Attorney Failed to File a Notice of Claim Against NYC - Legal Malpractice Claimant Beats Dismissal Motion
On January 11, 2019, Justice Peter Sweeney of the Kings County Supreme Court denied a motion to dismiss a legal malpractice claim against a personal injury attorney who neglected to file a Notice of Claim against the City of New York within 90 days of the accident. The plaintiff suffered injuries when he tripped and fell on a raised sidewalk in front of a single family owner occupied home in Brooklyn. The defendant was retained to file a personal injury action and sued the owner of the adjacent property who successfully argued that he had no legal obligation to repair the sidewalk fronting his home as per NYC Administrative Code 7-210(b). The obligation to maintain that sidewalk was on the City and there was evidence that it had prior written notice of the defective sidewalk as required by law. By the time the case against the homeowner was dismissed it was too late to file a motion for leave to file a late Notice of Claim.
The attorney moved to dismiss the legal malpractice claim arguing two points: 1) that any claim that the plaintiff would have prevailed in a suit against the City was speculative; and, 2) that plaintiff could still file suit against the homeowner for failing to remove the snow from the sidewalk which concealed the raised sidewalk flag. These arguments were flatly rejected since the client had indeed lost a "potentially" meritorious claim against the City due to attorney error. The Court did provide some relief to the defendant attorney by dismissing the breach of contract and fiduciary duty causes of action as they were duplicative of the legal malpractice cause of action. Salamah v Ginsberg, PC, 2019 WL 235390