You are here: / / PLAINTIFF, WHICH ULTIMATELY WON THE PATENT INFRINGEMENT SUIT, ALLEGED MALPRACTICE...
, ,

PLAINTIFF, WHICH ULTIMATELY WON THE PATENT INFRINGEMENT SUIT, ALLEGED MALPRACTICE IN THE BRINGING OF CERTAIN MOTIONS; HAD THE MOTIONS WON, IT WAS ALLEGED, $10 MILLION IN LEGAL FEES WOULD HAVE BEEN AVOIDED; THE MALPRACTICE ACTION WAS PROPERLY DISMISSED.

The First Department determined the legal malpractice action by plaintiff (Brookwood) against defendant law firm (A & B) was properly dismissed. The law firm defended plaintiff in a patent infringement action which eventually won (with new lawyers). Plaintiff incurred legal fees of $10 million. In this malpractice action, plaintiff alleged its legal fees would have been much lower had the law firm won certain motions early on in the case:

A focal point of this appeal is Brookwood’s claim that A & B, in the patent action, negligently litigated defenses that were available to Brookwood pursuant to 28 USC § 1498. 28 USC § 1498 provides that when a patent is infringed for the benefit of the United States government, the patent holder’s remedy is against the United States in the United States Court of Federal Claims. Brookwood alleges that had A & B not been negligent, the motions that A & B eventually brought based on 28 USC § 1498 would have been granted and Brookwood would have avoided the approximately $10 million it expended on defending itself at trial and on appeal. Important in this analysis is the fact that Brookwood ultimately prevailed in the underlying patent action, achieving a judgment of noninfringement. The theory of Brookwood’s malpractice case is not that but for A & B’s negligence it would have prevailed in the patent action; rather Brookwood’s claim is that but for the manner in which A & B interposed the defenses available to Brookwood under 28 USC § 1498, Brookwood would have prevailed without incurring the additional legal fees it expended. In other words, but for A & B’s negligence, Brookwood could have achieved the same result more expeditiously and economically. The Supreme Court granted A & B’s motion and dismissed the complaint in its entirety, holding, among other things, that the allegations did not support a finding of attorney negligence or of proximate cause. We now affirm. * * *

Decisions regarding the evidentiary support for a motion or the legal theory of a case are commonly strategic decisions and a client’s disagreement with its attorney’s strategy does not support a malpractice claim, even if the strategy had its flaws. “[A]n attorney is not held to the rule of infallibility and is not liable for an honest mistake of judgment where the proper course is open to reasonable doubt” … . Moreover, an attorney’s selection of one among several reasonable courses of action does not constitute malpractice … . Brookwood has not alleged facts supporting its claim that A & B’s evidentiary decision, to rely on [the plaintiff’s] expert, rather than compromise the merits of Brookwood’s position on other arguments, was an unreasonable course of action. Brookwood Cos., Inc. v Alston & Bird LLP, 2017 NY Slip Op 00535, 1st Dept 1-26-17

 

ATTORNEYS (LEGAL MALPRACTICE, PLAINTIFF, WHICH ULTIMATELY WON THE PATENT INFRINGEMENT SUIT, ALLEGED MALPRACTICE IN THE BRINGING OF CERTAIN MOTIONS, HAD THE MOTIONS WON, IT WAS ALLEGED, $10 MILLION IN LEGAL FEES WOULD HAVE BEEN AVOIDED, THE MALPRACTICE ACTION WAS PROPERLY DISMISSED)/LEGAL MALPRACTICE (PLAINTIFF, WHICH ULTIMATELY WON THE PATENT INFRINGEMENT SUIT, ALLEGED MALPRACTICE IN THE BRINGING OF CERTAIN MOTIONS, HAD THE MOTIONS WON, IT WAS ALLEGED, $10 MILLION IN LEGAL FEES WOULD HAVE BEEN AVOIDED, THE MALPRACTICE ACTION WAS PROPERLY DISMISSED)/NEGLIGENCE (LEGAL MALPRACTICE, PLAINTIFF, WHICH ULTIMATELY WON THE PATENT INFRINGEMENT SUIT, ALLEGED MALPRACTICE IN THE BRINGING OF CERTAIN MOTIONS, HAD THE MOTIONS WON, IT WAS ALLEGED, $10 MILLION IN LEGAL FEES WOULD HAVE BEEN AVOIDED, THE MALPRACTICE ACTION WAS PROPERLY DISMISSED)

