Postiglione v Sacks & Sacks, LLP  2022 NY Slip Op 30148(U) January 19, 2022 Supreme Court, Kings County Docket Number: Index No. 513779/19 Judge: Karen B. Rothenberg is an interesting case, both for its complexity as well as for the level of scrutiny given by the Court in these two CPLR 3211 pleading sufficiency motions.  It involves a lost construction accident case involving the US Government.

“Plaintiff James Postiglione (Postiglione) and his wife, Joni Postiglione (collectively plaintiffs), commenced this legal malpractice action against their former attorneys for allegedly failing to sue the proper parties after Postiglione was injured on April 13, 2016 while working at a construction site at Floyd Bennett Field in Brooklyn (Hangar B or the site). Postiglione was injured when a second-floor concrete floor walkway, upon which he was standing, collapsed. The site is owned by the federal government (government) and managed by the United States National Park Service (NPS). NPS contracted with Nagan Construction (Nagan) to repair storm damage caused by Super Storm Sandy. Nagan, in turn, subcontracted with James Postiglione’s company, Global International Windows, LLC (Global) to remove and install windows at Hangar B. ”

“The original complaint further alleged that prior to ordering windows for the project, Postiglione was allegedly “required” to meet with “Theresa,” an NPS employee, who walked him up to the site and told him where he was and was not permitted to walk while performing work. Prior to starting work, Postiglione was again required to meet with Theresa, who reminded him where he was and was not permitted to walk. Postiglione  allegedly fell in an area where Theresa had not prohibited him from walking but was a location which was not the subject of his window replacement contract. The original complaint alleged that the federal government was aware of the deteriorated condition of Hangar B’s second floor and knew that a subcontractor, such as Postiglione, would have to traverse dangerous areas to perform repairs because the federal government continued to occupy the site while repairs were being made. And that the federal government had a duty to provide a reasonably safe passageway for all invitees, including contract workers, and that it remained liable for the safety of business invitees, as the federal government owned, operated and maintained the site.”

““The doctrine of the ‘law of the case’ is a rule of practice, an articulation of sound policy that, when an issue is once judicially determined, that should be the end of the matter as far as Judges and courts of co-ordinate jurisdiction are concerned” (Erickson v Cross Ready Mix, Inc., 98 AD3d 717, 717 [2d Dept 2012]; Martin v City of Cohoes, 37 NY2d 162, 165 [1975]). “The doctrine applies only to legal determinations that were necessarily resolved on the merits in [a] prior decision” and “to the same questions presented in the same case” (Erickson, 98 AD3d at 717; Baldasano v Bank of N.Y., 199 AD2d 184, 185 [2d Dept 1993]; see also U.S. Bank National Association v Moss, 186 AD3d 1753, 1753 [2d Dept 2020]; State v Winkle, 179 AD3d 1121, 1126 [2d Dept 2020]).

Here, defendants’ motion to dismiss the amended complaint is denied based on the law of the case because the amended complaint contains the same allegations as the original
complaint, which was previously upheld by the court’s 2020 Order. Accordingly, the law of the case doctrine precludes dismissal of the legal malpractice cause of action asserted in
the amended complaint based on defendants’ alleged failure to sue the federal government prior to the expiration of the statute of limitations in the Underlying Personal Injury Action because the very same cause of action in the original complaint was previously upheld by the court.

In addition, the amended complaint includes additional allegations regarding the federal government’s potential liability under the FTCA in the Underlying Personal Injury Action based on the Flash Report, in which the IG noted that the aircraft hangers were not secured, were in disrepair and posed a safety risk to the public and directed the NPS Director to remedy the defect. If plaintiffs can prove that the NPS Director, a federal employee, failed to remedy the defects, and that this failure was the proximate cause of Postiglione’s injuries, then defendants may be liable for legal malpractice. If a federal employee was aware of a dangerous condition and failed to remedy it, such failure to remedy or warn is not a decision “of the nature and quality that Congress intended to shield from tort liability” (United States v S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 US 797, 813 [1984]).”