Two days ago, the Appellate Division reversed a Manhattan Judge and dismissed a legal malpractice case against an attorney who sued the wrong party causing the dismissal of a personal injury case. The Niemark law firm was first attorney hired by a man who was injured at a public school in New York City. The only proper party to sue is the owner and operator of the premises which in this case is the New York City Department of Education (DOE) --not the City of New York. These are distinct legal entities and neither one is responsible for the other. Months before the deadline expired to file a motion for leave to serve a late Notice of Claim (1 year and 90 days) against the DOE, the Budin law firm replaced the Niemark law firm. Months after the deadline to sue had expired the Budin law firm recognized the error both firms had made and filed the requisite motion which was denied for being late. The client lost his chance to have his case tried before a jury and sued both law firms.

Both law firms filed motions to dismiss the legal malpractice lawsuit and Judge Bannon denied the motions. On appeal the Appellate Court reversed Judge Bannon in part and dismissed the case against the first law firm (Niemark) holding: "This substitution of counsel was a superseding and intervening act that severed any potential liability for legal malpractice on the part of the Niemark defendants...." Liporace v Niemark, 2018 WL 326274. Obviously, the second law firm had an opportunity to correct the error made by the first law firm and failed to do so before it was too late.