The Successor Attorney Problem in Legal Malpractice

White Plains:  We've often identified ways in which legal malpractice is not like other litigation.  One such area is the successor attorney problem.  In legal malpractice, if attorney 1 makes a mistake, and the client then fires attorney 1 and hires attorney 2, then attorney one is basically off the hook if there is time for attorney 2 to clean up the mess.  In a chain personal injury tort, (think a car accident followed by med mal), the first tortfeasor is responsible for all subsequent forseeable torts.

Anisman v Nissman  2014 NY Slip Op 03218  Decided on May 7, 2014  Appellate Division, Second Department is an example.  Here, the court found that there was insufficient time, but the principal still stands.

"In an action to recover damages for legal malpractice, the defendant Peter N. Nissman appeals from an order of the Supreme Court, Westchester County (O. Bellantoni, J.), entered January 16, 2013, which denied his motion for summary judgment dismissing the amended complaint insofar as asserted against him.

The Supreme Court properly denied Nissman's motion for summary judgment dismissing the amended complaint insofar as asserted against him. Nissman failed to show, prima facie, that the plaintiff was unable to prove at least one of the essential elements of his legal malpractice cause of action (see Bells v Foster, 83 AD3d at 877; Mueller v Fruchter, 71 AD3d at 651; Pedro v Walker, 46 AD3d 789, 790). Contrary to Nissman's contention, he did not establish that successor counsel had a sufficient opportunity to protect the plaintiff's rights such that Nissman's conduct could not have proximately caused the plaintiff's alleged damages (see Gelobter v Fox, 90 AD3d 829, 832). Nissman's failure to make such a showing required denial of the motion, [*2]regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). "


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