We reported on this case when Supreme Court denied dismissal. Now the AD has affirmed in Postiglione v Sacks & Sacks, LLP 2024 NY Slip Op 06070 Decided on December 4, 2024.

“In an action to recover damages for legal malpractice, the defendants appeal from an order of the Supreme Court, Kings County (Karen B. Rothenberg, J.), dated January 19, 2022. The order, insofar as appealed from, denied that branch of the defendants’ motion which was pursuant to CPLR 3211(a) to dismiss the amended complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

In April 2016, the plaintiff James Postiglione (hereinafter the injured plaintiff) allegedly was injured while working as an independent contractor at a site owned and maintained by the United States Government and the United States National Park Service (hereinafter NPS). Shortly thereafter, the plaintiffs retained the defendant Daniel Weir and his law firm, the defendant Sacks & Sacks, LLP, to represent them, and the defendants commenced a personal injury action in New York State Supreme Court against, among others, the City of New York, which did not own, occupy, or control the site where the accident allegedly occurred. However, the defendants did not commence an action against the United States Government.

In 2019, the plaintiffs commenced this action against the defendants to recover damages for legal malpractice. Thereafter, the plaintiffs served an amended complaint, which alleged, inter alia, that a certain NPS employee told the injured plaintiff to walk only on the concrete path where the accident allegedly occurred and that the defendants committed legal malpractice by failing to commence a lawsuit against the United States Government. The defendants moved, among other things, pursuant to CPLR 3211(a) to dismiss the amended complaint. In an order dated January 19, 2022, the Supreme Court, inter alia, denied that branch of the motion. The defendants appeal.”

“Here, accepting the facts alleged in the amended complaint as true, and according the plaintiffs the benefit of every possible favorable inference, the amended complaint sufficiently states a cause of action to recover damages for legal malpractice. Moreover, the documentary evidence submitted by the defendants in support of their motion failed to utterly refute the factual allegations in the amended complaint. Contrary to the defendants’ contentions, their evidence failed to conclusively establish that the independent contractor exception or the discretionary function exception to the FTCA’s waiver of sovereign immunity applied to bar the plaintiffs’ potential claim against the United States Government (see generally Haskin v U.S., 569 Fed Appx at 15; Andrulonis v U.S., 952 F2d 652, 655 [2d Cir]; Esgrance v United States, 2018 WL 2943222, *2, 2018 US Dist LEXIS 97911, *3-6 [SDNY, No. 17-CV-8352 (JPO)]; Lanzilotta v U.S., 1998 WL 765143, *5 [EDNY, No. 95-CV-5334 (JG)]). The defendants’ contention that the United States Government cannot be liable under the Federal Tort Claims Act for an alleged negligent misrepresentation is not properly before us, as it was raised for the first time at oral argument.”