Can I Purchase a Legal Malpractice Lawsuit? Yes, But Read This Story First

On February 3, 2017 a federal Court Judge in Manhattan became the first Judge in New York to dismiss an assigned legal malpractice claim on the ground of "judicial estoppel". A New York building restorer was sued for flood damage to a Manhattan penthouse by the condo owner. The building restorer hired a law firm to defend him and they allegedly were negligent in allowing the penthouse owner to win a default judgment for over $1,000,000. Unfortunately, the penthouse owner couldn't collect his lawsuit winnings because the building restorer had no money or assets. So, under New York law it is perfectly legal for the building restorer to sell or assign his rights to the penthouse owner to sue his lawyers for legal malpractice--because they allegedly caused him to lose the case on default. 

Legal malpractice claims can be sold by the losing defendant to a prevailing plaintiff who knows the defendant can't possibly pay off the judgment. I've negotiated the assignment of a future lawsuit as part of a deal to settle a pending lawsuit and it was upheld as lawful by an Appellate Court. As a general rule it is illegal to sell one's right to a lawsuit. However, if the purpose of the assignment or sale of a lawsuit (even a legal malpractice claim) is to facilitate a settlement of another lawsuit, then it is permissible. Home Insurance Company v USAA, 692 NYS 2d 121 (2nd Dept 1999)

The penthouse owner sued his former opponents attorneys. However, in order to succeed in a legal malpractice case the penthouse owner must be able to prove that "but for" the negligence of the attorneys the building restorer would have defeated his flood damage claim. The Court dismissed the case finding that the penthouse owner would necessarily have to argue a position completely contradictory to the position he took in winning the property damage claim against the building restorer. In other words, the Court will not tolerate the penthouse owner claiming in one Court that the building restorer negligently caused damages in a sum exceeding $1,000,000--and thereafter claiming in another Court that the building owner was not negligent and would have won the property damage case. Molina v Faust 1:15-cv-09010

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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