(Download) "Morrow Grago v. John T. Robertson" by Supreme Court of New York " Book PDF Kindle ePub Free
eBook details
- Title: Morrow Grago v. John T. Robertson
- Author : Supreme Court of New York
- Release Date : January 10, 1975
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 62 KB
Description
[49 A.D.2d 645 Page 645] The plaintiff, Morrow Grago, is a subcontractor who entered into an agreement with Brydon Construction Corporation (hereinafter Brydon) in April of 1965 to perform certain site work and masonry work. Mr. Grago posted a performance bond issued by Transamerica Insurance Company. Following a dispute with Brydon, the plaintiff walked off the job. Brydon subsequently commenced a lawsuit in New York City against Mr. Grago for breach of contract. Mr. Grago then hired an attorney, the defendant John T. Robertson, for the alleged purpose of defending the suit commenced by Brydon and prosecuting Mr. Grago's claim for breach of contract. Mr. Robertson served an answer on behalf of Mr. Grago in the New York City lawsuit and included a counterclaim for breach of contract. He also commenced a lawsuit for breach of contract against Brydon in the Supreme Court of Madison County. That lawsuit was subsequently consolidated with the case in New York City. When the cases were reached for trial on April 6, 1970, Mr. Robertson, because of lack of notice, failed to appear on behalf of Mr. Grago and Brydon obtained a default judgment for $271,896 against Mr. Grago and for $51,814.54 against Transamerica Insurance Company, both judgments being entered on December 7, 1970. These default judgments were set aside on April 7, 1971. In November of 1971 Brydon's complaint against Mr. Grago was dismissed and Mr. Grago received a judgment of $37,162.75 against Brydon. The judgment remains unsatisfied since it is alleged that Brydon had become insolvent. On September 14, 1972 Mr. Grago commenced a malpractice action against Mr. Robertson alleging the following improper conduct: (1) Mr. Robertson failed to appear and thereby improperly allowed the default judgment to be taken; (2) Mr. Robertson failed to commence legal action against Brydon's bonding company; (3) Mr. Robertson failed to file a lien against the owner of the construction site; (4) Mr. Robertson failed to preserve Mr. Grago's interest pursuant to the Lien Law; (5) due to Mr. Robertson's omission, Mr. Grago was required to hire additional counsel and incurred superfluous legal expenses; (6) due to Mr. Robertson's omission with regard to Transamerica Insurance Company's legal interests, Mr. Grago incurred additional legal expenses on behalf of Transamerica; (7) Mr. Robertson breached his contract of legal representation; and (8) Mr. Robertson breached other contractual obligations to preserve a variety of Mr. Grago's legal interests. The defendant asserted that the plaintiff had not made out a prima facie case of malpractice or of breach of contract, that he had never been paid for any services rendered, that he had never been advised to file a lien, and that the Statute of Limitations barred the plaintiff's claims. The plaintiff moved for summary judgment, while the defendant sought to have all of the causes of action dismissed. The court held that the first and fifth causes of action should not be dismissed since factual determinations had to be made concerning whether the defendant's neglect constituted malpractice. He dismissed causes of action labeled two, three and four as being time-barred since the alleged malpractice occurred in 1965 and the court did not believe that the doctrine of continuous representation should be applied. The court also dismissed the sixth, seventh and eighth causes of action. Both parties have appealed from the court's determination. There are three central [49 A.D.2d 645 Page 646]