There can be liability for negligent referrals to other attorneys, and there can be vicarious liability for the acts of attorneys who are hired together or at the behest of one another. Moncho v Miller 2021 NY Slip Op 06960
Decided on December 14, 2021, Appellate Division, First Department makes this point.
“Plaintiff 261 East 78 Realty Corp. (Realty) commenced a bankruptcy proceeding on December 6, 2011. On January 4, 2013, Realty retained defendants Pasternak and DelBello to represent it in the proceeding. Plaintiffs then commenced this action, asserting claims for, inter alia, fraud and legal malpractice against defendants Pasternak and DelBello arising out of their representation of Realty in the bankruptcy proceeding.”
“The ninth cause of action alleges malpractice based on Pasternak’s breach of his duty of loyalty to plaintiffs. “It is well settled that the [attorney-client] relationship imposes on the attorney the duty to deal with undivided loyalty”] (Ulico, 56 AD3d at 9 [internal quotation marks and some brackets omitted]).
The vicarious liability claim against DelBello should not be dismissed. DelBello does not dispute that it employed Pasternak or that Pasternak was acting within the scope of his employment (see Riviello v Waldron, 47 NY2d 297, 302 ). Its only argument is that it cannot be vicariously liable if all claims against Pasternak are dismissed. In view of our reinstatement of some claims against Pasternak, this argument is unavailing.
By contrast, the negligent supervision claim against DelBello cannot proceed, because DelBello will already be held liable for damage caused by any negligence of Pasternak, who was acting within the scope of his employment (see Weinberg v Guttman Breast & Diagnostic Inst., 254 AD2d 213 [1st Dept 1998]; Segal v St. John’s Univ., 69 AD3d 702, 703 [2d Dept 2010]).”