Macaluso v Pollack , 2010 NYSlipOp 30276(U) , Justice Diamond, Nassau County, presents an interesting story of how a case can get dismissed. Beyond the storyline, the case presents analysis of liability of predecessor/subsequent attorneys, how the dissolution of a partnership affects legal malpractice litigation, what subsequent attorneys can accomplish in the Second Circuit, and potential liability of associate attorneys.

The original attorneys were to represent plaintiff in an employment discrimination case, but negligently failed to follow court orders in US District Court. Eventually, the case was dismissed by the US District Judge, on one particular day in which the attorneys did not appear for a conference. This was apparently the last straw, as there had been many previous late filings, etc. So case is dismissed. Attorneys for plaintiff at that point were a partnership of two attorneys. These attorneys then file an appeal to the Second Circuit, but leave out several essential filings which dooms the appeal.

Plaintiff hires set two of attorneys, who try to fix the appeal, but fail. The appeal is dismissed by the Second Circuit. This firm consists of attorneys and an associate attorney who are sued. Who is at fault? . In the end, first attorneys remain in the case, second attorneys are out, and the associate is out, too.

"On or about September 25 , 2007, the plaintiff then retained defendant Jason R. Corrado, P. C.
and Jason R. Corrado, Esq. (refereed to hereafter collective as Corrado). Plaintiff met with Corrado
at his law office in mid October, 2007. He advised her that the appeal that Pollack failed was defective because she failed to fie Forms C and D. On January 7 2008 she signed another retainer agreement with Corrado. The plaintiff retained Corrado to seek to restore the appeal to the  appellate calendar, reversal of the dismissal of the Federal discrimination case from the trial calendar and restoration to the trial calendar. Plaintiff asserts she paid a retainer of$5 000.00 and neither Corrado nor Rizzuto took any legal action with regard to the appeal. Plaintiff alleges that due to the legal malpractice of defendants law firm, Pollack, Kotler, Corrado and Rizzuto, she suffered the loss of right to litigate and would have prevailed in her underlying sexual harassment and  employment  discrimination case. Moreover she asserts each defendant breached the respective duty owed to her resulting in damages."

"The Corrado defendants argue that the dismissal of the discrimination action was caused solely by the action of defendant Pollack. Corrado asserts a motion to vacate had already been made
and a second motion could not be made while an appeal was already pending. Corrado contends that only where an aggrieved client can establish the presence of "extraordinary circumstances" would there be a chance of prevailing on the appeal and Judge Spatt had expressly ruled that "extraordinary circumstances" were not present.  The two dismissals of plaintiffs lawsuit (at district court and at the appellate level) were the result of the actions of plaintiff s initial counsel, co-defendant Pollack. For almost two years, plaintiff and her prior counsel, co-defendant Pollack failed to provide court-ordered discovery and even failed to appear at court-ordered conferences. Judge Wall, in his lengthy 48 page order concluded that co-defendant Pollack’ s behavior was "undeniably negligent." . Plaintiff appealed Judge Wall’ s order to Judge Spatt who adopted Judge Wall’ s order and reiterated that defendant Pollack was negligent. In so holding, Judge Spatt used language such as "numerous late filings persistent failures  ‘counsel’ s negligence , " irrational and bizarre claims" and "reckless manner Appeals were taken by co-defendant Pollack and once again, co-defendant Pollack failed to file the appropriate forms. The appeal was dismissed. (See Exhibit " , motion-in-chief). In July 2007, plaintiff appealed the Order of Dismissal to the United States Court of Appeals for the Second Circuit by notice filed by Pollack. However, Pollack failed to fie Forms C and D that were required to be filed with the appeal. In October 2007, the Second Circuit issued an order to show cause which provided that the appeal would be dismissed for failing to file Forms C and D. Corrado, who was retained by plaintiff after her case had been dismissed, to try and undo the harm caused by Pollack. The Second Circuit denied the application and as such Corrado was unable to reverse the dismissal of the action caused by Pollack’ s actions. "