Wrong Municipality Sued-First Alleged Negligent Attorney Blames All On Second Negligent Attorney-Denied Dismissal
This case concerns a New York City (NYC) teacher who suffered spinal injuries in a trip and fall at a public school. Two different law firms successively represented him until his case was dismissed for failing to file a Notice of Claim within 90 days of the accident, against the correct municipality. The first law firm hired failed to realize that public schools in NYC are owned, maintained and operated by the NYC Department of Education (DOE) - not NYC. As a result, they filed a Notice of Claim within 90 days of the accident on NYC - instead of serving it on the DOE. That is a fatal mistake that can be cured, but only under certain limited circumstances.
The second attorney hired had a chance to save the case by filing a motion for leave to file a late Notice of Claim upon the DOE, within 1 year and 90 days of the accident—but failed to do so. The teacher's case was lost on a statute of limitations technicality and his only remedy to recover for his injuries was to sue the attornney's for legal malpractice. However, it must still be proven that a properly prosecuted personal injury claim would have been successful.
On June 26, 2018, the appellate court covering Manhattan ruled that the first firm should not be dismissed from the case and could not blame it all on the second law firm because it was too early to determine whether a motion for leave to file a late Notice of Claim would have been successful. The grant of such a motion is discretionary with the court and involves consideration of multiple factors. If the motion for leave to file a late notice would have been successful, the failure to file such a motion would be a superceding and intervening act of negligence severing the first firms liability for failing to timely serve a Notice of Claim on the correct municipality within 90 days of the accident. Liporace v Neimark, 2018 WL 3116863