In Birnbaum v. Misiano , Alan Birnbaum claimed his attorney, James Misiano, failed to provide adequate representation, and lacked the necessary "skill and knowledge," when the latter oversaw a loan given by Birnbaun to Michael Seeger.
While Seeger provided three watches as collateral for a $14,000 loan, and Misiano prepared the documents, the attorney supposedly failed to suggest the watches be appraised. Over the course of the next two years, Birnbaum made additional loans to Seeger and a fourth watch was given as collateral.
Birnbaum later discovered the loans were secured by "fictitious" bank accounts and the watches were worthless.
When the Nassau County Supreme Court granted Misiano's motion to dismiss the case filed against him, Birnbaum appealed to the Appellate Division, Second Department.
According to the AD2, Birnbaum needed to show Misiano's deficient legal representation caused "actual or ascertainable" damage. To establish entitlement to the dispute's dismissal, Misiano had to show Birnbaum was unable to "prove at least one element of the claim."
While Misiano claimed there was no evidence the debt was uncollectible and that Birnbaum had been damaged, the AD2 was of the opinion there were issues of fact which precluded the grant of relief in either side's favor. In other words, a formal hearing or trial was warranted.
We'll continue to watch this case.
To download a copy of the Appellate Division's decision, please use this link: Birnbaum v. Misiano