On December 14, 2021, the First Department reversed a decision that addressed the duty owed by an attorney to a client arising out of a failure to file a Notice of Claim within 90 days and/or a motion for leave to file a late Notice of Claim within 1 year and 90 days. Plaintiff retained attorney #1 to represent him for injures suffered in a bus accident a few days earlier. The bus was operated by a private company but owned by Nassau County. Attorney # 1 is seemingly unaware the bus is owned by Nassau County and/or that a Notice of Claim must be filed within 90 days of the accident. Approximately 8 months after the bus accident plaintiff fires attorney # 1 and hires attorney # 2. The second lawyer is aware the time to file a Notice of Claim has expired and withdraws two months later with approximately 5 months time remaining for someone to file a motion for leave to file a late Notice of Claim. Plaintiff then hires attorney #3 well past the deadline to file a motion for leave who promptly files suit against the private corporation that winds up being dismissed for failure to file a Notice of Claim.

Who gets sued? All of them. Plaintiff sues attorney #1 who in turn sues attorney # 2 and attorney # 3. The lower court dismisses the case against attorney # 3 because by the time they were retained it was too late to fix the problem and they made a valiant but futile attempt to sue the private corporation that operated the bus. However, the lower court seemed to leave open the possibility that attorney #2 could be faulted for withdrawing without filing a motion for leave to file a late Notice of Claim. The appellate court disagreed and pointed out that by the time attorney #2 withdrew - plaintiff had 5 months in which to locate counsel to file a motion for leave--assuming there was any merit to that application. Accordingly, attorney # 2 was rightly dismissed from the case leaving plaintiff to continue his legal malpractice claim against attorney #1 for blowing the Notice of Claim requirement. Buxton v Zukoff, 2021 N.Y. Slip Op. 06942