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YOU CAN'T RECOVER FROM YOUR ATTORNEY WHAT YOU COULDN'T COLLECT FROM THE DEFENDANT

This is a saga of a shipwreck two decades adrift in our legal system with multiple appearances before the Trial and Appellate Courts. The plaintiff, Lindenman retained the defendant attorney to pursue an action against a Yacht Club for what he described as "horrific brain injuries resulting from being hit in the head by a tray full of dirty dishes" carried by a busboy. The accident happened in 1989 and attorney Kreitzer filed suit but it was dismissed in 1992 because he failed to obey a preclusion Order giving him one last chance to serve a bill of particulars. For the next five years attorney Kreitzer led his client to believe the action was still pending.

In 1997 client Lindenman filed a legal malpractice claim against Kreitzer (now disbarred from the practice of law) and a three day non-jury trial was held in 2001. Kreitzer's attorney's successfully moved to dismiss on the ground that plaintiff Lindenman had not proved their prima facie case of legal malpractice because they had not presented any evidence that a judgment against the Yacht Club could have been collected. In other words, was there evidence the Yacht Club had assets and/or insurance coverage? More importantly, which side has the burden of proof on the issue of collectability in a legal malpractice case?

In 2004, the Appellate Division, First Department in a landmark ruling reversed the trial court and declared that the issue of collectability would no longer be a burden for plaintiff to prove its case but an affirmative defense that the defendant would have to prove in avoidance or mitigation of damages. 775 N.Y.S.2d 4. Lindenman returned for a second non-jury trial in 2008 for the limited issue of whether Lindenman would have established that the Yacht Club's busboy was negligent.

The non-jury trial was held in March and September, 2008, and concluded with the Court finding the Yacht Club 60% at fault, Lindenman 40% at fault and awarded a total of $12,800,000 in damages to Lindenman and his wife. However, Kreitzer's motion for a post verdict hearing on collectability was denied. After reductions for Lindenman's 40% culpable conduct, structuring and collateral source set offs, attorney defendant Kreitzer appealed from the Judgment entered in 2010, arguing that the damages awarded were excessive and that they were denied a post verdict collectability hearing.

  1. In Round 2 the Appellate Division (now April 2013) reduced the damages award to under 2 million noting that Lindenman's brain injury didn't require surgery and that he could drive and play tennis. Moreover, it agreed that Kreitzer was entitled to a hearing on collectability. Simply put, if Kreitzer (someday in the future) proves that the Yacht Club's liabilities exceeded its assets and that it didn't have insurance coverage, Lindenman will not recover a penny from Kreitzer despite his negligent handling of the underlying case. Lindenman v Kreitzler, Appellate Division, Second Department April, 2013 Slip Op. 02356
Ronald C. Burke, Esq

Trial Attorney with 30+ Years of Experience Attorney Ronald C. Burke, Esq. has more than 30 years of experience and has focused his career on representing clients in cases involving personal injury, medical malpractice and legal malpractice. He is a seasoned trial lawyer and has won many seven-figure settlements and verdicts for his clients over the years, including many case victories listed among the largest in the history of the New York State. He has been featured in the news and is a regular lecturer for the New York County Lawyers Association, as well as having lectured before the New York State Bar Association. Ron is also an attorney with Kelner & Kelner, a New York personal injury law firm. Awards and Accolades Mr. Burke's awards and accolades are many. Among them, he has been included in New York Super Lawyers® each year since 2010, and he has received the highest-possible AV® Rating from Martindale-Hubbell®. Verdict Search, a part of the New York Law Journal, frequently recognizes his notable successes after winning some of the highest settlements and verdicts in past years. He was also featured in their list of the "Top New York Verdicts of 2011" and "Top New York Settlements of 2012." He is a member of the New York State Bar Association and is licensed to practice law in the U.S. District Court for the Southern and Eastern Districts of New York, as well as before the United States Supreme Court. When Attorney Burke is not handling legal malpractice cases, he is highly involved in the local community. He is a member of the Village of Rockville Centre Volunteer Fire Department, has served on the local school board and as Chairman of the local Zoning Board. Learn more about Attorney Burke and how he can skillfully handle your malpractice case by contacting the Law Offices of Ronald C. Burke, Esq. right away to schedule your complimentary case evaluation. Our firm is here to help! Contact a New York Legal Malpractice Attorney Our firm provides each client's case with thorough preparation and aggressive representation, ensuring that you win the best possible results for your case whether it is settled or goes to trial. As a seasoned trial lawyer, Mr. Burke can provide the strong and relentless representation you need to establish negligence in a legal malpractice case and to recover any damages you may have suffered. Our firm can recover compensation for pre-trial and trial malpractice, violations of fee arrangements, loss of income, pain and suffering, and much more. Contact us today!

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