One familiar trope in legal malpractice cases is the workers’ compensation – personal injury situation in which a plaintiff is injured on the job, but may have claims against non-employers as well as against the employer.  Schwenger v Weitz, Kleinick & Weitz, LLP 2019 NY Slip Op 2605(U) September 4, 2019 Supreme Court, New York County Docket Number: 159856/2018 Judge: Robert D. Kalish is a varient of that issue.  He was determined to be an employee.  However, there was overlap between his WC counsel, his personal injury counsel and his later appellate counsel.  After the appeal, who was the attorney and who let the WC case lapse?

“Based upon the instant motion papers, there appears to be no dispute that the underlying action was initially brought in Supreme Court, New York County, in 2003. From early on it apparently became clear that a significant issue in the underlying action concerned whether Plaintiff was an employee of NYU such that his exclusive remedy would be pursuant to the Workers’ Compensation Law (the “applicability issue”). According to Mittman Defendants, they were retained by Defendant Paul B. Weitz, Esq. and Defendant Weitz, Kleinick & Weitz, LLP (“Weitz Firm”) (collectively, “Weitz Defendants”), sometime in 2004, to litigate the applicability issue.

There is no dispute that between 2004 and 2011, Mittman Defendants made multiple appearances before the Workers’ Compensation Board to litigate the applicability issue. There also appears to be no dispute that on or about March 2013, the full panel of the Workers’ Compensation Board issued a decision (the “2013 Decision”) determining that there was an
employee-employer relationship between Plaintiff and NYU and, as such, Plaintiffs exclusive remedy was through the Workers’ Compensation Law. There also appears to be no dispute that shortly after the 2013 Decision, Mittman and Plaintiff communicated via e-mail, wherein Mittman expressed to Plaintiff that Plaintiffs only recourse was to take an appeal before the Appellate Division, Third Department; and Mittman further  communicated that he was “not in a position” to perfect such an appeal on Plaintiffs behalf. (See Mittman Aff. in Supp. if 14-20; Schwenger Aff. in Opp. iii! 13-20, Ex. F [March 2013 Email Exchange].) The parties further agree that Plaintiff filed a notice of appeal pro se before the Third Department and was eventually represented by separate counsel in said appeal. (Id.) ”

“On the instant motion, Mittman Defendants have established prima facie that the instant action against them is barred by the statute of limitations. The alleged malpractice by Mittman Defendants-purportedly mishandling the applicability issue before the Workers’ Compensation Board-happened no later than March 2013.

The Court finds that Plaintiffs argument that the statute of limitations was tolled, pursuant to the continuous representation doctrine, is unavailing. Here, there is no dispute that from March 2013 to present, Mittman Defendants were not representing Plaintiff with respect to
a specific legal matter. As such, that Plaintiff may have called Mittman Defendants in August 2016 or that Mittman Defendants may have arguably been listed as counsel of record before the Workers’ Compensation Board is insufficient to raise an issue of continuous representation.

Further, there is no dispute that Mittman Defendants communicated to  Plaintiff that they were not in a position to continue their  representation of Plaintiff in the appeal of the 2013 Decision before the Third Department and that Plaintiff found new counsel to represent him thereafter. As such, there was no reasonable basis for Plaintiff to conclude that Mittman Defendants were still actively involved in Plaintiffs claim.

As such, the complaint must be dismissed as against Mittman Defendants.”