A filing is due today.  By an inadvertant error, it is not filed by midnight.  It is filed before the opening of business the next day.  Any repercussions in Legal Malpractice?  Yep.

The mistakes catalogued in Shenzhen Kehuaxing Indus. Ltd. v Curtis, Mallet-Prevost, Colt & Mosle LLP  2016 NY Slip Op 31593(U)  August 12, 2016  Supreme Court, New York County  Docket Number:   150005/2015  Judge: Eileen Bransten are an attorney’s nightmare.

“In March 2012, the U.S. Department of Commerce (“Commerce”) initiated antidumping (“AD”) and countervailing duty (“CVD”) investigations into SKI and other Chinese manufacturers of stainless steel sinks. See Am. Compl. ~ 21 & Ex. A. SKI and Artisan retained defendant Curtis, Mallet-Prevost, Colt & Mosle LLP (“Curtis” or “the firm”) to represent them during the investigations. (Am. Compl. ¶¶ 11, 24, Ex. D.) Defendants Daniel L. Porter and Ross Bidlingmaier (collectively, with Curtis, “defendants”) are attorneys at the firm, who provided legal services to plaintiffs. Id. ,¶¶ 7, 8; 23; see Affidavit of Daniel Porter (“Porter Aff.”) ,¶ 11.2 At the start of the AD investigation, Commerce set deadlines for various submissions, including a quality and value (“Q& V”) questionnaire, used by Commerce to determine which exporters will be individually investigated. See Porter Aff. Ex. 4 at 18210; see also Am. Compl. Ex. I at 5. The deadline for submission of the Q&V questionnaire was April 11, 2012. See Porter Aff. Ex. 4 at 18210; Am. Compl. Ex. I at 4. The deadline for submitting a separate rate application, which gave exporters an opportunity to obtain a lower antidumping rate than other manufacturers engaged in antidumping practices, was “60 days after publication of this initiation notice,” or May 28 or 29, 2012. See Am. Compl. Ex. G  6. B. Commerce’s Rate Determination Defendants admittedly failed to file the Q& V questionnaire by the April 11 deadline ‘idue to an inadvertent lapse.” (Am. Compl. 27.) Instead, Defendants submitted the Q&V questionnaire before the start of business the following day, April 12, with a request for a one-day extension of the filing deadline, which was denied. See Porter Aff. Ex. 8. Defendants then timely filed plaintiffs’ separate rate application on or about May 25, 2012. (Am. Compl. , 6.) Nevertheless, Commerce rejected plaintiffs’ separate rate application on June 6, 2012, stating that both the Q&V questionnaire and the separate rate application had to be timely filed before it would grant separate rate status, and, because plaintiffs’ Q& V questionnaire was submitted after its deadline, it also would not consider the separate rate application. See Am. Compl. Ex. H. On June 11, 2012, defendants requested that Commerce reconsider its rejection of the separate rate application. See Porter Aff. Ex. 11.”

“Plaintiffs allege that the AD duty rate imposed on them, requiring them to pay upfront cash deposits on their stainless steel sinks shipped to the U.S. in the amount of 76.53% of the customs value of the imports, put them at a severe disadvantage against both U.S. and Chinese competitors, and rendered their stainless steel sinks largely uncompetitive at a profitable price. (Am. Compl. ,-r 33.) When defendants informed plaintiffs that the final determination was issued, plaintiffs responded, in an email dated February 20, 2013, that “[t]his decision is very bad for Artisan. 30% to 50% is what most customer would accept for price increase, not 76% …. We will not be able to survive in China now.” Id. , 34. ”

“Plaintiffs allege that the “prohibitively high” assessed AD rate of 76.53% resulted from defendants’ malpractice, and caused the prices of their sinks to be non-competitive. In addition, plaintiffs assert that distributors and customers to cancel orders and terminate their business with plaintiffs. As a result, plaintiffs seek to recover damages for lost sales, revenues, profits and good will. (Am. Compl.  52, 53.) Plaintiffs also allege that, as a result of the imposition of the 76.53% AD rate and the uncertainty about whether it would be rescinded, they had to move their operations out of China to avoid the high AD rates, and they seek to recover relocation costs. Id. 54-57. ”

“The parties do not dispute that defendants failed to timely file the Q& V questionnaire, which is the primary basis of plaintiffs’ malpractice claim, and which, generally, sufficiently alleges professional negligence. See, e.g., Brodeur v. Hayes, 18 A.D.3d 979, 979 (3d Dep’t 2005) (failure to timely file an answer constitutes negligence); Stanski v. Ezersky, 210 A.D.2d 186, 186 (1st Dep’t 1994) (failure to properly effect service to commence action is negligence); Baker v. Dorfman, 1998 WL 642762, at *4 (S.D.N.Y. 1998) (failure to file claims in a timely manner constituted negligence as a matter of law). Instead, defendants maintain that plaintiffs have failed to plead the requisite elements of proximate cause and damages. ”

“For the purpose of this motion, plaintiffs have sufficiently alleged proximate cause, i.e., but for defendants’ untimely filing of the Q& V questionnaire, uwhat would have been a favorable outcome was an unfavorable outcome.” Zarin v. Reid & Priest, 184 A.D.2d 385, 386 (lst Dep’t 1992). While defendants content that Commerce’s rejection of the separate rate application was the actual, intervening cause of plaintiffs’ alleged damages, such an argument is unavailing on this motion. Defendants do not establish that Commerce’s decision, even if ultimately overtwned, was “[a]n independent, unforeseeable or extraordinary act … far removed from the defendants’ conduct,” so as to 11 sever[] the causal link” between defendants’ untimely filirig and the denial of separate rate status to plaintiffs. Taylor v. Paskoff & Tamber, LLP, 2011WL1480892 at *11 (Sup. Ct. N.Y. Cnty. 2011), aff’d 102 A.D.3d 446 (1st Dep’t 2013) (citing Maheshwari v. City of NY, 2 N.Y.3d 288, 295 (2004)); Arbor Realty Funding, LLC v. Herrick & Feinstein LLP, 103 A.D.3d 576, 576 (1st Dep’t 2013); see also Derdiarian v. Felix Contr. Corp., 51N.Y.2d308, 315 (1980). “[T]he general rule is that an intervening act which is a normal consequence of the situation created by a defendant cannot constitute a superseding cause absolving the defendant from liability.” Lynch v. Bay Ridge Obstetrical & Gynecological Assoc., P.C., 72 N.Y.2d 632, 636-637 (1988). Courts further “fhave cautioned that whether an act is foreseeable and the course of events normal are questions … generally … presenting issues for the fact finder to resolve.” Id. at 636. “