Siegel v Melito & Adolfsen, P.C. 2023 NY Slip Op 31373(U) April 14, 2023
Supreme Court, New York County Docket Number: Index No. 152781/2022
Judge: Dakota D. Ramseur is a primer on how to avoid a statute of limitations problem in a legal malpractice setting when a claim against the first of several attorneys may become stale while waiting for the outcome of the underlying action.

“Plaintiff, Florence Siegel (plaintiff), commenced this action for malpractice against
defendants, Melito & Adolfsen, P.C. (Melito & Adolfsen.), Louis Adolfsen, Esq. (Adolfsen),
Steven Lewbel, Esq. (Lewbel) (collectively, the moving defendants), W. John Weir, Esq. (Weir) and Weir & Associates (Weir Associates), stemming from their alleged failure to file a timely notice of claim concerning a pending action commenced by plaintiff in Supreme Court, New York County, entitled Siegel v City of New York, et al., Index No. 156682/2018 (the pending action). Defendants now moves pursuant to CPLR 3211 (a)(l) and (7) to dismiss the amended complaint. Plaintiff opposes the motion and cross-moves pursuant to CPLR 2201 to stay the action pending the determination of the pending action. For the following reasons, the moving defendants’ motion is denied, and plaintiff’s cross-motion is granted in part.”

“On January 26, 2023, defendants in the pending action, New York City Transit Authority
and Manhattan and Bronx Surface Transit Operating Authority, filed a notice of motion to dismiss the complaint pursuant to General Municipal Law § 50-e, on the grounds that the notice of claim is untimely, insufficient, inaccurate, and fatally defective. Those defendants specifically argue that the notice of claim was “stamped received by personal service on November 8, 2017 at 4: 15 p.m. The Notice of Claim was filed on the 91st day and beyond the ninety day period for filing a Notice of Claim” (pending action, NYSCEF doc. no. 83 at ,i 4). The motion is marked as submitted and a decision is imminent.”

“The moving defendants fail to demonstrate that the documentary evidence utterly refutes plaintiff’s allegations that the notice of claim was not timely filed or that they were not negligent for failing to amend or refile the notice of claim. The documentary evidence submitted by defendants consists of the NYCTA Accident Report, the original notice of claim, the letter from NYCTA objecting to the notice of claim, a transcript of the NYCTA 50-h hearing and an email from Associates concerning the NYCTA letter. Plaintiff’s accident occurred on August 9, 2017 and the notice of claim was marked as received on November 8, 2017-ninety-one days from the date of plaintiff’s incident. None of the aforesaid documents refute plaintiff’s allegation that the notice of claim was untimely filed.

In addition, there is no second notice of claim, which the moving defendants contend
was filed by plaintiff. The subject email, dated January 23, 2018, indicates that the refiling of the notice of claim was done. In her cross-motion papers, plaintiff states that there is no record of this second notice of claim, apparently denying any involvement in the alleged refiling. In the absence of a second notice of claim, there is no conclusive proof from the evidence that the filing of the notice of claim was timely.”

“Plaintiffs cross-motion for a stay in this action pending the outcome of the pending
action is granted and the moving defendants’ motion is denied. Pursuant to CPLR 2201, “the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just.” A court may grant a stay where the determination in one action may dispose or limit issues in a separate action (Uptown Healthcare Mgmt., Inc. v Rivkin Raddler LLP, 116 AD3d 631 [1st Dept 2014]; SSA Holdings LLC v Kaplan, 120 A.D.3d 1111 [1st Dept 2014]). An outcome in the pending action would resolve issues in this action, including the issue of whether plaintiff was damaged because of defendants’ alleged negligence (see Corrado v Rubine, 25 AD3d 748 [2d Dept 2006] [“Furthermore, since some or all of the components of the damages alleged by the plaintiff may ultimately be addressed in the divorce action, the Supreme
Court improvidently exercised its discretion in denying the plaintiffs cross motion for a stay of all proceedings pending the resolution of that action”]; Belopolsky v Renew Data Corp., 41 AD3d 322, 323 [1st Dept 2007] [granting stay of action where, “the determination of the prior action may dispose of or limit issues which are involved in the subsequent action”] [internal citations omitted]; 187 Street Maza! Manager, LLC v Herrick Feinstein LLP, Sup Ct, New York County, March 11, 2020, Sherwood, J., index no. 158840/2018 [“As any determination of whether the alleged negligence was the proximate cause of plaintiffs’ losses, and whether plaintiffs suffer losses related to the ownership of the property, will be informed by the outcome of the Property Actions, this court will use its discretion to stay this action pending resolution of the Property Actions”]; Emamian v. Liddle & Robinson, L.L.P., Sup Ct, New York County, December 12, 2014, Wooten, J., index no 153144/2014 [staying the legal malpractice action where a resolution in favor of the plaintiff in the pending Federal action may limit the damages
sought against the defendants]). Here, a decision on the motion to dismiss in the pending action may resolve issues in the instant matter. To wit: whether plaintiff was damaged by defendants’ alleged negligence. Thus, the Court exercises its discretion to stay this matter until the resolution of the motion to dismiss the complaint in the pending action.”