Xiuwen Qi v Hang & Assoc., PLLC 2024 NY Slip Op 33089(U) September 3, 2024 Supreme Court, New York County Docket Number: Index No. 151821/2023 Judge: Mary V. Rosado is a legal malpractice case arising from a wage and hour case which was dismissed for two reasons. The most immediate was the failure to attend a court conference. The more pervasive reason is “failing to abide multiple discovery orders.”

When a second attorney took over, the “successor counsel” issue arose. Where a successor attorney takes over the case, it is required that the successor attorney fix those problems that can be fixed. Legal malpractice claims against the first attorney are only viable where the successor counsel could not fix the problem.

“This is a legal malpractice action which Plaintiff Xiuwen Qi has asserted against his former attorneys (NYSCEF Doc. 2). Defendants/Third-Party Plaintiffs represented Plaintiff in a wage and hour lawsuit (see Xiuwen Qi v Famous Sichuan New York Inc., Index No. 656826/2019) (the “Dismissed Action”). After failing to abide multiple discovery orders, Plaintiff, while represented by Defendants/Third-Party Plaintiffs, had his case dismissed. A motion seeking to restore Plaintiffs case to the trial calendar and to vacate Plaintiffs default was ultimately denied for failure to provide a reasonable excuse and meritorious defense.
Plaintiff then retained Third-Party Defendants to represent him in the instant malpractice action and to prosecute his wage and hour claims in a new action (see Xiuwen Qi v Famous Sichuan New York Inc., Index No. 650984/2022) (the “New Action”). The New Action faced a motion for summary judgment based on the statute of limitations and the judge presiding in that case ruled that any claims accrued prior to March 2, 2016 were barred by the statute of limitations. There remains pending in the New Action a motion to renew based on clarification of the impact Governor Cuomo’ s Covid-19 Emergency Executive Orders had on the statute of limitations.”

“The Court finds that the allegations regarding failing to raise the Covid-19 toll, prior to it being settled law in the First Department, and while a motion to renew is sub Judice, cannot serve as a basis for a contribution claim against Third-Party Defendants. As a preliminary matter, these allegations are not ripe for adjudication as there remains a pending motion to renew, where Third­ Party Defendants brought to the Court’s attention the application of the Covid-19 toll once the case law was settled in the First Department (Parent Teacher Ass ‘n of P.S. 124M v Board of Educ. Of City School Dist. Of City of New York, 138 AD2d 108 [1st Dept 1988] [controversy cannot be ripe if claimed harm may be prevented or significantly ameliorated by further administrative action]).
It is total speculation that Plaintiff has been damaged as Plaintiff has not yet been definitively barred from having some of his claims restored pursuant to the Covid•19 toll (Pellegrino v File, 291 AD3d 60, 63 [1st Dept 2002], lv denied 98 NY2d 606 [2002]).
Moreover, the statute of limitations is mandatory and not discretionary, and as the law in the First Department regarding application of the Covid-19 toll has now been settled, Plaintiffs claims will likely be restored in the New Action (see Murphy v Harris, 210 AD3d 410 [1st Dept 2022]). Thus, Defendants/Third-Party Plaintiffs claims for contribution arising out of alleged malpractice for failure to raise the Covid-19 toll are dismissed.”