Justice Goodman
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PLAINTIFF law firm Ellenoff Grossman & Schole (EGS) moved to dismiss defendant’s counterclaims for legal malpractice. Defendant APF Group Inc. opposed the motion. The court noted EGS agreed, at APF’s request, to bolster a contract prepared by APF’s principal and non-party Delspina, by providing certain boilerplate legal phrases concerning binding arbitration, events of termination and non-exclusivity of the agreement between APF and Delspina. EGS conceded that APF lost the arbitration because the parties orally terminated the agreement after it was signed. APF alleged it was malpractice for EGS not to include a standard merger clause, while EGS maintained that even if the clause was part of the agreement, the outcome would have been the same. The court found EGS’s argument that it could not have committed malpractice based on its limited role unsupported by written evidence. It found an e-mail suggested that EGS’s role was far broader than it contended. The court noted the omission of a boilerplate merger clause was directly related to the work EGS admittedly agreed to provide. It found EGS failed to meet its burden to show APF could not have prevailed at arbitration even if the clause was included. Thus, EGS’s motion was denied.
