Bianco v Law Offs. of Yuri Prakhin, 2020 NY Slip Op 07849 [189 AD3d 1326]
December 23, 2020 Appellate Division, Second Department tells a familiar legal malpractice story. Plaintiff slips and falls on ice on subway steps in NYC. Attorneys hired by her successfully file a Notice of Claim against NYC, but do not file against the NYCTA. Service of a Notice of Claim is a condition prerequisite to suing the NYCTA. Case goes on to attorney B and attorney C.
“The plaintiff allegedly slipped and fell on ice on a subway staircase in Brooklyn on January 21, 2014. Shortly thereafter, she retained the defendants Law Office of Yuriy Prahkin and Yuriy Prahkin (hereinafter together the Prahkin defendants) to represent her in a personal injury action relating to the fall. The Prahkin defendants served a timely notice of claim on the City of New York, but failed to do so with respect to the New York City Transit Authority (hereinafter NYCTA). In July 2014, the plaintiff retained the defendants Schneider Law Group and William Z. Schneider (hereinafter together the Schneider defendants) as successor counsel to the Prahkin defendants. The Schneider defendants, in turn, retained the defendants Steven C. Kletzkin, PLLC, and Steven C. Kletzkin (hereinafter together the Kletzkin defendants) as trial counsel representing the plaintiff in an action against the NYCTA.
[*2] In February 2015, the Schneider defendants served an untimely notice of claim upon NYCTA. In March 2015, the Kletzkin defendants commenced an action on the plaintiff’s behalf against the NYCTA to recover damages for the personal injuries she allegedly sustained as a result of the slip and fall. In an order dated April 15, 2016, the Supreme Court granted the NYCTA’s motion to dismiss the complaint in the personal injury action against the NYCTA “with prejudice, and no opposition submitted thereto.”
There is no mystery in the legal malpractice claims. The mystery resides in how a Judiciary Law 487 claim survives. The Court does not elucidate.
“Contrary to the Kletzkin defendants’ contention, the complaint adequately states a cause of action to recover damages for violation of Judiciary Law § 487. Contrary to the Schneider defendants’ contention, the cause of action alleging violation of Judiciary Law § 487 is not duplicative of the cause of action alleging legal malpractice. “A violation of Judiciary Law § 487 requires an intent to deceive (see Judiciary Law § 487), whereas a legal malpractice claim is based on negligent conduct” (Moormann v Perini & Hoerger, 65 AD3d 1106, 1108 ; see Bill Birds, Inc. v Stein Law Firm, P.C., 164 AD3d 635, 637 , affd 35 NY3d 173 ).”