When a client has multiple remedies, such as personal injury, wrongful death, pain and suffering, as well as workers’ compensation, sometimes the attorneys focus on one to the detriment of another remedy.  Such is what seems to have happened in 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.  The law firm took on a case in which decedent died while working.  Some two years and 5 days later the law firm rejected the case.  Problem?  No WC case started within the 2 year time limit.  Legal Malpractice?  We don’t know yet.  Right now, the parties are skirmishing over discovery.  More answers later.

“As alleged in the Verified Complaint, Decedent suffered injuries in an accident while working on December 21, 2010, at 175 East 96 th 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, 2010.” 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) Plaintiff 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. ”

“Wherefore, it is hereby ORDERED that Defendant’s motion is granted to the extent that Plaintiff is directed to supplement Plaintiffs Bill of Particulars with respect to the paragraphs of G&L’s Demand for a Bill of Particulars as referenced above and to produce outstanding discovery that is requested in Defendant’s First Notice for Discovery and Inspection; and it is further ORDERED that Plaintiffs cross motion for a protective order is granted only to the extent that Plaintiff need not supplement any other portions of its Bill of Particulars not identified above. “