“The first stone” analysis in this case is facinating. Legal malpractice action brought because plaintiff believed his prisioner beating municipal case was time barred. His attys did not bring the action at all. In Legal Malpractice case Judge now dismissed, saying:
“While, generally, suit must be initiated against a municipality and its agencies within one (1) year and ninety (90) days of the claim’s accrual (see, GML §50-i), the tenor of the underlying claim concerns the asserted deprivation of the claimant’s civil rights (see, 42 USC §1983). The limitations period applicable thereto is three (3) years from the date of accrual. (see, Okure v. Owens, 625 F Supp 1568, affd 815 F2d 45, affd 488 US 235; Perez v. County of Nassau, 294 F Supp 2d 386 [ED NY 2003]; Bidnick v. Johnson, 253 AD2d 779)
Inasmuch as the underlying claim remained viable for an extended period following the return of Mr. DiBenedetto’s file, the defendant’s failure to file suit cannot reasonably be construed as a proximate cause of a compensable injury. (see, generally, Ramcharan v. Pariser, 20 AD3d 556; Albin v. Pearson, 289 AD2d 272; C & F Pollution Control, Inc. v. Fidelity and Casualty Company of New York, 222 AD2d 828 [3d Dept.])”
So, this is a legal mal upon a legal mal upon a legal mal. Details.