FKB successfully obtains summary judgment for NYC defense firm arising from the handling of an underlying lead paint case. 6/4/09

FKB's client, a well-regarded NYC defense firm, was retained in 2002 by the insurers for a corporate building owner to defend the corporation and the two individual shareholders in connection with the defense of a lead paint case in the Bronx, alleging catastrophic injuries. Within a year after the law firm's retention, they were replaced by another law firm, who ultimately defended the case at trial in 2006. In the underlying Bronx lead paint case, the jury awarded damages in the amount of $6.9 million, which was later modified and reduced by the trial court to $4.1 million. The jury apportioned 75% liability to the corporation, and 25% liability to one of the individual shareholders.

In the legal malpractice action, the corporation and the individual shareholder alleged that FKB's client "failed to make a timely pre-trial motion to dismiss the action … thereby exposing them to vagaries of a jury, and/or to present at trial legal authority which would have secured a dismissal pre-verdict."

Supported by New York case law, which holds that where successor counsel has had sufficient time to protect a party's rights, the prior law firm cannot be liable for malpractice, since the prior firm cannot be the "but for" proximate cause of plaintiff's alleged damages, FKB moved for summary judgment following the completion of discovery. Specifically, FKB successfully argued that discovery concretely established that although the FKB's client was initially retained as defense counsel in the underlying Bronx lead paint case and interposed an Answer on behalf of the legal malpractice plaintiffs – successor counsel was substituted as defense counsel for more than one year prior to trial.

Hon. Thomas P. Phelan, J.S.C. of Nassau County, Supreme Court, granted FKB's motion for summary judgment, holding that the plaintiffs failed to establish that "but for" the purported negligence, (i.e., failing to make a pre-answer motion to dismiss and instead of filing an answer in the underlying action) the legal malpractice plaintiffs were damaged in the underlying Bronx lead paint case.

FKB's Melissa Manning drafted the winning papers and successfully argued the motion before Justice Phelan.

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