99 A.D.2d 1018 | N.Y. App. Div. | 1984
Lead Opinion
Order of the Supreme Court, New York County (David B. Saxe, J.), entered on October 25, 1982, which dismissed the third-party complaint by defendants and third-party plaintiffs, is reversed, on the law, and the motion to dismiss the third-party complaint is denied, with costs and disbursements. H Plaintiff commenced the instant action against defendants, her former attorneys, for their alleged legal malpractice in advising her to sign a settlement agreement with regard to a disputed family trust.
Dissenting Opinion
dissent in a memorandum by Silver-man, J.; Kupferman, J. P., also dissents separately in a memorandum, both of which follow:
Dissenting Opinion
dissent in a memorandum by Silver-man, J.: We would affirm the order appealed from, f Third-party defendants — attorneys Hawkins, Delafield and Wood — represented plaintiff June Rosner who was at least a nominal trustee under the trust created by her father; there were at least doubts as to the validity of her appointment and the appointment of her cotrustees (see Matter of Rosner v Caplow, 105 Misc 2d 592, mod 90 AD2d 44, affd 60 NY2d 880); there were further questions as to whether there had been improprieties and defalcations in the administration of the trust; their client had entered into an agreement to waive an accounting, an agreement under which she received personal benefits and which might conceivably prejudice the rights of other beneficiaries; there was thus a question as to what their client’s proper course of conduct should be. In the circumstances, the third-party defendants advised their client to seek the instructions and directions of the court by instituting an appropriate proceeding. I This appears to be a classic case falling within the “mere error of judgment” rule with respect to professional malpractice: “The rule requiring him to use his best judgment does not hold him liable for a mere error of judgment, provided he does what he thinks is best after careful examination.” (Pike v Honsinger, 155 NY 201, 210; see, also, Patterson v Powell, 31 Misc 250, affd on opn of App Term 56 App Div 624.) ¶ In particular, it is scarcely imaginable for it to be malpractice for an attorney, representing a fiduciary in a situation in which there is the slightest doubt as to the fiduciary’s rights and duties, to advise the fiduciary to present the matter to the court and receive the court’s instructions and directions. That is all that the third-party defendants did, and they were therefore clearly not guilty of malpractice. 1 The facts upon which this dissent is based all appear from the pleadings without regard to extrinsic facts other than those of which the court can take judicial notice, e.g., the petition for instructions and directions and the decisions of Special Term, this court and the Court of Appeals on that petition. 1Í It may be as has been suggested that the claim for malpractice in the third-party complaint is no worse than the claim for malpractice made in the underlying complaint against defendants and third-party plaintiffs. But the parties are agreed that the validity of the malpractice claim in the underlying complaint is not before us and they have not briefed it.
Dissenting Opinion
While I agree with the dissenting opinion of my colleague, Silverman, J., I would go slightly further, H On the theory that the best defense is an offense, the third-party plaintiffs-appellants have brought the third-party defendants-respondents into this case. When those third-party defendants were counsel to the plaintiff, it was a most justifiable ploy.
The plaintiff now has new counsel.