You might also like
AT SENTENCING THE PROSECUTOR REFERENCED EXCULPATORY STATEMENTS ATTRIBUTED TO DEFENDANT IN THE PRESENTENCE REPORT BUT, WHEN GIVEN THE OPPORTUNITY, NEITHER DEFENDANT NOR DEFENSE COUNSEL ADDRESSED THE ISSUE; NOTWITHSTANDING THE SILENCE OF THE DEFENSE THE JUDGE SHOULD HAVE INQUIRED INTO WHETHER THE GUILTY PLEA WAS KNOWING AND VOLUNTARY; THERE WAS NO NEED TO PRESERVE THE ERROR FOR APPEAL (FIRST DEPT).
DEFENDANTS PRESENTED NO EVIDENCE OF SNOW REMOVAL EFFORTS OR LACK OF CONSTRUCTIVE NOTICE IN THIS ICE-ON-SIDEWALK SLIP AND FALL CASE; DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (FIRST DEPT).
PUBLICATION OF CLAIMANT’S IMAGE IN THE STATE’S PUBLIC SERVICE AD ABOUT THE RIGHTS OF HIV POSITIVE PERSONS CONSTITUTED DEFAMATION PER SE, STATE DID NOT USE THE IMAGE FOR COMMERCIAL PURPOSES THEREFORE THE CIVIL RIGHTS LAW DID NOT APPLY (FIRST DEPT).
THERE WAS A QUESTION OF FACT WHETHER THE FORKLIFT ACCIDENT RESULTED FROM A HOLE OR CRACK IN THE SIDEWALK ADJACENT TO THE OUT-OF-POSSESSION LANDLORD’S BUILDING; EVEN OUT-OF-POSSESSION LANDLORDS ARE RESPONSIBLE FOR MAINTAINING THE ADJACENT SIDEWALK IN A REASONABLY SAFE CONDITION (FIRST DEPT).
THIS BREACH OF CONTRACT ACTION WAS BASED UPON A LEASE ENTERED BY A LIMITED LIABILITY COMPANY THE ASSETS OF WHICH WERE PURCHASED BY THE TWO DEFENDANT LIMITED LIABILTY COMPANIES; THE MAJORITY CONCLUDED THE COMPLAINT STATED A CAUSE OF ACTION UNDER THE THEORY THAT THE DEFENDANTS CONSTITUTED A “MERE CONTINUATION” OF THE ORIGINAL LESSEE’S BUSINESS; THERE WAS A TWO-JUSTICE DISSENT (FIRST DEPT).
THE CONTRACT CALLED FOR LIQUIDATED DAMAGES AS THE “SOLE REMEDY” FOR BREACH; HOWEVER NOTHING IN THE CONTRACT LANGUAGE WAIVED THE NONBREACHING PARTY’S RIGHT TO PREJUDGMENT INTEREST PURSUANT TO CPLR 5001(A) (FIRST DEPT).
DEFENDANT LANDLORD NOT LIABLE FOR PLAINTIFF’S FALL OUT OF A WINDOW; NO ALLEGATION OF THE VIOLATION OF ANY RULE, REGULATION, CODE OR STANDARD (FIRST DEPT).
DEFENDANTS’ DEMAND FOR A CHANGE OF VENUE WAS PROPERLY DISMISSED AS UNTIMELY UNDER THE ELECTRONIC FILING RULES (TO WHICH DEFENDANTS HAD CONSENTED).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

DEUTSCHE BANK BREACHED CREDIT DEFAULT SWAP AGREEMENTS. PLAINTIFF DID NOT SUFFICIENTLY DEMONSTRATE ​DEFENDANT’S AGENTS TRANSACTED...