Worker is injured on the job by a paving machine.  Worker collects WC benefits from his employment.  Worker sues paving machine manufacturer in products liability, and his attorney blows the statute.  Worker succeeds in legal malpractice.  May WC carrier recoup benefits?

Had the case been tried as a products liability case [not legal malpractice] in NY, the answer would be yes, recoupment.  Here, in this Florida case, the answer is no. Here is the blurb from Risk & Insurance.com

"Case name:Columbia v. Brewer, No. 1D07-5658 (Fla. Dist. Ct. App. 10/22/08).

What it means: An injury suffered as a result of legal malpractice does not occur in the course of a claimant’s employment, and the defendants in a legal malpractice case are not third-party tortfeasors under Florida law. As a result, the claimant’s employer is not entitled to recoup the workers’ compensation benefits it has paid from the proceeds of the legal malpractice settlement. Instead, it may sue the third party that caused the claimant’s injuries if the claimant fails to do so within one year after the cause of action accrues. "

Plaintiff sued his former criminal defense attorney because the attorney did not perfect an appeal.  So far, so good.  What followed shows how difficult litigation can be, and in how many ways a good case can go awry.  Consider, for example, whether there could be a legal malpractice case against the attorney. The answer is probably no, because plaintiff cannot demonstrate "innocence" or "exoneration" and this is an action against a criminal defense attorney.

But this was an action in contract for not filing the appeal.  The attorney died some months prior to the summons and complaint being "served."  What follows is a several year long exercise in wasted time and money for everyone.

The case is Marte v Graber , 2008 NY Slip Op 08552 , Decided on November 13, 2008 , Appellate Division, First Department.  "Because there simply is no precedent nor any support in New York’s Civil Practice Law and Rules for a court obtaining jurisdiction over an action "commenced" three months after the death of the individual named as the sole defendant, we find that the order appealed from is a [*2]nullity. The complaint should have been dismissed by the motion court as a nullity when the putative plaintiff, having filed a summons and complaint, discovered that the named defendant had died before the filing. As it is, this matter arrives before this Court as a result of a volume of errors rarely seen in this Department, and which are set forth below, seriatim"
 

"In or around July 2005, Amin Marte, incarcerated and acting pro se, filed an unsigned, undated summons and complaint alleging legal malpractice by attorney Herman Graber. Thereafter, Marte discovered that Graber had died on April 2, 2005, approximately three months before the filing of the summons and complaint. Thus the action from its inception was a nullity since it is well established that the dead cannot be sued. See Jordan v. City of New York, 23 AD3d 436, 437, 807 N.Y.S.2d 595, 597 (2d Dept. 2005)("party may not commence a legal action or proceeding against a dead person, but must instead name the personal
representative of the decedent’s estate"); see also Arbelaez v. Chun Kuei Wu, 18 AD3d 583, 795 N.Y.S.2d 327 (2nd Dept. 2005); Laurenti v. Teatom, 210 A.D.2d 300, 301, 619 N.Y.S.2d 754, 755 (2nd Dept. 1994)[FN1]. "

Judges retire or don’t stand for re-election, and then look for a new job.  That’s expected and no one is surprised when they surface as a partner in biglaw, or in a prestigious local firm.  This story borders on the extreme.Charles Toutant of the New Jersey Law Journal reports:

"Lawyers who engaged a retiring judge in discussions about a future business relationship while he was ruling in one of their cases have been sued for damages — specifically, the other party’s attorney fees.

The suit, just filed in Morris County, N.J., is the aftermath of the New Jersey Supreme Court’s September ruling in Denike v. Cupo, A-61-07, which upended a commercial suit judgment based on a perceived appearance of impropriety.

The justices found Gerald Escala, a Bergen County Superior Court judge nearing retirement, created an appearance of impropriety by talking about a job offer with a Hackensack, N.J., law firm while winding up the dispute, in which the firm represented one of the parties.

Now the other party, Michael Cupo, is suing Herten, Burstein, Sheridan, Cevasco, Bottinelli, Litt & Harz and partner Thomas Herten, claiming the firm’s actions amounted to professional negligence and have injured him in the pocketbook.

According to court papers, Escala issued a final decision in the underlying case on Jan. 23, 2006, ordering Denike to pay Cupo the $731,682. The next day, Herten visited the judge’s chambers, inquired about his retirement plans and asked whether he would consider joining Herten Berstein in some capacity. Escala outlined the type of firm relationship he was contemplating. Herten discussed the proposed relationship with his partners on Jan. 25 and told Escala they would need a few days to analyze it.

On Jan. 30, Herten received from Escala by mail an order with terms that seemed inconsistent with the judge’s prior decision. Herten submitted an alternate form of order, which the judge signed on Feb. 1. The same day, Herten told Escala the firm’s analysis of the proposed relationship was not yet completed.

