In a stark turnabout, Gross v Aronson, Mayefsky & Sloan, LLP
2019 NY Slip Op 32972(U) October 9, 2019 Supreme Court, New York County
Docket Number: 153274/2017 Judge: Anthony Cannataro illustrates the compelling defense given to prior counsel when successor counsel takes over and fails to fix a problem facing the first attorney. If the problem is not solved, it is for one of two reasons. Either the problem cannot be solved (i.e. no attorney malpractice by either) or it could have been solved, but the second attorney failed. In either factual setting, the first attorney may be off the hook.
“Defendant provides new information that materially alters this Court’s decision on both remaining causes of action. In support of its motion to renew the second cause of action, defendant relies on transcripts from a separate proceeding in which a referee recommend that a judgment be entered in plaintiff’s favor for outstanding expenses through December 2018 in the amount of $109,916.18. As this judgment includes the
extracurricular and nanny expenses at issue in the second cause of action, it represents a new and material fact that warrants renewal. Where documentary evidence establishes that successor counsel had sufficient time and opportunity to adequately protect plaintiff’s rights, prior counsel’s alleged negligence cannot be considered a proximate cause of plaintiff’s alleged damages (Maksimiak v Schwartzapfel Novick Truhowsky Marcus,
P.C., 82 AD3d 652, 652 [1st Dept 2011]). Upon renewal the Court finds that as successor counsel obtained a judgment covering the exact expenses that defendant allegedly failed to recover, defendant’s failure to seek such expenses cannot be a proximate cause of her damages and therefore plaintiff’s second cause of action must be dismissed. “