Client hires attorney and, let’s say, the relationship sours.  Client moves on to attorney 2 and there is a bad outcome to the litigation.  Who is responsible (if anyone)?  Is it attorney 1 or attorney 2 or both?

Tooma v Grossbarth   2014 NY Slip Op 07347  Decided on October 29, 2014  Appellate Division, Second Department is the exploration of this question, from the opposite persepctive.  Can attorney 1 successfully dismiss the case on the theory that Attorney 2 should/could have fixed the problem, but didn’t.  In this case attorney 1 fails, but others have succeeded.

"The defendants are an attorney and his law firm who represented the plaintiff in an underlying medical malpractice action that was commenced in December 2006. In the underlying action, the plaintiff alleged that he was injured as a result of medical malpractice arising from certain spinal surgery that he underwent on May 21, 2004, and the continuous "care and treatment" that he received until "at least June 18, 2004." In January 2012, while the underlying action was pending, it was brought to the attention of the Supreme Court in that action that the defendant Joel A. Grossbarth, the only practicing attorney associated with the defendant law firm Tognino & Grossbarth, LLP, was suspended from the practice of law. The Supreme Court stayed the underlying action until March 30, 2012, so that the plaintiff could retain new counsel. Thereafter, upon the motion of the defendants in the underlying action, the Supreme Court, in an order dated August 20, 2012, directed the dismissal of the complaint in the underlying action, based on the plaintiff’s failure to proceed to trial."

"The plaintiff contends that the defendants failed to timely join proper parties in the underlying action. Accordingly, the fact that the Supreme Court dismissed the complaint in the underlying action, which was asserted solely against parties that were allegedly not culpable to the plaintiff for improper medical treatment, and was based solely on the failure to proceed to trial, does not dispose of the plaintiff’s claim sounding in legal malpractice, since the order directing the dismissal of the complaint in the underlying action did not address the merits of the underlying action or the causes of action that the plaintiff may have had against the persons who were not joined as defendants in that action. Thus, the Supreme Court properly denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a)(1) to dismiss the complaint in this action."

"The defendants argue that, had the plaintiff retained successor counsel in the underlying action, that counsel could have remedied any alleged negligence that the defendants might have committed in their capacity as initial counsel, thus breaking any causal link between the negligence of initial counsel and the plaintiff’s damages. We reject the defendants’ contention. Unlike the instant action, the cases upon which the defendants rely arise from matters where the relief sought by a party was an absolute right, or where control of the outcome of litigation was wholly in the hands of successor counsel (see DiGiacomo v Levine, 76 AD3d 946; Volpe v Canfield, 237 AD2d 282; see also Katz v Herzfeld & Rubin, P.C., 48 AD3d 640, 641; Ramcharan v Pariser, 20 AD3d 556, 557; Perks v Lauto & Garabedian, 306 AD2d 261; Albin v Pearson, 289 AD2d 272; Kozmol v Law Firm of Allen L. Rothenberg, 241 AD2d 484). In order to remedy the negligence allegedly committed by the defendants in their capacity as the plaintiff’s initial counsel in the underlying action, any subsequent counsel in that action would have needed far more than a [*3]reasonably sufficient period of time in which to litigate the issue of the nonjoinder of proper parties (see Grant v LaTrace, 119 AD3d 646). Rather, to remedy that alleged negligence, a substituted counsel, or the plaintiff pro se, would have had to successfully litigate a motion to join allegedly culpable parties as additional defendants in the underlying action approximately five years after the statute of limitations on the medical malpractice cause of action had expired (see CPLR 214-a, 203[b]). The record before us provides no evidence to support the defendants’ contention that such a motion would have been successful (see Stevens v Winthrop S. Nassau Univ. Health Sys., Inc., 89 AD3d 835, 836; Matter of Murphy v Kirkland, 88 AD3d 267; Shapiro v Good Samaritan Regional Hosp. Med. Ctr., 42 AD3d 443, 444)."