Kohler v Polsky 2023 NY Slip Op 04373 Decided on August 23, 2023 Appellate Division, Second Department describes a familiar situation in which a construction worker, injured on the job, retains an attorney to file a Worker’s Compensation claim, and assumes that the attorney will also file a personal injury claim. Often, the WC attorney does not, and never had any intention of litigating a PI claim and never led the client to believe that the attorney was starting anything but the WC case.
“In 2009, the plaintiff James Kohler (hereinafter the plaintiff) injured his knee when he slipped and stepped into a hole while working on a tunnel construction project. The same month, upon his physician’s recommendation, the plaintiff met with the defendant Mark S. Polsky, an attorney with the defendant Polsky, Shouldice & Rosen, P.C., for a consultation to discuss his knee injury. At the consultation, the plaintiff signed an engagement letter which stated, inter alia, that he retained the defendants to represent him only in relation to a workers’ compensation claim, and not for any other claims arising from the accident. At his deposition, the plaintiff acknowledged that he understood the engagement letter, but he did not remember whether he read the engagement letter before he signed it or discussed the scope of the representation beyond that the defendants would file a workers’ compensation claim on behalf of the plaintiff and his wife. The defendants filed the workers’ compensation claim, which was ultimately resolved.
In 2014, the plaintiff, and his wife suing derivatively, commenced this action, alleging, inter alia, that the defendants committed legal malpractice by failing to inform the plaintiff that he had potentially meritorious personal injury claims against certain third parties, and that the plaintiff would have prevailed on such claims if the defendants had prosecuted them or advised the plaintiff to seek counsel to prosecute them before the deadline to serve a notice of claim had expired. The defendants moved for summary judgment dismissing the complaint, and the plaintiff and his wife cross-moved for summary judgment. The Supreme Court, inter alia, granted those branches of the motion which were for summary judgment dismissing the causes of action alleging legal malpractice and loss of consortium and denied those branches of the cross-motion which were for summary judgment on those causes of action. The plaintiff and his wife appeal.”
“Rule 1.2(c) of the Rules of Professional Conduct (22 NYCRR 1200.0) provides, in relevant part, that “[a] lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances [and] the client gives informed consent.” “An attorney may not be held liable for failing to act outside the scope of the retainer” (Genesis Merchant Partners, L.P. v Gilbride, Tusa, Last & Spellane, LLC, 157 AD3d 479, 482; see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428).
Here, the defendants demonstrated, prima facie, that the acts that they allegedly failed to perform were beyond the scope of the engagement letter, which was prepared by the defendants and signed by the plaintiff (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d at 435; DeNatale v Santangelo, 65 AD3d 1006, 1007; Turner v Irving Finkelstein & Meirowitz, LLP, 61 AD3d 849, 850). In opposition, the plaintiff and his wife failed to raise a triable issue of fact (cf. Garcia v Polsky, Shouldice & Rosen, P.C., 161 AD3d 828, 830).
Accordingly, the Supreme Court properly granted those branches of the defendants’ motion which were for summary judgment dismissing the causes of action alleging legal malpractice and loss of consortium. The parties’ remaining contentions are academic in light of the foregoing.”