MMP&S Prevails on Pre-Answer Motion to Dismiss in Legal Malpractice Action

In Estate of Benjamin Sendyk v. Gallus, MMP&S prevailed on a pre-answer motion to dismiss a legal malpractice action involving allegations of malicious prosecution and Judiciary Law § 487 action against our client, an attorney. In the underlying Racketeer Influenced Corrupt Organizations (RICO) action, our client litigated claims against an international telephone company that allegedly engaged in criminal copyright infringement, money laundering, mail and wire fraud. After the defendant prevailed in the underlying Federal Court action, plaintiff commenced a malicious prosecution action in Supreme Court, Kings County, alleging that the attorney and her clients commenced the prior action with malicious intent and without probable cause. It was further alleged that our client filed a false complaint and made misrepresentations to the federal court in violation of New York Judiciary Law § 487. MMP&S successfully argued that the probable cause element of a malicious prosecution claim must be applied to the entire underlying lawsuit, and not individual causes of action. Given that some of the underlying claims were submitted to a jury precluded a finding that the entire action lacked probable cause. As for the Judiciary Law § 487 claim, MMP&S argued that the vague allegations of misrepresentations were not set forth with the requisite specificity, and otherwise failed as a matter of law.

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