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Malpractice Suit Proceeds Against Mintz Levin N.Y. Managing Partner
New York Law Journal
September 11, 2008
A legal malpractice suit against the current New York managing partner of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo claiming he was too preoccupied with his lateral movement among firms to timely file a lawsuit may go forward, a Manhattan judge has ruled.
In 1998, litigator Robert I. Bodian, then a partner at Bodian & Eames, began representing Joseph Shelley in a dispute with his cousin, James Shelley, over a complicated web of intra-family businesses. In particular, Joseph Shelley sought to recover from entities controlled by James' side of the family an alleged multimillion-dollar indebtedness to pension plans overseen by Joseph.
That action was dismissed by a Long Island, N.Y., judge on statute-of-limitations grounds in November 2001, a decision upheld by New York's Appellate Division, 2nd Department. Joseph Shelley filed suit against Bodian and Boston-based Mintz Levin, which the lawyer joined in 1999.
Bodian is currently head of the firm's New York office and its New York litigation practice. He is also a member of Mintz Levin's policy committee.
Shelley claims Bodian failed to timely commence a lawsuit on his behalf because the lawyer was too busy transitioning among firms. During the time Bodian represented Shelley, he left his own firm first to briefly join the former O'Sullivan, Graev & Karabell before landing at Mintz Levin.
Shelley is also accusing Bodian and Mintz Levin of forging an affidavit from Shelley that affected the Long Island court's consideration of the statute-of-limitations issue. That affidavit states James Shelley ceased making payments to Joseph Shelley's pension funds in 1993, meaning any 2000 lawsuit would run afoul of a six-year statute of limitations on loan actions. But Joseph Shelley claims he never provided the affidavit and the payments continued to 1995.
Supreme Court Justice Emily Jane Goodman denied summary judgment to Joseph Shelley on the grounds that he had not provided adequate documentation of the loans in question and how they justify the amount he is now seeking in his suit.
But she also rejected the argument by Bodian and Mintz Levin that the transactions at issue should not be considered loans but merely investments or transfers. She noted that Bodian had referred to them as loans himself in the course of his representation of Joseph Shelley.
She also rejected the defendants' argument that Joseph Shelley's suit to recover amounts owed to the pension plans would have been uncollectible.
"Defendants' argument is irrelevant because in a malpractice action plaintiff is only required to show he suffered damages, and not collectibility of a successful judgment," Goodman wrote in Shelley v. Bodian, 602254/05.
O'Sullivan, which merged with O'Melveny & Myers in 2002, was also originally a defendant. According to Shelley's lawyer, Steven Legum of Carlucci & Legum in Mineola, N.Y., that firm was stipulated out because Bodian did not file the suit at issue in the case until he was at Mintz Levin.
Legum said the indebtedness at issue was worth between $3 million and $4 million. The plaintiff is also seeking hundreds of thousands of dollars he claims he was overbilled.
Bodian and Mintz Levin are represented by Howard Elman of Matalon Shweky Elman.
Elman said that his clients were confident they would prevail on the facts. He called the allegation of a forged affadavit "frivolous on its face." He added that Bodian "enjoys an excellent and well deserved reputation."
In 1998, litigator Robert I. Bodian, then a partner at Bodian & Eames, began representing Joseph Shelley in a dispute with his cousin, James Shelley, over a complicated web of intra-family businesses. In particular, Joseph Shelley sought to recover from entities controlled by James' side of the family an alleged multimillion-dollar indebtedness to pension plans overseen by Joseph.
That action was dismissed by a Long Island, N.Y., judge on statute-of-limitations grounds in November 2001, a decision upheld by New York's Appellate Division, 2nd Department. Joseph Shelley filed suit against Bodian and Boston-based Mintz Levin, which the lawyer joined in 1999.
Bodian is currently head of the firm's New York office and its New York litigation practice. He is also a member of Mintz Levin's policy committee.
Shelley claims Bodian failed to timely commence a lawsuit on his behalf because the lawyer was too busy transitioning among firms. During the time Bodian represented Shelley, he left his own firm first to briefly join the former O'Sullivan, Graev & Karabell before landing at Mintz Levin.
Shelley is also accusing Bodian and Mintz Levin of forging an affidavit from Shelley that affected the Long Island court's consideration of the statute-of-limitations issue. That affidavit states James Shelley ceased making payments to Joseph Shelley's pension funds in 1993, meaning any 2000 lawsuit would run afoul of a six-year statute of limitations on loan actions. But Joseph Shelley claims he never provided the affidavit and the payments continued to 1995.
Supreme Court Justice Emily Jane Goodman denied summary judgment to Joseph Shelley on the grounds that he had not provided adequate documentation of the loans in question and how they justify the amount he is now seeking in his suit.
But she also rejected the argument by Bodian and Mintz Levin that the transactions at issue should not be considered loans but merely investments or transfers. She noted that Bodian had referred to them as loans himself in the course of his representation of Joseph Shelley.
She also rejected the defendants' argument that Joseph Shelley's suit to recover amounts owed to the pension plans would have been uncollectible.
"Defendants' argument is irrelevant because in a malpractice action plaintiff is only required to show he suffered damages, and not collectibility of a successful judgment," Goodman wrote in Shelley v. Bodian, 602254/05.
O'Sullivan, which merged with O'Melveny & Myers in 2002, was also originally a defendant. According to Shelley's lawyer, Steven Legum of Carlucci & Legum in Mineola, N.Y., that firm was stipulated out because Bodian did not file the suit at issue in the case until he was at Mintz Levin.
Legum said the indebtedness at issue was worth between $3 million and $4 million. The plaintiff is also seeking hundreds of thousands of dollars he claims he was overbilled.
Bodian and Mintz Levin are represented by Howard Elman of Matalon Shweky Elman.
Elman said that his clients were confident they would prevail on the facts. He called the allegation of a forged affadavit "frivolous on its face." He added that Bodian "enjoys an excellent and well deserved reputation."
