Law Offices of Ronald C. Burke



Appeals Court Reinstates Legal Malpractice Claim Dismissed For Lack of Standing & Untimeliness

On July 28, 2021, the Appellate Division, Second Department reversed a Kings County Justice who had dismissed a legal malpractice claim as untimely and for plaintiffs alleged lack of standing. In the year prior to suit the plaintiff had filed a bankruptcy petition and neglected to list the potential legal malpractice claim as an asset. Normally, when a plaintiff had been “discharged” in bankruptcy with an undisclosed potential claim, that would be fatal to a subsequent lawsuit and deprive the plaintiff of standing to sue for legal malpractice. However, 11 months prior to filing the legal malpractice action, the plaintiff's bankruptcy Petition was “dismissed”. The appeals court held that upon dismissal of the Bankruptcy Petition, "standing" to file the legal malpractice claim was "revested" in plaintiff.

The appeals court also overruled the lower court with respect to its holding that plaintiff's claim was filed more than 3 years after the alleged act of legal malpractice. The essence of the claim was that the defendant attorney drafted and executed a contract to effectuate the sale of real property owned by the plaintiff, Limited Liability Company (LLC), without the approval of all members and in violation of its operating agreement and the Limited Liability Company Law. When the plaintiff was sued by the buyer for specific performance to force it to close on the sale of the real property, the plaintiff LLC claimed that the defendant attorney was conflicted and negligently failed to assert a meritorious defense that the contract of sale he drafted and executed was done without the approval of all members of the LLC. 

The Second Department held that the action was timely because the 3 year statute of limitations for legal malpractice didn't accrue, (begin to run) until a Court granted the buyers action for specific performance some 2- 3 years after the alleged acts of professional negligence. The appeals court noted: "A legal malpractice claim accrues when all the facts necessary to the cause of action have occurred and an injured party can obtain relief in court". Accordingly, the three year countdown didn't start to run as of the date the contract was drafted and signed, but when the plaintiff was compelled to close on the sale of the property by an order granting the buyer specific performance. Golden Jubilee Realty, LLC v Castro, 2021 WL 3177630

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 " and "Top New York Settlements." 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 was 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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