On February 5, 2020, an appeals court covering Suffolk County affirmed the dismissal of a legal malpractice complaint filed by a construction worker who was injured at a construction site. The bucket of an excavator struck the plaintiff's leg causing injuries. The attorney's who represented the plaintiff unsuccessfully opposed a motion to dismiss two separate claims premised on Labor Law Sections 240(1) and 241(6). The Court held that the facts of plaintiff's accident did not fall within the requirements for either statute. The Court explained that the accident was not elevation related even though plaintiff was injured working at an elevated height and that there were no violations of the Industrial Code based on the undisputed facts of the accident. Once those statutory claims under the Labor Law were dismissed the attorney's were granted leave to withdraw because the only remaining claims would be unlikely to prevail.

The plaintiff eventually discontinued his personal injury action and filed a legal malpractice claim against his attorney's. The Court dismissed those claims finding that plaintiff was unable to prove that a more favorable outcome could have been obtained under any circumstances. The problem for the plaintiff was that given his own deposition testimony there was no basis in law to support the Labor Law claims that were properly dismissed thru no fault of his attorney's. Dominguez v Mirman, 2020 WL 55949