Lack of Meritorious Claim For Workers Compensation Benefits Results In Dismissal Of Legal Malpractice Case
On August 16, 2018, Justice Pastoressa of the Suffolk County Supreme Court granted summary judgment to a law firm that had been retained to file a personal injury claim for a client that was struck by a car while crossing a public street. The personal injury claim was timely filed but no claim for workers compensation benefits was filed within one year of the accident as required by the statute of limitations. There was a question of fact as to whether the law firm had also been retained to file a claim for workers compensation benefits. However, the Court focused on whether the client would ever have succeeded on a claim for workers compensation benefits. To succeed on such a claim you must prove that you suffered an injury"arising out of and in the course of your employment."
The client had been employed as a manager of a Banana Republic store at Woodbury Common. She was struck by a car after leaving work and while walking on a public street on her way to an employee parking lot. The Court held that "where the injury that plaintiff sustained is one that any passerby or member of the public could have sustained, a work-related hazard was not present and the injury did not arise out of and in the course of employment." Thus, it was found that the risk of being struck by a car was a risk shared by all members of the general public and not specifically related to plaintiff's employment. The legal malpractice claim was dismissed. Provenzano v Cellino & Barnes, PC, 2018 WL 4112686