Attorney 1 handles a case for a period of time, and then the case is turned over to Attorney 2.  At the time of transfer the case is active nor is under imminent threat of dismissal.  Later, while Attorney 2 is handling the case, something goes wrong, and a legal malpractice case is started against Attorney 1 and Attorney 2.  Attorney 1 says that since Attorney 2 took over, and the case was in good health, why blame me?

The Fourth Department recently considered this very situation in New Kayak Pool Corp. v Kavinoky Cook LLP  2015 NY Slip Op 01066  Decided on February 6, 2015  Appellate Division, Fourth Department. 

"Memorandum: Plaintiffs commenced this legal malpractice action against defendants, Kavinoky Cook LLP (Kavinoky) and Hodgson Russ, LLP (Hodgson), each having represented plaintiff The New Kayak Pool Corporation, now known as Kayak Pool Corporation (Kayak Pool) in a federal trademark infringement action. Seven months after Hodgson was substituted for Kavinoky as legal counsel for Kayak Pool, the federal action settled, and Kayak Pool received, inter alia, injunctive relief and $150,000 in full settlement of all its claims in that action. The settlement check was issued by an insurance company, and plaintiffs now allege that Kavinoky and Hodgson committed malpractice by failing to inquire as to the federal defendants’ insurance coverage. Plaintiffs further allege that, had Kayak Pool been aware that the federal defendants had insurance coverage, Kayak Pool would not have settled for only $150,000.

Following discovery in this action, plaintiffs moved for partial summary judgment on liability, and each of the defendants moved for summary judgment dismissing the amended complaint and all cross claims asserted against them. We conclude that Supreme Court properly granted defendants’ motions."

"Contrary to plaintiffs’ contention with respect to Kavinoky, the court properly determined that Kavinoky’s failure to determine the existence of the federal defendants’ insurance coverage was not a proximate cause of plaintiffs’ alleged damages, which is a necessary element of a cause of action for legal malpractice (see Oot, 275 AD2d at 1023). As noted by the court, "[i]t is undisputed that Kavinoky was discharged as [Kayak Pool’s] counsel, and Hodgson was substituted in as [Kayak Pool’s] counsel, prior to the time that any settlement negotiations began and that Kavinoky had no role whatsoever in those negotiations." Moreover, although plaintiffs substituted Hodgson as their legal counsel only after the attorney who had initially represented plaintiffs left Kavinoky to join Hodgson (see New Kayak Pool Corp., 74 AD3d at 1852-1853), Kavinoky established that a different attorney at Hodgson overtook responsibility for representing plaintiffs once Hodgson was substituted as counsel. Therefore, despite the connection between the two law firms, there was no actual continuity of legal representation. Even if we were to assume, arguendo, that Kavinoky, through the actions of the first attorney, was negligent in failing to investigate the matter of insurance coverage, we note that Hodgson, through the newly assigned attorney, had over seven months in which to conduct its own investigation before settling the federal action on behalf of Kayak Pool. We thus conclude that Kavinoky established as a matter of law "that its actions did not proximately cause the plaintiffs’ alleged damages, and that subsequent counsel had a sufficient opportunity to protect the plaintiffs’ rights by pursuing any remedies it deemed appropriate on their behalf" (Katz v Herzfeld & Rubin, P.C., 48 AD3d 640, 641; see e.g. Somma v Dansker & Aspromonte Assoc., 44 AD3d 376, 377; Golden v Cascione, Chechanover & Purcigliotti, 286 AD2d 281, 281; cf. Tooma v Grossbarth, 121 AD3d 1093, 1096-1097; Grant v LaTrace, 119 AD3d 646, 647), and plaintiffs failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562).