There are several variants of potential legal malpractice in Butler v inSync Litig. Support, LLC
2016 NY Slip Op 50757(U)  Decided on May 4, 2016  Supreme Court, Nassau County  Brown, J.  The first is pled, the second is noted by the Court.  In short, Plaintiff retains Attorney.  More than one year, but less than three years later, attorney commences an action for Plaintiff, and gives the papers to a litigation support company to serve.  The papers are never served, and the statute lapses.  Is attorney liable?  Does the litigation support company have an out?

“Plaintiffs commenced this action with the electronic filing of a summons and complaint [*2]on December 18, 2015. The complaint alleges that Agulnick engaged InSync to serve a summons and complaint on behalf of Butler upon two of the defendants in Butler v the City of New York, Koledin, et. al., Supreme Court, Queens County, Index Number 703219/2014 (the underlying action). The complaint further alleges that inSync accepted the job, but failed to serve the papers as requested and never had any further communication with Agulnick. The complaint concludes that plaintiffs have been damaged because the underlying action could not be pursued due to the expiration of the statute of limitations after inSync failed to make service. The complaint asserts a cause of action for negligence and a cause of action for breach of contract.

Defendant contends that documentary evidence directly contradicts the allegations of plaintiffs’ complaint. A complaint may be dismissed based upon documentary evidence, pursuant to CPLR 3211(a)(1), only if the factual allegations contained in the complaint are definitively contradicted by the evidence submitted or if the evidence conclusively establishes a defense (Yew Prospect v Szulman, 305 AD2d 588 [2d Dept 2003]; Sta-Brite Servs., Inc. v Sutton, 17 AD3d 570 [2d Dept 2005]). The documentary evidence must utterly refute the factual allegations in the complaint, resolve all factual issues as a matter of law and conclusively dispose of the claims at issue (Yue Fung USA Enters., Inc. v Novelty Crystal Corp., 105 AD3d 840 [2d Dept 2013]).

In support of its motion to dismiss, inSync offers barely decipherable, self-generated records, which indicate that the papers in the underlying action were sent back to Agulnick when inSync was unable to make service on Michael Koledin, the individual defendant in the underlying action. Those documents fail to make any mention of whether inSync made any attempt to serve the City of New York in the underlying action, as requested by Agulnick.”

“inSync contends that plaintiffs fail to state a cause of action against it because Agulnick, as Butler’s lawyer in the underlying action, had a nondelegable duty to prosecute the case, monitor deadlines and meet the filing requirements. In making that argument, inSync relies upon Kleeman v Rheingold (81 NY2d 270 [1993]), in which the Court of Appeals found that an attorney may be held vicariously liable to his or her client for the negligence of a process server whom the attorney has hired on behalf of that client. While the Court of Appeals held that an attorney owes a nondelegable duty to his or her client to exercise care in the service of process, the Court specified that its decision did not consider the right of an attorney who has been held liable for the negligence of a retained process server to pursue whatever contractual or tort remedies that the attorney may have against the process server.

The fact that Agulnick owed a nondelegable duty to Butler to ensure that service of process in the underlying action was properly completed, does not preclude a claim against inSync for its alleged role in the failure to serve such process.^[FN1] The cases cited by defendant in which a client’s initial counsel was granted summary judgment dismissing the legal malpractice claims against it when the client had hired subsequent counsel are inapposite herein.

To survive a motion to dismiss for failure to state a cause of action made pursuant to CPLR 3211(a)(7), plaintiffs need not demonstrate that they actually sustained damages, they need only plead allegations from which damages attributable to defendant’s conduct may reasonably be inferred (Fielding v Kupferman, 65 AD3d 437 [1st Dept 2009]; Mackey Reed Elec., Inc. v Morrone & Assoc., P.C., 125 AD3d 822 [2d Dept 2015]).

The complaint in the underlying action asserts causes of action for: (1) violation of 42 USC § 1983; (2) false arrest/imprisonment; (3) battery; (4) negligence; and (5) negligent hiring and retention. The court would note that since the acts which form the basis of the claims in the underlying action took place in January 2012, the causes of action for false arrest/imprisonment and battery were already time-barred by the applicable one year statute of limitations (CPLR 215[3]) when the underlying action was commenced on May 12, 2014.”