was retained for both the criminal and civil proceeding. The plaintiff further stated that he was unaware of the forfeiture action against him and the defendant made constant representations to him that they were in the process of retrieving the vehicle that the was subject of the forfeiture proceedings. The plaintiff sought to recover damages for legal malpractice and breach of the Judiciary Law (ยง 487). The defendant later requested summary judgment as there was no proof that the plaintiff would have been successful in the forfeiture proceedings. A search produced no marijuana.

During the motion for summary judgment, deposition revealed that firm had knowledge of the default judgment but did not inform the plaintiff of the judgment against him. An associate at the firm revealed that there was no possibility of the plaintiff retrieving the vehicle after the default judgment but this information was also never communicated to the plaintiff. The plaintiff was informed about the judgment and the vehicle being auctioned through other sources other than the law firm. The lower court dismissed the cause of action relating to the breach of the Judiciary Law as it was duplicative to the cause of action relating to legal malpractice. Judgment was granted in the defendant’s favor as the plaintiff failed to show that he would have been successful in the forfeiture action but for the negligence of the defendant. The defendant appealed the decision as there were triable facts.

The Appellate Division held that the lower court was correct in granting summary judgment because the alleged negligence of the defendant did not cause the loss of the plaintiff’s vehicle as he would not have been successful in the forfeiture proceedings. However, the court erred in dismissing the cause of action for the violation of the Judiciary Law relating to the misconduct of an attorney as it was not duplicative to the cause of action that alleged malpractice. The statutory claim required intent to deceive whereas legal malpractice was founded on negligent conduct. Real issues of fact existed as to whether there was an intention to deceive the plaintiff by the defendant. This issue precluded the defendant from obtaining summary judgment relating to the cause of action under Judiciary Law statute associated with the misconduct of the firm arising from the failure to represent the plaintiff the forfeiture proceedings.

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