The defendant attorney admittedly failed to timely commence an action against a nursing home on behalf of the Estate of a woman who died due to complications from a bedsore, infection and sepsis. The defendant attorney defaulted or failed to file an answer to the legal malpractice complaint. (Not surprising as the defendant had been disbarred upon his guilty plea to a felony on an unrelated matter one year before he was sued in this case.) So an Inquest was scheduled solely for the purposes of allowing the Court to determine what was fair and reasonable compensation for the decedent's pain and suffering over a period of one month before her death in February 1996. The attorney was consulted by the Estate five months later.
The Court determined that $200,000 would have been the fair and reasonable compensation that the Estate would have recovered "but for" the attorney's malpractice in not timely filing an action against the nursing home. Moreover, the Court awarded the Estate an additional $263,417 representing statutory interest at the rate of 9% form the date when the underlying statute of limitations expired for filing a medical malpractice claim against the nursing home.(See, CPLR 5001) The deadline to file the action against the nursing home was July 27,1998 approximately two years after the defendant attorney was consulted. The legal malpractice action was filed in April 2009 and resolved by the date of the decision following Inquest--March 2013, almost 15 years after the deadline expired to sue the nursing home. The total award of $463,417 includes 9% interest. Corsiatto v. Maddalone, (Sup.Ct. Suffolk County 2013)
Pre-verdict interest is not allowed in personal injury actions (such as the underlying claim against the nursing home) but is awarded in property damage actions which is the essence of the claim in a legal malpractice action.