A. Michael Furman and Bain R. Loucks Obtain Dismissal of Suit Against Per Diem Counsel Charged with Legal Malpractice in Supreme Court, Richmond County7/6/10

Furman Kornfeld & Brennan LLP's client was retained on a per diem basis to assist the co-defendant law firm (attorneys of record) in connection with the prosecution of an underlying trip and fall action against the City of New York on behalf on the plaintiff. The co-defendant law firm requested that FKB's client, a solo practitioner on Staten Island, assist in connection with depositions and discovery in the underlying action on a per diem basis.

At the time FKB's client first became involved in the underlying action, the statute of limitations to add additional parties under a negligence theory had already expired, thus precluding the plaintiff from adding a potentially liable defendant. The City, arguing that it had no prior notice of the defect that allegedly caused the fall, was later granted summary judgment thereby disposing of the trip and fall action.

Thereafter, the plaintiff commenced a legal malpractice action against co-defendant law firm and FKB's client, alleging that the defendant attorneys (1) failed to timely commence an action against a potentially liable defendant; and (2) failed to properly oppose the City's motion for summary judgment. Rather than engage in discovery, FKB chose to file a pre-answer motion to dismiss on the grounds that plaintiff failed to state a cause of action for legal malpractice against FKB's client.

In support of the motion to dismiss, FKB argued that its client did not become involved in the underlying action until after the statute of limitations had expired. Thus, the plaintiff could not plead and ultimately prove that FKB's client proximately caused any of plaintiff's alleged damages arising out of the alleged failure to commence an action against a potentially liable defendant.

Plaintiff also alleged that FKB's client failed to properly oppose the City's motion for summary judgment. In the motion to dismiss, FKB argued that plaintiff's claim was barred by the doctrines of res judicata and collateral estoppel in that the underlying Court had already considered and rejected the claims plaintiff attempted to assert in the legal malpractice action.

After hearing arguments, Hon. Judith McMahon, J.S.C. (Richmond County) agreed with FKB's position, and dismissed the Complaint in its entirety.

FKB's Bain R. Loucks prepared the winning motion papers.

Please feel free to contact A. Michael Furman or Bain R. Loucks should you have any questions about the decision or this practice area in general.

Home | Email | Site map | Client Rights | Disclaimer | Top of page