It’s often said (and the PJI specifically covers this) that an attorney is not a guarantor of a good result. The attorney has to use reasonable efforts and not to depart from the standard of practice. Lopez v Pasternack, Tilker, Ziegler, Walsh, Stanton & Romano, LLP
2024 NY Slip Op 30318(U) January 18, 2024 Supreme Court, Kings County Docket Number: Index No. 514717/2023 Judge: Richard J. Montelione is a decision highlighting that principle.
” On or about February 11,2014, Decedent Alba Morales hired defendant Pasternack, Tilker, Ziegler~ Walsh, Stanton &Romano; LLP (”the Pasternack Firm”) to represent her in connection with her Workers’ Compensation claims. Defendant Matthew Funk, Esq. was the primary attorney handling her case. The complaint alleges that the Pasternack Firm and defendant Funk held themselves out to be experts in the field of Workers’ Compensation claims.
Ms. Morales’ Workers’ Compensation claims against her former employer Graphnet, Inc arose out of her September 200l work, related injuries and/or illness, Ms. Morales was employed by Graphnet,1nc. in September2001 to clean debris and ashes in buildings neat the World Trade Center in the wake of the September 11, 2001 attacks. Consequently. Ms. Morales developed gastroesophageal reflux disease (“GERD “) and interstitial lung disease.”
“Defendants submitted the Section ‘.32 Agreement to the Workers’ Compensation Board on April 15, 2019. A Workers’ Compensation hearing Was held on July 22. 2019 before Judge Schwartz. Judge Schwartz disapproved the Settlement without preJudice to return the case to the calendar once Ms. Morales obtained the requisite Letter from the World Ttade Center Health Program (“WTCHP”). Ms. Morales passed away on July30, 2020 due to her work-related iJlness. Plaintiff states in the complaint that upon Ms. Morales’ death, she was no longer eligible to receive compensation for the Section 32 Agreement, as she was no longer receiving medical care
The complaint alleges that defendants’ failure to obtain the Letter and finalize the settlement prior· to Ms. Morales’ death constituted a deviation from the good and accepted standards of legal practice in litigating Ms. Morales Workers’ Compensation Claim. However, the record shows that defendants made numerous attempts to obtain the Letter from the WTCHP. On the day of the hearing, July 22, 2019 Fischer Brothers, Esqs. ; the firm representing Graphnet; LLC and their insurance company, expeditiously sent a letter to the WTCHP requesting the Letter and sent a copy of said request to defendants (NYSCEF #8}. Defendants followed up. with Fischer Brothers, Esqs. via email om October 18, 2019 inquiring as to status of the letter (NYSCEF #9). An attorney from Fischer Brothers; Esq. and a:n attorney from the Pasternak’s Firm, Rochelle Jean-Baptiste (“Mr. Jean-Baptiste;;), confirmed via email that they would attempt to call the WTCHP regarding the letter (NYSCEF #9)”
“Accordingly; accepting the allegations in the complaint as true; and the additional facts by undisputed documentary evidence of the. attempts to obtain the Letter, plaintiff fails to state a cause of action for legal malpractice as there are no facts that show that defendants did not exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, that their breach proximatey caused the settlement to not be finalized, and that Ms. Morales’ damages were actual and ascertainable, Marinelli v. Sullivan Papa in Block, McGrath& Cannavo, P.C., supra.”