As we have discussed in the recent past, the element “that but for the departure of the attorney there would have been a better economic outcome for plaintiff” is a black hole of such magnitude that a vast portion of dismissed legal malpractice cases disappear there. Put another way, while it is simple to show a mistake make by an attorney, showing that the client would have otherwise won the case is subject to a world of other issues.
Ingvarsdottir v Gaines, Gruner, Ponzini & Novick, LLP 2016 NY Slip Op 08049
Decided on November 30, 2016 Appellate Division, Second Department is a great example. Plaintiff hired attorneys to defend her in a civil action where she was named as a defendant along with her employer.
“The plaintiff, a native of Iceland, allegedly worked as an employee of Datalink in the United States while on two H-1B nonimmigrant visas issued for the period of May 20, 2005, until May 15, 2011. The plaintiff informed the law firm parties that Datalink did not pay her any wages or a salary for her services, and they subsequently asserted a cross claim on her behalf in the civil action pursuant to Business Corporation Law § 630(a) against Datalink and Bedi to recover unpaid wages. On May 3, 2014, the plaintiff commenced this action against the law firm parties to recover damages for legal malpractice alleging, among other things, that they had mistakenly asserted in her cross claim for unpaid wages that her employment with Datalink had ended in 2009, when it had actually ended on a later date, and that they had failed to timely provide notice to Bedi that she intended to recover unpaid wages from him as required by Business Corporation Law § 630(a).”
“Thereafter, the law firm parties commenced a third-party action against the attorney who represented the plaintiff in connection with certain immigration matters both before and during the period that they represented her in the civil action. The third-party complaint alleged that the law firm parties were entitled to common-law indemnification or contribution from the third-party defendant if they were held liable for legal malpractice to the plaintiff because the third-party defendant was involved in the drafting of the plaintiff’s cross claim for unpaid wages against Bedi and Datalink, and owed a duty to her to provide notice to Bedi on her behalf pursuant to Business Corporation Law § 630(a).”
“Here, the plaintiff alleged in paragraph 51 of her complaint that she actually worked for Datalink and Bedi until November 4, 2010. Business Corporation Law § 630(a) requires that for any employee to assert a claim to, in effect, pierce the corporate veil and hold a shareholder of a corporation responsible for the “debts, wages or salaries due and owing to any of its . . . employees,” written notice of claim must be given to the shareholder within 180 days “after termination of [the employee’s] services” (Business Corporation Law § 630[a]; see Stuto v Kerber, 26 Misc 3d 535, 537 [Sup Ct, Albany County], affd 77 AD3d 1233, affd 18 NY3d 909). Therefore, the plaintiff was obligated to provide her Business Corporation Law § 630(a) notice to Bedi not later than May 4, 2011. A party’s failure to comply with the notice requirement of Business Corporation Law § 630(a) precludes an action against the shareholder (see Beam v Key Venture Capital Corp., 152 AD2d 825; Pope v Halloran,76 AD2d 770). Since the complaint also alleges that the law firm parties were retained to represent her in the civil action on May 19, 2011, the complaint fails as a [*3]matter of law to state a cause of action to recover damages for legal malpractice, as the 180-day notice period of Business Corporation Law § 630(a) had already expired by the time the attorney-client relationship was formed.”
“We further reject the plaintiff’s argument that even if the Business Corporation Law § 630(a) notice period is measured from November 4, 2010, the complaint states a cause of action based upon the insanity toll of CPLR 208 and the doctrine of equitable tolling. Specifically, the plaintiff argues that the mental abuse she received from Bedi was of such magnitude that she was under a psychiatric disability at the relevant times. However, the legal malpractice complaint failed to allege sufficient facts to support a finding that the plaintiff was unable to function in society, as is required for a toll under CPLR 208 (see Santo B. v Roman Catholic Archdioscese of N.Y., 51 AD3d 956; Simon v Bryski, 278 AD2d 224; Steo v Cucuzza, 213 AD2d 624, 625).”