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New York Team Successful on Appeal of Adverse Inference Ruling in Legal Mal Case

New York, N.Y. (March 21, 2019) - New York Partners Mark Anesh and Philip Furia were recently successful on appeal before the New York Appellate Division, First Department in a legal malpractice case, after previously obtaining an important adverse inference ruling in the Supreme Court, New York County concerning highly relevant documents that the plaintiff claimed to have lost. 

The plaintiff alleged that our client was negligent in handling the underlying case, which stemmed from allegations of late payments to a pension and welfare fund and withdrawals from a multi-employer pension plan. In the suit against our client, the plaintiff alleged that crucial documents had been accidentally lost or destroyed as a result of an eviction that occurred during the course of the underlying action.

We argued that the documents at issue were vital to the defense of the legal malpractice claim and that the plaintiff had a legal responsibility to safeguard those documents. We further contended that it was negligent for the plaintiff to store the sole copies of the documents at a location where an eviction might be imminent. The court agreed and ruled that “an adverse inference charge shall be given against plaintiff” relating to the documents that the plaintiff claimed to be lost or destroyed.

The plaintiff’s counsel appealed the decision and sought to have the adverse inference ruling reversed based on the argument that plaintiff did not act “negligently” in allowing the documents to be lost. In February 2019, we argued the appeal before the Appellate Division, First Department, which, in a unanimous decision, affirmed the trial court’s ruling and found that the plaintiff’s “decision to store his only copy of these records in a location that was the subject of an eviction proceeding, while he was under an obligation to safeguard the documents, demonstrates negligence.”

A copy of the Appellate Division’s full decision in the matter (Alphas v. Smith, 2019 NY Slip Op 02030 (1st Dep’t 2019)) can be found here. A video of the winning oral argument can be viewed here (beginning 10:23).


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