Protostorm, Inc. v Foley & Lardner LLP, 2022 NY Slip Op 01107, Decided on February 17, 2022, Appellate Division, First Department is a short decision concerning a small act with big consequences. Waiver of “joint and several liability” may have taken place in the pleading or during the litigation. In either case, it seems to have doomed collection of full damages from the defendants. Imagine a verdict against natural persons and against LLCs where liability is apportioned and the LLC has no assets.
“In this legal malpractice action, Supreme Court correctly denied defendants’ motion to dismiss the complaint. Plaintiff sufficiently alleges that, but for defendants-attorneys’ negligence in waiving joint and several liability against certain individual defendants in a federal action, plaintiff was unable to collect on the judgment in that action (see generally Hadden v Consolidated Edison Co. of N.Y. , 45 NY2d 466, 470 [1978]). Defendants’ argument that the District Court’s ruling in that action was a superseding cause of plaintiff’s injury is unavailing (compare Pyne v Block & Assoc. , 305 AD2d 213 [1st Dept 2003]).”