Earlier this month, the appellate court covering Brooklyn agreed with a trial court who refused to grant the motion of a workers compensation law firm to dismiss a legal malpractice claim. The plaintiff was injured on the job and hired the Polsky law firm to handle his claim for workers compensation benefits. The retainer agreement "explicitly states that he was only hiring the firm for the purpose of obtaining workers compensation benefits and not for any other claims arising from this accident." However, the client asserted that he never spoke to an attorney-only a paralegal before the first 90 days after his accident. The client claimed this paralegal never told him that since his accident occurred on property owned by the NYC Department of Education and/or the School Construction Authority--he could sue them provided he filed a Notice of Claim within 90 days.

The plaintiff alleged that he did hire another law firm to handle his injury claim, but not until more than 90 days after his accident. This second firm timely filed a motion for leave to file a late notice of claim which was denied. Therefore, the plaintiff argued that the Polsky law firm negligently failed to alert him to retain a law firm to handle his injury claim within 90 days of the accident and their failure to do so resulted in the dismissal of his claim against the municipal owners of the property where he was injured. As such, the Court held that the limitations in the workers compensation law firm retainer could not serve as the basis of dismissal since it did not conclusively establish a defense as a matter of law. Garcia v Polsky, 2018 WL 2124062