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Appeals Court Reverses Dismissal of Legal Malpractice Claim For Neglecting To Sue Employer Of Deliveryman

On November 21, 2018 an appellate court reversed a Supreme Court Justice in Kings County that had dismissed a legal malpractice claim before discovery proceedings had been conducted. Basically, the plaintiff had been injured in a car accident and retained the defendant law firm to prosecute a personal injury action.The law firm sued the driver of the vehicle, which presumably had inadequate insurance coverage. The claim for legal malpractice was based on the law firm's failure to sue both the driver and the employer of the driver - Domino's Pizza.

Apparently, the driver of the vehicle was delivering pizza at the time of the accident and his employer (a deep pocket potential defendant) could be held vicariously liable for his negligence. Plaintiff replaced the first law firm with another firm to continue his personal injury claim and that firm filed a suit against Domino's Pizza which raised a defense of the statute of limitations.

The first law firm unsuccessfully argued two points: 1) there was no way they could have known plaintiff was working for Domino's until the driver's deposition  - which only occurred after they had been replaced; and, 2) that the plaintiff had not been damaged since Domino's had been added to the motor vehicle action. The appellate court rejected both arguments. Should Domino's Pizza succeed in dismissing the personal injury action on the ground that the claim was filed late - the legal malpractice action will continue. However, if Domino's Pizza is denied dismissal, the plaintiff's legal malpractice action will fail since any delay in suing Domino's Pizza becomes inconsequential. Lopez v. Lozner & Mastropietro,  2018 WL 6072107

Ronald C. Burke, Esq

Trial Attorney with 30+ Years of Experience Attorney Ronald C. Burke, Esq. has more than 30 years of experience and has focused his career on representing clients in cases involving personal injury, medical malpractice and legal malpractice. He is a seasoned trial lawyer and has won many seven-figure settlements and verdicts for his clients over the years, including many case victories listed among the largest in the history of the New York State. He has been featured in the news and is a regular lecturer for the New York County Lawyers Association, as well as having lectured before the New York State Bar Association. Ron is also an attorney with Kelner & Kelner, a New York personal injury law firm. Awards and Accolades Mr. Burke's awards and accolades are many. Among them, he has been included in New York Super Lawyers® each year since 2010, and he has received the highest-possible AV® Rating from Martindale-Hubbell®. Verdict Search, a part of the New York Law Journal, frequently recognizes his notable successes after winning some of the highest settlements and verdicts in past years. He was also featured in their list of the "Top New York Verdicts of 2011" and "Top New York Settlements of 2012." He is a member of the New York State Bar Association and is licensed to practice law in the U.S. District Court for the Southern and Eastern Districts of New York, as well as before the United States Supreme Court. When Attorney Burke is not handling legal malpractice cases, he is highly involved in the local community. He is a member of the Village of Rockville Centre Volunteer Fire Department, has served on the local school board and as Chairman of the local Zoning Board. Learn more about Attorney Burke and how he can skillfully handle your malpractice case by contacting the Law Offices of Ronald C. Burke, Esq. right away to schedule your complimentary case evaluation. Our firm is here to help! Contact a New York Legal Malpractice Attorney Our firm provides each client's case with thorough preparation and aggressive representation, ensuring that you win the best possible results for your case whether it is settled or goes to trial. As a seasoned trial lawyer, Mr. Burke can provide the strong and relentless representation you need to establish negligence in a legal malpractice case and to recover any damages you may have suffered. Our firm can recover compensation for pre-trial and trial malpractice, violations of fee arrangements, loss of income, pain and suffering, and much more. Contact us today!

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