OK, so the client comes into the office, and you think you might take the case.  Then, after further thought, you think you might not take the case.  What do you do?  How do you do it?  Lindsay v Pasternack Tilker Ziegler Walsh Stanton & Romano LLP  2015 NY Slip Op 04819  Decided on June 10, 2015  Appellate Division, Second Department is an example of how not to disengage.

“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. ”

“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.”

“Here, the evidence submitted by the defendant failed to establish that the plaintiff has no cause of action. The evidence did not show that the letter dated June 8, 2007, was sent by certified mail return receipt requested, since the certified mail receipt was never filled out and there was no return receipt submitted. With respect to regular mail, “[t]he mere assertion that notice was mailed, supported by someone with no personal knowledge of the mailing,” in the absence of proof of office practices to ensure that the item was properly mailed, does not give rise to the presumption of receipt (Washington v St. Paul Surplus Lines Ins. Co., 200 AD2d [*3]617, 618; see Nassau Ins. Co. v Murray, 46 NY2d 828, 829; TD Bank, N.A. v Leroy, 121 AD3d 1256, 1258; Long Is. Sports Dome v Chubb Custom Ins. Co., 23 AD3d 441, 442). CPLR 2103(f)(1) defines mailing as “the deposit of a paper enclosed in a first class postpaid wrapper, addressed to the address designated by a person for that purpose or, if none is designated, at that person’s last known address, in a post office or official depository under the exclusive care and custody of the United States Postal Service within the state.” Here, while the defendant’s former attorney averred that she “sent” the letter dated June 8, 2007, by regular mail, she did not state that she deposited the letter in a United States Post Office depository. Since the defendant’s evidence failed to establish that a material fact as claimed by the plaintiff, namely, the existence of an attorney-client relationship, was “not a fact at all” and that “no significant dispute exists regarding it” (Guggenheimer v Ginzburg, 43 NY2d at 275), the Supreme Court properly denied that branch of the defendant’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint.”