Guzman-Martinez v Rosado 2025 NY Slip Op 01483 Decided on March 14, 2025
Appellate Division, Fourth Department makes a bold statement on the question of whether an attorney who is hired after the time to serve notice of an injury pursuant to General Municipal Law 50-e has passed can still be held responsible for failing to move for leave to file a late notice of claim under section 50-e(5). Many have argued in the past that success on a motion seeking leave is “speculative.” This AD decision says that it is a question for the trier of fact.

“Memorandum: In this legal malpractice action, plaintiff seeks damages for the alleged negligence of defendant with respect to his representation of plaintiff in connection with a personal injury action stemming from an incident where she fell inside a Niagara Frontier Transit Authority bus. Plaintiff alleges, inter alia, that defendant negligently informed her about the duration of the statute of limitations applicable to her personal injury claim and that he, concomitantly, failed to diligently and skillfully prosecute and protect her rights arising out of the accident. Defendant moved, inter alia, to dismiss the complaint for, in effect, failure to state a cause of action (see CPLR 3211 [a] [7]), and plaintiff cross-moved to enforce the parties’ purported stipulation in open court settling the action (see CPLR 2104). Defendant appeals from an order that, inter alia, denied the motion, granted the cross-motion, and awarded plaintiff costs.”

“Defendant also contends that the court erred in denying the motion insofar as it sought to dismiss the complaint for failure to state a cause of action. We reject that contention with respect to the first cause of action, for legal malpractice. It is well settled that “[t]o establish a cause of action for legal malpractice, a plaintiff must prove (1) that the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, (2) proximate cause, (3) damages, and (4) that the plaintiff would have been successful in the underlying action had the attorney exercised due care” (Harvey v Handelman, Witkowicz & Levitsky, LLP, 130 AD3d 1439, 1441 [4th Dept 2015] [internal quotation marks omitted]; see Leder v Spiegel, 9 NY3d 836, 837 [2007], cert denied 552 US 1257 [2008]; Santaro v Finocchio [appeal No. 2], 221 AD3d 1489, 1490 [4th Dept 2023]). On a motion pursuant to CPLR 3211 (a) (7), a cause of action for legal malpractice is properly dismissed where the conduct alleged in the complaint, “even if accepted as true[,] does not establish negligence” (Leder, 9 NY3d at 837; see generally Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 847 [2d Dept 2012], lv denied 20 NY3d 857 [2013]).

Here, we conclude that, giving the complaint “a liberal construction, accept[ing] the allegations as true and accord[ing] . . . plaintiff every possible favorable inference” (Chanko v American Broadcasting Cos. Inc., 27 NY3d 46, 52 [2016]), plaintiff stated a cause of action for legal malpractice by alleging that defendant made erroneous statements about the applicable statute of limitations with respect to her personal injury case, which resulted in her failing to timely commence that action. We reject defendant’s argument that he could not be negligent, as a matter of law, because when plaintiff retained him as her attorney, the time to file the requisite notice of claim had expired (see Public Authorities Law § 1299-p; see also General Municipal Law § 50-e). Indeed, we reject defendant’s assertion that any failure on his part to file a motion for leave to file a late notice of claim was not negligent, as a matter of law, on the basis that there was no guarantee of success on such a motion. To the contrary, we conclude that at the time he was retained by plaintiff, defendant “had an opportunity to protect plaintiff’s rights by seeking discretionary leave, pursuant to General Municipal Law § 50-e (5), to serve a late notice of claim” (Liporace v Neimark & Neimark, LLP, 162 AD3d 570, 570 [1st Dept 2018]; see Phillips v Moran & Kufta, P.C., 53 AD3d 1044, 1045 [4th Dept 2008]). Whether defendant “would have prevailed on such motion will have to be determined by the trier of fact” (Liporace, 162 AD3d at 570), and should not be resolved on this motion to dismiss where plaintiff has alleged that defendant was negligent in failing to “diligently and skillfully . . . protect[ ] the rights of plaintiff[ ] arising out of the accident.” We therefore conclude that the allegations in the complaint sufficiently state a cause of action for legal malpractice based on defendant’s alleged errors with respect to the statute of limitations.”