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