This question can have large real world consequences as we see in Park W. Exec. Servs., Inc. v Gallo Vitucci & Klar, LLP 2025 NY Slip Op 31462(U) April 25, 2025 Supreme Court, New York County Docket Number: Index No. 157052/2024 Judge: Paul A. Goetz. In a legal malpractice setting, whether the attorneys “admitted” that a driver was an employee or not is determined not to have matted.

“Plaintiff, Park West Executive Services, (“Park West”) facilitates taxi and limousine drivers to customers in need of transportation (NYSCEF Doc No 1 at ¶ 32). Plaintiffs, United Specialty Insurance Company (“USIC”) and First Mercury Casualty Company (“First Mercury”), are insurance companies who issued policies to First West (id. at 34 – 35). On October 31, 2014, non-party Margaret Rivera, a driver who had a contract with Park West, was involved in a motor vehicle accident (id. at ¶ 42 – 43). As a result of the accident, non-party Ennigier Rivera, suffered injuries and commenced an action for personal injuries in New York State Supreme Court, Bronx County, entitled Ennigier Rivera v. MD. LR. Bhuiyan and Margaret Rivera, under index number 306435/2014 (the “Underlying Action”) (id. at ¶ 44 – 45). Defendants represented Margaret Rivera, Mohammed Bhuiyan (the owner of the car operated by Margaret Rivera), and Park West in the Underlying Action (id. at 46 – 50).

Plaintiffs allege that defendants were negligent in their representation because they the First Department ruled that they admitted that Margaret Rivera was an employee of Park West, thus making them vicariously liable for Margaret Rivera’s negligence. Plaintiffs contend that Margaret Rivera was an independent contractor, and if that argument had successfully been made in the underlying action, then they would not have had to settle that action.”

“Here, plaintiffs’ legal malpractice claim must fail because the damages alleged are purely speculative. Plaintiffs argue that defendants were negligent by, in their motion for summary judgment in the underlying action and the appeal of that decision, admitting that Margaret Rivera was an employee of Park West. In the reply brief submitted by defendants in the Appeal to the Underlying Action, they argue for dismissal of a negligent hiring claim as against Park West, because a negligent hiring claim cannot be maintained against an employer, when the employer
is already liable under the theory of respondeat superior (Ennigier RIVERA, Plaintiff-Respondent, v. Md. Lr. BHUIYAN, Margaret Rivera and Park West Executive Services, Inc., Defendants-Appellants., 2016 WL 11543386, at *12). The First Department ruled that this argument was an admission that Margaret Rivera was an employee of Park West (Rivera v Bhuiyan, 149 AD3d 493, 494 [1st Dept 2017] [“Although Bhuiyan and Park West initially denied in the answer that defendant Rivera was operating the vehicle within the scope of her employment when the accident happened, in their reply affirmation, they concede the issue”]).

However, plaintiffs’ allegations that had defendants not allegedly conceded that Maragaret Rivera [sic] was an employee of Park West, they would not have suffered damages, rely on a conclusory assumption that the courts would have ruled that she was an independent contractor. Defendants note that in subsequent cases, courts have rejected Park West’s argument that its drivers were in fact independent contractors and found them vicariously liable (NYSCEF
Doc No 17)2. Furthermore, while plaintiffs argue that Margaret Rivera signed a contract which labeling her as an independent contractor, such a contract is not dispositive of the issue (Carlson v Am. Intern. Group, Inc., 30 NY3d 288, 301 [2017]). Therefore, plaintiffs’ allegations of proximate cause are too speculative to maintain a legal malpractice action, and the complaint must be dismissed.”