A frequently recurring legal malpractice issue arises when one law firm handles a workers’ compensation case arising from a personal injury.  One such example is  Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP  2015 NY Slip Op 04819  Decided on June 10, 2015  Appellate Division, Second Department.  There are three lessons to be learned:

1.  Disengagement letters are vastly important;

2. When a disengagement letter is mailed, do it correctly;

3. The statute of limitations for legal malpractice accrues when the statute of limitations for the underlying personal injury action expires.

“On November 27, 2006, the plaintiff allegedly was driving his employer’s bus when he collided with another vehicle. Shortly thereafter, the plaintiff retained the defendant, a law firm, to represent him in connection with the motor vehicle accident. According to the defendant, in April 2007, it decided not to prosecute a personal injury action on the plaintiff’s behalf and advised the plaintiff of this fact by letter dated June 8, 2007, while continuing to represent the plaintiff with respect to a workers’ compensation claim. On or about October 21, 2010, the plaintiff discharged the defendant and hired a new attorney. In November 2012, the plaintiff commenced this action against the defendant to recover damages for legal malpractice. The plaintiff alleged that the defendant failed to commence a personal injury action on his behalf against the owner and operator of the other vehicle involved in the motor vehicle accident before the statute of limitations expired.

The defendant made a pre-answer motion to dismiss the complaint as time-barred, for failure to state a cause of action, and based upon documentary evidence. The defendant contended that it did not represent the plaintiff with respect to the personal injury action, based upon assertions that an attorney formerly with the defendant orally informed the plaintiff that “a personal injury action was not feasible” and thereafter sent the letter dated June 8, 2007, to the plaintiff by regular and certified mail. In support of the motion, the defendant submitted a copy of the letter and a blank certified mail receipt.

In opposition, the plaintiff’s attorney noted that the defendant did not submit an affidavit or affirmation from the attorney who allegedly mailed the letter dated June 8, 2007. The attorney further noted that the certified mail receipt was blank, and no return receipt was submitted. The plaintiff also submitted a personal affidavit wherein he stated that he retained the defendant for [*2]both his workers’ compensation claim and his personal injury claim, he was never informed that the defendant would not represent him in a personal injury action, and he never received the letter dated June 8, 2007.

In a reply affidavit, the attorney who allegedly mailed the letter dated June 8, 2007, who was now working at another law firm, stated that she “specifically advised” the plaintiff in a telephone conversation that “a personal injury action was not feasible” and as a result, the defendant “would not be representing him in a personal injury action.” She further stated that she sent the letter dated June 8, 2007, to the plaintiff via regular mail and certified mail.

The Supreme Court denied the defendant’s motion, and we affirm.”

“The statute of limitations for a legal malpractice cause of action is three years (see CPLR 214[6]). This legal malpractice action accrued when the statute of limitations for the underlying personal injury action expired (see Davis v Isaacson, Robustelli, Fox, Fine, Greco & Fogelgaren, 258 AD2d 321, 321;Goicoechea v Law Offs. of Stephen R. Kihl, 234 AD2d 507, 508). Here, the plaintiff’s underlying personal injury action accrued on November 27, 2006, when the accident occurred, and the statute of limitations expired three years later, on November 27, 2009 (see CPLR 214[5]). Thus, this legal malpractice action accrued on November 27, 2009, and the statute of limitations expired three years later, on November 27, 2012. This action was commenced on November 15, 2012. Therefore, this action was not time-barred.”