Posted On: December 30, 2012 by Stephen Bilkis

Plaintiff Sues Divorce Lawyer for Failure to Prosecute

The plaintiff, Marguerite Grucci has alleged a first cause of action for legal malpractice for failure to prosecute and a second cause of action for legal malpractice for failure to obtain a permanent order for protection and a third cause of action for a breach of contract against the defendants Gregory Rabinowitz and Kramer & Rabinowitz, LLC. This case is being heard in the Supreme Court of the State of New York located in Suffolk County.

A New York Family Lawyer said the plaintiff has also entered a fourth cause of action in this case seeking damages for the delay in turning her file over to the new attorney that she obtained and for removing documents from the file and delaying the recommencement of her case. She states that the defendant deceitfully advised her that her grounds for divorce were not strong enough. She also alleges a cause of action regarding her loss of support and maintenance based on the defendant’s refusal to release the payments from escrow. The final cause of action made by the plaintiff accuses the defendant’s of excessive billing.

Plaintiff’s Case

The plaintiff has moved for a partial summary judgment in the case for the first cause of action of legal malpractice for failure to prosecute. A New York Custody Lawyer said he asserts in her affidavit that she had sufficient grounds for a divorce from her spouse, but the defendants advised her not to oppose the motion made by her husband to dismiss the action for divorce. The defendant’s told her that she had received sufficient pendent elite arrears.

Defendant’s Case

The defendants have filed a cross motion for a summary judgment dismissing the complaint. The defendant’s argue that the decision to not file the complaint was legitimate and was made after a consultation with the plaintiff in which she consented. The defendants state that they came to this conclusion based on the poor health of the plaintiff, her financial condition, and her ineffectiveness as a witness. The defendant’s further argue that the plaintiff has not shown that she would have been successful in the first action and that she cannot prove actual loss.

Case Discussion and Decision

The plaintiff gave testimony on the fifth of September, 2008 in which she stated that she was confused by the failure of Rabinowitz to ask her questions during the Family Court hearing where she applied for a permanent order of protection. A Queens Family Lawyer said the testimony of the plaintiff further shows that she did not understand why the defendant felt that her grounds for divorce were not strong enough given the background information of the case.

The plaintiff met her burden in this matter by submitting expert proof that the defendant’s failure to file a complaint after an outstanding demand of two years and advising the plaintiff to not oppose the dismissal motion made by her husband without receiving the divorce that she desired. The expert witness showed that this is a departure from the minimum standards of care in the field of matrimonial law. This raised the question of credibility of the defendants.

A Queens Custody Lawyer said the court will not grant summary judgment to the defendants for the fifth and sixth causes of action based on the information that has been provided. Summary judgment is granted to the defendants in the third and fourth causes of action as they are found to be duplicates of the first two causes of action.

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