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Counsel Concerns

By Stan Soocher

The New York Appellate Division, First Department, reinstated a malpractice claim filed by a production company over legal representation regarding its rights to the musical Harmony, co-written by Barry Manilow. Snorkel Productions Inc. v. Beckman Lieberman & Barandes LLP, 03840. Previously, Manilow and his co-writer, Bruce Sussman, had pursued arbitration against Snorkel Productions under a production-rights agreement, for a ruling that Snorkel failed to timely exercise its option to extend its right to produce the play. The arbitration panel decided in favor of Manilow and Sussman; the Southern District of New York affirmed. Manilow v. Snorkel Productions Inc., 04 Civ. 1866 (PKC) (S.D.N.Y. 2004). In the complaint Snorkel then filed against its counsel, the New York County Supreme Court granted summary judgment for malpractice defendants Beckman Lieberman & Barandes.

The appellate division affirmed in part, noting: “In light of [Snorkel's] admission that, had [the malpractice] defendants properly advised them of the date on which the option to produce a dramatic-musical play written by Barry Manilow and Bruce Sussman ' would lapse, they would have timely renewed the option and proceeded to invest, willingly assuming the risk that they would be unable to obtain adequate financing and the production would fail, the motion court correctly concluded that, although the incorrect advice may have induced plaintiffs' continuing investment, it was not the proximate cause of their claimed losses, which resulted solely from the failure to obtain financing sufficient to support the production.”

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