It’s our last blog for the year, and it is a classic situation.  We leave you ’till January with this story.

Copeny v George T. Peters, PLLC  2016 NY Slip Op 32501(U)  December 16, 2016  Supreme Court, Kings County  Docket Number: 501818/14  Judge: Larry D. Martin is all about a car accident, and the selection of the absolutely wrong court, coupled with what appears to be a poor application to get into the right court.  Note how current plaintiff’s attorney deftly stayed out of the mess, and then came in to sweep up.

“This action arises from defendants’ representation of plaintiff Tarsheema M. Copeny (“plaintiff’) in an underlying personal injury action. On or about July 17, 2012, plaintiff was in an automobile accident involving a vehicle operated by plaintiff and a vehicle owned by New York Office of Children and Family Services (“OCFS”) and operated by Michael Jackson (“Jackson”), an OCFS employee.  Plaintiff then retained defendants to represent her.  On or about May 7, 2013 defendants filed a summons and complaint, on behalf of plaintiff, against OCFS and Jackson under Index No. 502376 in the Kings County Supreme Court (the “underlying personal injury action”). Subsequently, defendants learned that claims against OCFS had to be made in the Court of Claims. Thereafter, on or about, June 6, 2013, defendants filed a stipulation of discontinuance dated May 31, 2013 with the Kings County Supreme Court for the discontinuance of the underlying personal injury action. On or about August 12,2013, defendants, on behalf of plaintiff, filed a motion for permission to file a late claim against OCFS in the Court of Claims. By letter dated August 20,2013, plaintiff, among other things, terminated defendants’ services on her behalf and advised that she had retained the law firm Sinel & Associates, PLLC to represent her. By decision and order (Soto, J.) dated October 7,2013, the motion for permission to file a late claim against OCFS was denied in the Court of Claims. By letter dated February 27, 2015, Sinel & Associates, PLLC advised defendants that they would not be substituting in as counsel in the underlying personal injury action. On or about March 3, 2014, plaintiff commenced the instant action against defendants asserting causes of action sounding in legal malpractice. Defendants now move for the relief requested herein.”

“The Court notes that plaintiff’s current counsel, Sinel & Associates, PLLC, treats the instant motion as one for dismissal pursuant to CPLR 3212 rather than dismissal pursuant to CPLR 3211. Plaintiff also requests that the instant motion be converted into one for summary judgment and, upon conversion, she be granted judgment as a matter of law on her claims in the complaint. Pursuant to CPLR 3211, the Court, upon adequate notice to the parties, may treat a CPLR 3211 (a) motion to dismiss as a motion for summary judgment where the parties deliberately chart a summary judgment course (see CPLR 3211 [c]; see Mihlovan v Grozavu, 72 NY2d 506, 508 [1988]; compare Kaplan v Roberts, 91 AD3d 827, 828 [2d Dept 2012]). The Court declines to grant plaintiff’s request to convert the instant motion to one for summary judgment and, upon conversion, granting judgment as a matter of law in her favor. Nevertheless, based upon a review of the record submitted by the parties and the relevant law, the Court denies defendants’ motion to dismiss. Here, plaintiff alleges in the complaint that defendants breached the duty of care by, among other things, (1) failing to file a notice of intention to file a claim with the Court of Claims within the statutory 90-day time period, (2) failing to timely move for permission to file a late notice of claim pursuant to Court of Claims Act Article II, Section 10 (6) and (3) failing to submit an affidavit from plaintiff establishing that she has a valid cause of action or to submit any medical records regarding her claims pursuant to Insurance Law 9 5102 (d) (Complaint, ¶ 27). As a result, plaintiff claims that she would have been able to “prove[]a case of liability” against OCFS and Jackson and also that her claims in the Court of Claims would not have been dismissed leaving her “no remedy at law for her personal injuries” (Complaint, ~ 28). The Court finds that these claims are sufficient to state a cause of action for legal malpractice (see CPLR 32 I I [a][7]). As such, that branch of defendants’ motion to dismiss the complaint for failure to state a cause of action is denied. Moreover, the documents submitted by defendants did not conclusively establish a defense as a matter of law. Defendants’ submissions fail to utterly refute plaintiffs allegations so as to warrant dismissal of the complaint herein (see CPLR 321 I [a][I]; see also Randazzo, 128 AD3d at 937). Plaintiff correctly points out that Jackson was never served with the summons and complaint in the underlying personal injury action. In addition, a review of the Court’s record indicates that a request for judicial intervention was never filed in the underlying personal injury action. In this regard, that branch of defendants’ motion to dismiss the complaint on the grounds of documentary evidence is denied.”