Plaintiff seems to be ascendant at this point in the case, but proof of a 19 year old trip and fall may be difficult in the extreme.  A trial will ensue, after plaintiff’s rare successful motion for partial summary judgment was granted in Cox v. McKernan. 

In today’s New York Law Journal Christine Simmons reports that  "A retired teacher who claimed a Staten Island law firm "did virtually nothing to prosecute" her personal injury case for 14 years has convinced an Eastern District magistrate judge that her ex-attorneys were negligent.

McKernan & Gatins represented Catherine Cox in a slip-and-fall action, filing suit against the City of New York in 1994. The case was dismissed in 2008 when a judge found the city wasn’t the proper defendant. By then it was too late to bring suit against the right party, and Cox sued the firm for legal malpractice.

"The record reflects that defendants were negligent," said Magistrate Judge Joan Azrack (See Profile) about the now dissolved firm and its partners. "Making matters worse, the only explanation any of the defendants provided plaintiff for suing the wrong defendant was a false one."

While Azrack granted summary judgment to Cox on some elements of her legal malpractice claim, including negligence, she denied it on another required factor, namely whether the firm’s negligence proximately caused Cox’s loss."
 

"In Cox v. McKernan & Gatins, 11-cv-5980, Azrack said that while the "court sympathizes that [Cox] received such poor legal representation," genuine issues remain on whether Cox would have prevailed in her underlying slip-and-fall case if the proper defendant was sued.

Cox filed the underlying suit after she fell on a gym floor in 1993 at Port Richmond High School during a charity basketball game. Cox, then a physical education teacher at the school, broke her arm.

She initially consulted with attorney Paul Scano, who filed a notice of claim against the city and its Board of Education. But she ultimately signed a written retainer agreement with McKernan & Gatins, composed of Kevin McKernan and Patrick Gatins, to represent her.

The firm filed suit against the city in 1994 but not against the board.

During the first year after retaining the firm, Cox met several times with McKernan, who assured her "everything was fine," according to court papers.

But the firm didn’t file a request for judicial intervention asking the state court for a preliminary conference until March 2008. " "McKernan admitted in court papers he erred in informing Cox that the notice of claim was against only the city."That was not an attempt to shift blame," he said, noting he had not read the file in some time and had misread when drafting the letter.

Gatins, who is disabled and no longer practicing, said he wasn’t involved in Cox’s case. Noting he had not yet read the decision, he declined to comment on it. Gatins is representing himself in the litigation."Gatins, who is disabled and no longer practicing, said he wasn’t involved in Cox’s case. Noting he had not yet read the decision, he declined to comment on it. Gatins is representing himself in the litigation