Last week the Appellate Division upheld a Suffolk County judge who refused to dismiss a legal malpractice claim. The plaintiff was injured when he fell while descending an allegedly defective ladder in 1989. In 1991 he hired the defendant law firm who then sued the ladder manufacturer. For the first eight months the case couldn't progress due to a bankruptcy filing by the ladder manufacturer, but the hope was that there would be a recovery from the liability insurance policy of the ladder manufacturer. In October 1991 the ladder manufacturer served interrogatories on the law firm representing plaintiff asking for details of the claims made. However, for the next 13 years the case sat without any real progress and when the law firm answered the interrogatories in 2004, the insurance company disclaimed coverage. Plaintiff then sued the law firm for legal malpractice in 2007. Since the ladder company was bankrupt and the law firm never made a claim upon the liquidated assets in Bankruptcy Court, the loss of insurance coverage was the fatal blow.

The law firm argued that since the plaintiff didn't have the ladder to prove that it was indeed defective, the case should be dismissed. The plaintiff asserted that the law firm was negligent for failing to preserve or inspect the ladder and that the delay in prosecuting his case caused his loss of any recovery. The plaintiff defeated the law firm's motion to dismiss his case relying on the affidavit of an expert who swore that based on plaintiff's description of the accident and pictures, the ladder was "defective based upon a reasonable degree of safety engineering and scientific certainty."

Of note, this case went to trial in 2010 and was dismissed by the trial court before the jury could deliberate because plaintiff had not retained a ladder expert. An appeal resulted in a retrial being scheduled and this time around the plaintiff retained a ladder expert. The defendant law firm lost the legal argument that plaintiff couldn't retain a liability expert upon a retrial that had not been disclosed prior to the first trial.