In a startling and ironic turn, a legal malpractice law firm sues an attorney for not doing something wrong.  Wait, that sounds convoluted.  Here is the story.   Baer v Law Offs. of Moran & Gottlieb  2016 NY Slip Op 03799  Decided on May 12, 2016  Appellate Division, Third Department is about how an attorney took on a baby’s medical malpractice case and allowed the statute of limitations to pass for the parents.  He waited 4 years and then passed it on to a med-mal practitioner who started the case which eventually settled for the baby. Problem?  The parents had a derivative claim which was time barred.  When a law firm is sued, they turn around and sue the med-mal practitioner.  The AD says he was correct and ethical not to bring a time-barred suit.

“In December 2004, plaintiffs engaged defendants, a law firm and an individual attorney, to prosecute potential claims arising from the allegedly negligent medical care that their infant son received from March to April 2004. In 2008, defendant Steven Gottlieb, without having filed a complaint in connection with those claims, referred plaintiffs to third-party defendant, David J. Clegg, an attorney with experience in medical malpractice litigation. Clegg was formally retained in August 2008 and filed a complaint for plaintiffs’ son in February 2010. No derivative claims were pleaded on behalf of plaintiffs in the complaint that Clegg prepared. The medical malpractice action eventually settled and, thereafter, plaintiffs commenced the instant legal malpractice action against defendants, alleging that they negligently failed to assert [*2]plaintiffs’ derivative claims before the statute of limitations had expired thereon. Defendants impleaded, among others no longer involved in the action, Clegg, who then made a pre-answer motion to dismiss the third-party complaint, arguing that the statute of limitations on plaintiffs’ derivative claims had expired before he became involved in their son’s case. Supreme Court granted Clegg’s motion, and defendants now appeal.

We affirm. “An attorney sued for malpractice is entitled to commence a third-party claim for contribution [or indemnification] against a subsequent attorney whose negligence has contributed to or aggravated the plaintiff’s damages” (Hansen v Brognano, 137 AD2d 880, 881 [1988] [citation omitted]; see CPLR 1401; Schauer v Joyce, 54 NY2d 1, 5 [1981]; M & R Ginsburg, LLC v Segel, Goldman, Mazzotta & Siegel, P.C., 121 AD3d 1354, 1354-1355 [2014]; Soussis v Lazer, Aptheker, Rosella & Yedid, P.C., 66 AD3d 993, 995 [2009]). In that regard, where the limitations period applicable to a potential action is indisputable, an attorney’s “fail[ure] to commence [the] action within [that time frame] . . . f[alls] below the ordinary and reasonable skill and knowledge commonly possessed in the legal profession” and, absent countervailing considerations, constitutes negligence (Bergin v Grace, 39 AD3d 1017, 1018 [2007] [internal quotation marks and citation omitted]; see Wilk v Lewis & Lewis, P.C., 75 AD3d 1063, 1066 [2010]; compare Mignott v Kreidman, 65 AD3d 972, 972 [2009]).

As is relevant here, an action for medical malpractice “must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure” (CPLR 214-a; see Johanson v Sullivan, 68 AD3d 1303, 1304 [2009]; Cahill v Lat, 39 AD3d 1013, 1014 [2007]). Notwithstanding that time frame, an individual that is “under a disability because of infancy . . . at the time the cause of action accrues” is entitled to a 10-year toll of the limitations period (CPLR 208; see Henry v City of New York, 94 NY2d 275, 279-282 [1999]; Dugan v Troy Pediatrics LLP, 105 AD3d 1188, 1189 [2013]). However, “neither the infancy toll nor the continuous treatment toll applies to derivative claims” (Cahill v Lat, 39 AD3d at 1014; see Devadas v Niksarli, 120 AD3d 1000, 1008 [2014]; Chambers v Mirkinson, 68 AD3d 702, 706 [2009]; Boyle v Fox, 51 AD3d 1243, 1245 [2008], lv denied 11 NY3d 701 [2008]; Whipple v Goldsmith, 202 AD2d 834, 835 [1994]). Finally, on a motion to dismiss a third-party complaint for failure to state a cause of action pursuant to CPLR 3211 (a) (7), this Court must “accept the facts as alleged in the [third-party] complaint as true, accord [the third-party plaintiffs] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Slezak v Stewart’s Shops Corp., 133 AD3d 1179, 1179 [2015] [internal quotation marks and citation omitted]; see State of N.Y. Workers’ Compensation Bd. v 26-28 Maple Ave., Inc., 80 AD3d 1135, 1137 [2011]).”