N.Y. PI Firm in Evidence Scandal Can Sue Its Own Counsel for Malpractice
A 1986 lawsuit by New York City alleging falsification of evidence by attorneys at what was once a top personal injury law firm there isn’t yet completely resolved. The accused law firm can sue its defense counsel in the city’s tort claim for malpractice, a state appeals court has decided, because an earlier dismissal of the malpractice suit “without prejudice,” based on the corporate status of the law firm, didn’t establish res judicata.
The PI firm, formerly known as Eisen and since known as Landau and Morris J. Eisen, contends that its legal counsel in the city’s tort suit, Larossa, Mitchell & Ross, should have submitted evidence to show that the city was liable in the underlying cases at issue regardless of any falsified evidence, according to the New York Law Journal. Its article is reprinted by New York Lawyer (reg. req.).
The city was awarded $2.1 million in a partial summary judgment in the tort case. In a related federal criminal case, Morris J. Eisen, the founder and sole shareholder of the firm, prior to his 1992 disbarment, and six other lawyers and investigators for the PI firm were convicted in 1991 on Racketeer Influenced and Corrupt Organizations Act charges, the New York Law Journal notes.
It isn’t too late for the Eisen firm to bring the malpractice claim against Larossa, the law firm now contends, because an earlier dismissal was based on then-dissolved Landau firm’s lack of corporate status to bring the case. And the New York Court of Appeals agreed in a June 25, 2008 opinion (PDF), a copy of which was provided by Cornell Law School.
Applied too rigidly, res judicata can be unjust, the court writes. “Landau has yet to have its day in court to litigate the merits of its legal malpractice claim against defendants and we therefore find that res judicata is not applicable to plaintiff in this case.”
