One Edgewater Equities LLC v Law Firm of Hall & Hall LLP 2022 NY Slip Op 31919(U) June 16, 2022 Supreme Court, New York County Docket Number: Index No. 158110/2021 Judge: Barry R. Ostrager stands for the simple proposition that the failure to file a notice of appeal is a departure from good practice, and successor attorney, who came into the case long after the 30 day notice of appeal period had passed cannot be blamed.
“The Court declines to dismiss the first cause of action for legal malpractice against the three defendants. It is undisputed that neither the associate nor anyone else at the firm filed a
Notice of Appeal to preserve the client’s rights, which was well within the scope of the Retainer Agreement. Efforts by successor counsel were limited as a result to motions before the same trial judge who had sua sponte issued the restraint, which was subject to a different standard than the standard for an appeal. While it is unclear whether plaintiff can ultimately prove that they would have prevailed “but for” the alleged malpractice of the defendants, enough has been shown at the pleading stage. Since the motion was on notice, the decision that included the restraint could have been challenged on appeal. And successor counsel was ultimately able to get the restraint vacated. However, successor counsel could not pursue a prompt appeal of the August 31, 2018 order because he was not substituted in until April 8, 2019, well beyond the 30-day deadline to file a notice of appeal. Nor can the Court find as a matter of law at this stage of the litigation that the manner in which successor counsel litigated the case was an “intervening cause” that relieved the Hall firm of liability. Damages have been sufficiently stated at the pleading stage. Therefore, based on the liberal construction of the pleadings and defendants’ failure to produce documentary evidence that establishes a defense as a matter of law, dismissal of the claim is not warranted and plaintiff can pursue discovery. Leon v Martinez, 84 NY2d 83, 87-88 (1994). “