Client is the widow of a worker who died, either at work or at a company Christmas party.  She retains the law firm to "investigate and advise her with respect to all potential claims relating to the accident of December 23, 2010 and Mr. Pena’s death."  When she is no longer able to apply for Workers Compensation, she sues.  Was the law firm responsible to her on this issue?

Lirano v Grimble & Logudice, LLC  2014 NY Slip Op 32346(U)  September 3, 2014  Supreme Court, New York County  Docket Number: 154676/2013  Judge: Eileen A. Rakower is just a discovery decision, but this question will come up, and we expect to see a summary judgment motion in the future.

"As alleged in the Verified Complaint, Decedent suffered injuries in an accident while working on December 21, 2010, at 175 East 96th Street, New York, New York 10128, and died on December 23, 2010 as a result of his injuries. Plaintiff retained Defendants to "investigate and advise her with respect to all potential claims relating to the accident of December 23, 2010 and Mr. Pena’s
death." The Complaint alleges, by letter dated December 28, 2012, G&L "rejected the case without commencing a lawsuit or filing a Workers’ Compensation claim on behalf of the decedent, Eduardo Pena, or his estate." It further alleges, "Pursuant to the applicable statute, a Workers Compensation claim must be filed within two (2) years. Therefore, the decedent and/or his estate are precluded from filing a Workers’ Compensation claim as a result of the accident of December 21, 201 O." Plaintiff claims that Defendants were negligent "in not advising the administratrix that the estate had a viable Workers’ Compensation claim; in not informing her that a Workers’ Compensation claim had to be commenced within two (2) years of the date of the accident and in failing to refer her to a lawyer and/or firm that focused on Workers’ Compensation claims and in failing to advise her to consult with a lawyer and/or firm that focused on Workers’ Compensation
claims," and resulting damages. In its Answer, G&L denies that the injuries sustained by Pena on the date of the incident was the sole factor causing Pena’s death because Pena had preexisting
medical conditions. Furthermore, G&L contends Decedent was intoxicated at an after-hours Christmas party when the injury occurred, which would not be covered by Workers’ Compensation. G&L further contends that (1) Plain ti ff failed to state a cause of action; and (2) Plaintiff was aware that G&L was retained solely with regard to an action based upon negligence of others, and not with respect to a Workers’ Compensation claim. "