Plaintiff had a collission with a Nassau County bus. Legal representation by the first two attorneys caused him to lose any opportunity to sue. Whom might be responsible?
Buxton v Zukoff 2020 NY Slip Op 33426(U) October 16, 2020 Supreme Court, New York County Docket Number: 160223/15 Judge: Lynn R. Kotler discusses the Notice of Claim, the Motion to file a Late Notice of Claim, Successor counsel rules and a whole lot more.
“In this action, plaintiffs seek to recover for alleged attorney malpractice. Defendants are Seth Zukoff, Esq. and the Law Offices of Seth Zukoff, P.C. (collectively Zukoff), who were plaintiffs’ original attorney. The third-party defendants are the successor law firm, Raphaelson & Levine Law Firm, P.C. (R&L), who also represented plaintiffs. Levine & Grossman (L&G) is plaintiffs’ current attorney and also a third-party defendant. ”
“While there is no dispute that Zukoff failed to file a notice of claim within 90 days of the date of the accident, R&L’s claim that it terminated its representation of plaintiff in September 2013 and therefore it cannot be held liable for either Zukoff’s failures or an attempt to cure Zukoff’s malpractice as speculative is rejected. The court agrees that R&L cannot be liable for Zukoff’s failure to timely file a notice of claim within the 90-day period. However, plaintiffs retained R&L in July 2013 and R&L terminated its representation a mere two months later in September 2013 when it realized that a notice of claim was needed and not filed. Whether R&L would have prevailed on an application to serve a late notice of claim has not been established as a matter of law on this record and therefore will have to be determined by the trier of fact. Davis v Isaacson, Robustelli, Fox, Fine, Greco & Fogelgaren, 284 AD2d 104,
726 NYS2d 86 [1st Dept 2001], lv denied 97 NY2d 613, 742 NYS2d 606 .
The court further rejects R&L’s argument that at Buxton’s deposition, when asked if R&L did anything wrong during the two months in which they represented him, and he responded “no”, is sufficient to prohibit asserting a malpractice claim against them. The question and plaintiff’s response do not conclusively establish that R&L is or is not liable for malpractice. See, Prince, Richardson on Evidence Sec. 8-219, at 529 [Farrell 11th ed]. ”
“First, plaintiffs argue that the court should grant them summary judgment finding that non-party Nassau Inter-County Express (NICE) was liable due to the rear end collision with Buxton under VTL § 1129. Buxton testified at his deposition that his car was stopped because he was stuck in snow and that he got hit in the rear. Defendant Zukoff opposes the motion and contends that plaintiffs are not entitled to a finding of liability against non-party Nassau County Intercounty Express based on the deposition testimony of the non-party bus driver Mathurin Kenold.
The court agrees with Zukoff. The record shows that questions of fact exist precluding a finding of summary judgment. Non-party Kenold testified at his deposition, in relevant part, that “he [Buxton] is the one who caused the accident, because the lane that he tried to pass through is not a moving lane. On the right side of the bus…the tire located behind the door where I am sitting at…”. The incident report by the bus driver notes that he was heading east on Hillside Avenue when Buxton’s vehicle passed on the right side of the bus “slid on the icy road and hit his left mirror”. Kenold’s and Buxton’s versions of how the accident happened are different thereby precluding summary judgment. Based on
the foregoing, that portion of plaintiff Buxton’s motion for summary judgment is denied. Next, L&G argues that summary judgment should be granted finding Zukoff liable for legal malpractice because Zukoff knew that a notice of claim was required against a municipal corporation and that Zukoff failed to file a notice for plaintiff Buxton within the 90 days. Zukoff opposes the motion and argues that L&G had sufficient time and opportunity to protect plaintiff’s rights and that it should have sued the bus company Veolia within the three-year statute of limitations.
While it is undisputed that Zukoff failed to timely file a notice of claim or make an application for leave to file a late notice, it is unknown if plaintiff would have prevailed in the underlying action. The record before the court shows that there are triable issues of fact as to how the accident occurred based on the deposition testimony of both Buxton and the bus driver Kenold that preclude granting summary judgement to L&G on this point. Finally, L&G argues that it should not be a named party in this lawsuit as there was a judicial determination that Levine & Grossman was retained after the 90-day notice of claim period and after the expiration of the one year and ninety-day statute of limitations period and that Zukoff is estopped by “res judicata/collateral estoppel” from making claims against them. L&G further contends that since their firm was not retained until after the 90-day period and the one year and 90-day statute of limitations expired, it cannot be liable for contribution or indemnification.
The court agrees. At the time L&G undertook plaintiffs’ representation, it was beyond the time period to either file a notice of claim or move to file a late notice. Based on the underlying facts of the accident between Buxton and the bus, the timely filing of a notice of claim with the County of Nassau was a condition precedent to any litigation. The court rejects Zukoff’s argument that a three 3-year statute of limitations applies. Moreover, Justice Winslow held that “The law is clear that the statutory notice of claim requirement applies not only to the County, but also to a private corporation that operates Countyowned buses in fulfillment of the County’s statutory duty to operate a public transit stem”. Here, Nassau County owned the bus and was operated by Veolia. L&G could not have filed any corrective motion as both the 90 day and one year and 90-day statute of limitations expired. Based on the foregoing, L&G’s motion is granted and defendant/third party plaintiff Zukoff’s action against it are severed and dismissed.”