Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLC v Comprehensive Mental Assessment & Med. Care, P.C., 2010 NY Slip Op 20007 (Sup. Ct Nassau Co. 2010)
This case represents many things. I find it interesting because it proves a point that many of us say to ourselves when nobody is listening, i.e., that the best plaintiff’s attorneys are those who were former defense attorneys, or hired former defense attorneys. Thus, we have this case, a matter where a plaintiff no-fault law firm is alleging a Mallela violation as a defense to a malpractice claim brought against it. I find the strategy ironic, yet am compelled to find it somewhat ingenious.
Behind the irony that this case offers, it should be remembered that the above scenario happens frequently in malpractice cases, when the former plaintiff attorney has to step into the shoes of the defendant he once sued because of the “case within a case” rule, that malpractice actions invoke.
And while many defense attorneys might find some joy in this decision, you should probably remember the following: if you as a “defense attorney” ever get hit with a malpractice claim, then you would be forced to turn “plaintiff attorney” and engage in a practice that is probably as unsavory as the said “plaintiff attorney” using Mallela as a defense. This would mean that you would be impeaching the denial you defended, the mailing of the same, the proof in support of the denial and the processes your then former client had in place, in order to defeat that malpractice claim.
As to the substance of this lawsuit, the only thought I have is that we all should have malpractice insurance or reserves put away for these occurrences.
