Viscardi v. Lerner

Decision Date31 December 1986
PartiesAntoinette VISCARDI, et al., Appellants, v. Jack Newton LERNER, et al., Respondents.
CourtNew York Supreme Court — Appellate Division

Merritt T. Viscardi, New York City (Gail G. Simmons, on the brief), for appellants.

Whalen & Whalen, North White Plains (James T. Whalen, of counsel), for respondents.

Before LAZER, J.P., and THOMPSON, NIEHOFF and KUNZEMAN, JJ.

MEMORANDUM BY THE COURT

In an action to recover damages for legal malpractice, the plaintiffs appeal from an order of the Supreme Court, Westchester County (Ferraro, J.), entered May 3, 1985, which granted the defendants' motion for summary judgment dismissing the complaint and denied their cross motion for partial summary judgment.

ORDERED that the order is affirmed, with costs.

The alleged malpractice in this case involves the drafting of the will of Joseph A. Ragone. In 1973 Ragone consulted the defendant law firm for the purpose of preparing a new will to replace his prior will executed in 1965. The 1965 will gave to Ragone's wife Josephine the minimum elective share she would be entitled to under New York law--$2,500 outright and one-third of the rest of his estate in trust for her life, with the remainder upon her death to Ragone's brother, if then alive, otherwise to his sisters who were named as the residuary beneficiaries of the estate. Ragone's sisters are the plaintiffs in this case.

In January 1973 Ragone executed a new will which had been prepared by the defendants. Paragraph six of the 1973 will provided, in pertinent part: "I give and bequeath to my wife, JOSEPHINE RAGONE, if she survives me, such part of my estate as my wife would have received had I died intestate". Since the wife was Ragone's sole distributee in intestacy, this provision gave her the entire estate. The will also contained another provision which named Ragone's sisters as beneficiaries of the residuary estate even though the gift of the entire estate to Ragone's wife precluded the existence of a residuary estate.

When Ragone died and the 1973 will was offered for probate, the plaintiffs filed objections claiming that Ragone's actual intention was simply to eliminate the former trust provision for his wife and give her the entire elective share outright. The Surrogate of New York County (Midonick, S.) construed the 1973 will to give Josephine her intestate share. The Surrogate concluded that Ragone's widow was his sole distributee and entitled to the entire estate (Matter of Ragone, 116 Misc.2d 993, 459 N.Y.S.2d 649). On appeal, the Appellate Division, First Department, modified the decree of the Surrogate and found that Ragone intended to give his widow an intestate share of his estate computed as though his son by Ragone's first marriage (who was later adopted by his stepfather) was a distributee and the remainder of the estate should pass to the plaintiffs herein (Matter of Ragone, 87 A.D.2d 457, 452 N.Y.S.2d 410). The Court of Appeals reversed the order of the Appellate Division and reinstated the decree of the Surrogate (Matter of Ragone, 58 N.Y.2d 864, 460 N.Y.S.2d 528, 447 N.E.2d 76).

In their legal malpractice action, the plaintiffs contend that if the 1973 will had been drawn as Ragone desired--granting Josephine an elective share--they would have inherited one-half of the estate as residuary legatees instead of inheriting nothing. In support of their argument, the plaintiffs rely on certain handwritten instructions from Ragone to his lawyers concerning the changes he wanted incorporated into the 1973 will. The handwritten notes state as to paragraph six of the 1965 will (giving Josephine an elective share) "OMIT TRUST PROVISION-OUTRIGHT TO WIFE". The plaintiff's maintained that the defendants...

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  • In re Hanes
    • United States
    • U.S. District Court — Virgin Islands, Bankruptcy Division
    • September 17, 1997
    ...an attorney is not liable to third parties not in privity for harm caused by professional negligence. See, e.g., Viscardi v. Lerner, 125 A.D.2d 662, 510 N.Y.S.2d 183 (1986); Spivey v. Pulley, 138 A.D.2d 563, 526 N.Y.S.2d 145, 146 (1988). Under the privity rule, New York courts consistently ......
  • Crossland Sav. FSB v. Rockwood Ins. Co.
    • United States
    • U.S. District Court — Southern District of New York
    • December 5, 1988
    ...National Westminster Bank U.S.A. v. Weksel, 124 A.D.2d 144, 511 N.Y.S.2d 626 (1st Dept. 1987); Viscardi v. Lerner, 125 A.D.2d 662, 663-64, 510 N.Y.S.2d 183, 185 (2d Dept. 1986). It was on the basis of this rule that I dismissed Rockwood's direct claim against Barsalou for malpractice. It ha......
  • Barcelo v. Elliott
    • United States
    • Texas Supreme Court
    • May 10, 1996
    ...111 Wis.2d 507, 331 N.W.2d 325, 327 (1983). But see Lilyhorn v. Dier, 214 Neb. 728, 335 N.W.2d 554, 555 (1983); Viscardi v. Lerner, 125 A.D.2d 662, 510 N.Y.S.2d 183, 185 (1986); Simon v. Zipperstein, 32 Ohio St.3d 74, 512 N.E.2d 636, 638 (1987). While some of these states have allowed a bro......
  • Vereins-Und Westbank, AG v. Carter
    • United States
    • U.S. District Court — Southern District of New York
    • July 14, 1988
    ...mentioned any of the principles we have discussed, nor cited any case which did so. Defendants also rely upon Viscardi v. Lerner (2d Dept.1986) 125 A.D.2d 662, 510 N.Y.S.2d 183, an action by the intended beneficiaries of a will against an attorney for negligently drafting the will. We find ......
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1 books & journal articles
  • The Gambler Breaks Even: Legal Malpractice in Complicated Estate Planning Cases
    • United States
    • Georgia State University College of Law Georgia State Law Reviews No. 20-2, December 2003
    • Invalid date
    ...701 (Me. 1999); Noble v. Bruce, 709 A.2d 1264, 1278 (Md. 1998); Lilyhorn v. Dier, 335 N.W.2d 554, 555 (Neb. 1983); Viscardi v. Lerner, 510 N.Y.S.2d 183, 185 (N.Y. Sup. Ct. 1986); Maneri v. Amodeo, 238 N.Y.S.2d 302, 304 (N.Y. Sup. Ct. 1963); Simon v. Zipperstein, 512 N.E.2d 636, 638 (Ohio 19......

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