LoPresti v. Galchus, S/Queens, Justice Carmen R. Velasquez, 717561/2020

Malpractice Case Against Guardian Ad Litem Dismissed Based on Immunity

A legal malpractice action was brought against the defendant, the court-appointed attorney for a minor child in a custody proceeding. The plaintiff brought the action to recover damages for legal malpractice and punitive damages, alleging the defendant failed to fulfill his obligations as a court-appointed attorney for her child. Specifically, the plaintiff contended that the defendant failed to zealously advocate for the child, failed to inform the court of the child's position on relocation, and failed to assist the child in articulating her position to the court. The plaintiff further alleged that, but for the defendant's negligence and failure to advocate for his client, custody never would have been transferred to the plaintiff's ex-husband. 

The court granted the defendant summary judgment and dismissed the case, determining that permitting a legal malpractice case to proceed against a court-appointed attorney would go against public policy and discourage attorneys from serving as court-appointed counsel. The court also noted that immunity from litigation is necessary to protect court-appointed counsel from harassment and intimidation.

Interestingly, the court dismissed this legal malpractice case on remitter despite the fact that the Appellate Division found that the defendant did not properly advocated for the interests of the child. The court held, that alone is not enough to overcome immunity. The court further found a lack of privity between the defendant and the plaintiff. 

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