A New York trial court dismisses a legal malpractice case brought by the personal representative of a law firm's client after the client died and left an insurance policy and CD to her mother who was a Medicaid recipient. The court finds no evidence that the estate was damaged. Fleisher v. Ballon Stoll Bader & Nadler, PC (N.Y. Sup. Ct., No. 158302/2012, Oct. 5, 2015).
Marilyn Fleisher hired the law firm of Ballon Stoll Bader & Nadler to do estate and Medicaid planning for her and her parents. Mrs. Fleisher owned a life insurance policy and CD that named her mother as her beneficiary. When Mrs. Fleisher died, those assets went to her mother, who was living in a nursing home and receiving Medicaid.
David Fleisher, in his position as personal representative, sued the law firm for legal malpractice, claiming that Mrs. Fleisher's estate was damaged by the law firm's failure to advise Mrs. Fleisher to change the beneficiary on the life insurance and CD. Mr. Fleisher argued that if it were not for the law firm's negligence, the policy and CD would have been conveyed to Mrs. Fleisher's estate and to him as beneficiary. The law firm filed a motion to dismiss, arguing that the estate had not suffered any damages.
The New York Supreme Court grants the motion to dismiss, holding that because Mr. Fleisher did not present evidence that the estate was damaged, he cannot pursue a legal malpractice claim. According to the court, Mr. Fleisher did not "demonstrate that 'but for' the [law firm's] negligence, Mrs. Fleisher would not have transferred any assets to her mother, and instead that these assets would have become part of the estate and ultimately reach [Mr. Fleisher] as the beneficiary."
For the full text of this decision, go to: https://www.nycourts.gov/reporter/pdfs/2015/2015_31855.pdf
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