On Feb. 3, Herten visited Escala in chambers and the two agreed to a relationship in principle, with the financial terms to be worked out later. That night, Escala announced at a retirement dinner, attended by his former law clerks and staff, that he was joining the firm. He came aboard Feb. 27
"”Cupo spent over $250,000 to have his case against Lawrence Denike tried to conclusion and now as a direct result of the actions of Thomas J. Herten, Esq., and the Defendant law firm of Herten, Burstein, Sheridan, Cevasco, Bottinelli, Litt & Harz, LLC, he must spend additional funds for the retrial," reads the complaint in Cupo v. Herten.""

Yesterday we examined this case: Whalen v DeGraff, Foy, Conway, Holt-Harris & Mealey ,2008 NY Slip Op 06342 [53 AD3d 912] ,July 17, 2008 ,Appellate Division, Third Department  on the issue of when an expert is necessary.  Today, we look at how a referring attorney, [or a supervising attorney] may become responsible for the negligence of the referred attorney. 
 

In this case attorney 1 obtained a judgment, and retained attorney 2 to collect- protect- perfect the judgment against debtor’s estate in Florida.  Attorney 2 did not protect, and the judgment was noncollectable.  Was attorney 1 responsible for the shortcomings of attorney 2?

"Plaintiff commenced this action against defendant alleging, among other things, that defendant was vicariously liable for the negligence of Bailey and/or negligently failed to supervise Bailey in filing the notice of claim in Florida. Defendant then moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. Supreme Court denied the respective motions in a July 2006 order. Plaintiff moved for leave to reargue and/or renew and defendant moved for reargument. Upon reargument, Supreme Court, in November 2007, adhered to its original determination. The parties now cross-appeal from both the 2006 and 2007 orders.[FN2]

Plaintiff contends that defendant is liable for damages resulting from Bailey’s failure to file the notice of claim either on the basis that defendant had a nondelegable duty to file such notice of claim or based upon defendant’s negligent supervision of Bailey. Defendant maintains that its duty to plaintiff was completely met when it retained Bailey to file the notice of claim and that it was entitled to rely on Bailey to perform that act.

The general rule is that "[a] firm is not ordinarily liable . . . for the acts or omissions of a lawyer outside the firm who is working with firm lawyers as co-counsel or in a similar arrangement" (Restatement [Third] of Law Governing Lawyers § 58, Comment e), as such a lawyer is usually an independent agent of the client. Here, however, defendant solicited Cagan and Bailey and obtained their assistance without plaintiff’s knowledge. Although plaintiff was later advised that Bailey had been retained by defendant, she had no contact with Bailey and did not enter into a retainer agreement with that firm. Defendant concedes that plaintiff completely [*3]relied on defendant to take the necessary steps to satisfy her judgment against Gerzof. Under these circumstances, defendant assumed responsibility to plaintiff for the filing of the Florida estate claim and Bailey became defendant’s subagent (see Restatement [Third] of Law Governing Lawyers § 58, Comment e). Therefore, defendant had a duty to supervise Bailey’s actions (see Restatement [Third] Agency § 3.15; Restatement [Second] Agency §§ 5, 406).[FN3] "

The short answer to the question of when an expert is necessary in legal malpractice is "most of the time."  Here in this case, Whalen v DeGraff, Foy, Conway, Holt-Harris & Mealey ,2008 NY Slip Op 06342 [53 AD3d 912] ,July 17, 2008 ,Appellate Division, Third Department  we see the slightly longer answer on a motion for summary judgment [same rule would obtain for trial]:
 

"While plaintiff would ordinarily be required to submit an affidavit of an expert setting forth the applicable standard of care in order to obtain summary judgment in her favor (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]), no such affidavit is necessary here because it is undisputed that defendant knew of the deadline for filing the notice of claim and took no steps whatsoever to even inquire as to the status of that filing between February 1996 and January 1998 (see Shapiro v Butler, 273 AD2d 657, 658 [2000]; S & D Petroleum Co. v Tamsett, 144 AD2d 849, 850 [1988]). Thus, plaintiff’s motion for summary judgment should have been granted to the extent of awarding her judgment as a matter of law with respect to defendant’s negligence in failing to supervise Bailey. In light of this determination, we find that Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint (see Zuckerman v City of New York, 49 NY2d at 562; Guiles v Simser, 35 AD3d 1054, 1055 [2006]). "

We are continuing to discuss the Gotay case, 2008 NY Slip Op 08432. 

Defendants remain in the case on the basis that it was unclear that they intended to, or actually had ended their representation.  CPLR 321 is the manner in which an attorney ends the relationship, absent a court order.  In this long-running medical malpractice case, which transcended the commencement by purchase of an index number period, nothing was clear:

"Defendants’ statute of limitations defense is premised upon the contention that their [*3]representation of plaintiff did not continue within the statutory period. "The continuous representation doctrine . . . recognizes that a person seeking professional assistance has a right to repose confidence in the professional’s ability and good faith, and realistically cannot be expected to question and assess the techniques employed or the manner in which the services are rendered’" (Shumsky v Eisenstein, 96 NY2d 164, 167 [2001], quoting Greene v Greene, 56 NY2d 86, 94 [1982]). The statute of limitations is tolled while the attorney continues to represent the client on a particular matter, in part to protect the professional relationship (see Shumsky, 96 NY2d at 167-168). However, the representation must be related to the specific area that is the subject of the malpractice claim (id. at 168) and "there must be clear indicia of an ongoing continuous, developing, and dependent relationship between the client and the attorney’" (Aaron v Roemer, Wallens & Mineaux, 272 AD2d 752, 754 [2000], lv dismissed 96 NY2d 730 [2001], quoting Luk Lamellen U. Kupplungbau GmbH v Lerner, 166 AD2d 505, 506 [1990]).

The HHM defendants contend that the subject attorney-client relationship terminated in January 1998, or at the very latest on January 28, 1999. They urge that on the earlier occasion HHM partner Steve Marchelos met with plaintiff and her father and advised them that the medical malpractice action was dead and that they had the option to pursue a legal malpractice action against their former attorneys, Kaufman & Siegel. The record, however, is not in accord with this characterization of what transpired at the 1998 meeting. It is clear from Marchelos’s deposition testimony that, at the time of the 1998 meeting, he simply did not know the actual status of the medical malpractice action and, accordingly, could not have accurately represented that the action was certainly "dead." Indeed, Marchelos testified that, as of the date of the meeting, he was still attempting to retrieve the court file and that he fully intended "to continue in trying to follow through, maybe with a resurrection of the file." There is no indication in the record that Marchelos made any contrary representation to plaintiff; he nowhere claims to have told plaintiff that HHM’s efforts on her behalf had definitively concluded. Nor is there other evidence that that impression had been conveyed. There is no indication that the firm’s file on the case was either offered by Marchelos or requested by plaintiff or her father and, in fact, the file remained in the firm’s possession, where it evidently continued to be viewed as active, since it was among the files that defendant Handwerker took with him to Ross Suchoff in January 1999. "

"An attorney is required to provide reasonable notice to the client when withdrawing from representation (see CPLR 321[b][2]; Rules of App Div, 1st Dept [22 NYCRR] § 604.1[d][6]), and no definition of reasonable notice would require a client to infer, from ambiguous action or inaction on the part of her attorneys, much less on the part of an attorney with whom she had no relationship, that she is no longer represented. Particularly under the circumstances obtaining here, where the entire course of the litigation had been fraught with delay and a lack of communication between client and counsel, and where there had been a series of largely inactive yet persistent attorney-client relationships, more than equivocal behavior was required to sever the representational relationship. The elaborate inferential constructs which the dissent finds so irresistible are not appropriately utilized to impute knowledge of the status of an attorney-client relation. It would have been a simple matter for HHM to advise plaintiff that in its estimation the medical malpractice action was unsalvageable and, consequently, that their relationship had run its course. Inasmuch, however, as the HHM defendants failed to meet their burden as proponents of the summary judgment motion to show prima facie that such unequivocal notice had been afforded, the motion was properly denied."

Law.Com reports the Gotay v. Brietbart2008 NY Slip Op 08432
Decided on November 6, 2008
Appellate Division, First Department
Lippman, P.J., case.  This case addresses what may be the last reference to a change in New York law which roiled the waters for several years.  Once, long ago, an action was commenced by service of the summons, etc, upon the defendant.  No index number was necessary, and there was no oversight of these cases.  The legislature changed to the federal system, where an action was commenced by purchase of an index number.  Besides serving a revenue creation process, at least it was clear that an action was commenced on a date certain.  What of the cases already in progress? 

This Gotay legal malpractice case illustrates one of the problems.  "Although Supreme Court granted defendants’ motion to dismiss the action for failure to state a cause of action, this Court reversed (14 AD3d 452 [2005]), finding, inter alia, that the complaint adequately alleged that HHM had been negligent in failing to apply for an order of filing nunc pro tunc in the medical malpractice action (at 454). Defendants then moved for summary judgment, asserting that the action was time-barred and that there was no proof of damages attributable to the alleged negligence. Plaintiff cross-moved for summary judgment, arguing that the medical malpractice should be deemed admitted. Ultimately, upon reargument, Supreme Court denied the HHM defendants’ motions, finding that those defendants had failed to make a prima facie showing that the attorney-client relationship had ended more than three years before plaintiff commenced this action. "

Plaintiffs were aspiring Broadway Musical producers, and contracted for the rights to a Barry Manilow production, Harmony.  Alas, it was not to be.  Producing a play/musical for Broadway takes a lot of money, and it appears from the court decision that this production was "undercapitilized,"

Things went badly, and ended in the producers losing their rights to the script.  Legal malpractice litigation ensued, and last week plaintiffs lost the case.      In Snorkel Productions, Inc. v. Beckman, Lifeberman & Barandes LLP  Justice Lowe determined that the legal malpractice case must fail.  It all seemed to turn on the undercapitilization, in which about $ 5-8 million was necessary to produce a Broadway musical, and the producers had great difficulty raising the money.  Plaintiffs claimed that the attorneys did not give them the correct date upon which to make a payment.  For lack of the payment, the right to produce the musical ended.