Opinion
102554/2006.
Decided January 17, 2008.
On or about February 10, 2006, the plaintiff allegedly sustained personal injuries after he tripped and fell over an allegedly defective sidewalk adjacent to the Downstate Medical Center located in Brooklyn, New York. On or about February 28, 2006, the plaintiff retained defendants The Law Office of Louis Venezia and Louis Venezia (hereinafter Venezia), to pursue a negligence action. On May 5, 2006, defendant Venezia acknowledges that he erroneously filed a notice of claim with the City of New York, instead of the State of New York, as the owner of the property where the accident occurred. Thereafter, the defendant Venezia informed plaintiff that the time to file the notice of claim with the State of New York had expired and he should retain counsel for the legal malpractice action. On June 29, 2006, the plaintiff retained the third-party defendant Minchew, Santner Brenner, LLP and Jamie Minchew, personally, (hereinafter "Minchew") to prosecute the legal malpractice action. This legal malpractice action was thereafter commenced on August 23, 2006. The defendants then commenced a third party action against plaintiff's attorney alleging their failure to make an application, pursuant to the Court of Claims Act § 10(6), to file a late notice of claim. Third-party defendant Minchew now moves to dismiss the third-party complaint, pursuant to CPLR § 3211 (a)(1) and (a)(7), on the grounds that the complaint fails to state a cause of action and that documentary evidence establishes the limited purpose for which they were retained.
Interestingly, the Court notes that the statute of limitations to remedy the underlying personal injury claim has not yet expired. In fact, the time period to make a motion to file a late notice of claim, pursuant to the Court of Claim Act § 10(6) and CPLR § 214(5), does not expire in this case until February 10, 2009! It is however within the discretion of the Court of Claims Judge to allow such action to proceed.
NY Ct. of Claims Act § 10(6) provides that "[a] claimant who fails to file or serve upon the attorney general a claim or to serve upon the attorney general a notice of intention, as provided in the foregoing subdivisions, within the time limited therein for filing or serving upon the attorney general the claim or notice of intention, may, nevertheless, in the discretion of the court, be permitted to file such claim at any time before an action asserting a like claim against a citizen of the state would be barred under the provisions of article two of the civil practice law and rules."
With respect to the motion at hand, generally, where a law firm is retained for the limited and express purpose of representing a client in a legal malpractice action, they do not have a duty to prosecute the underlying claim, if one still lies ( see Northrop v. Thorsen, ___ AD3d ___, [2nd Dept., Dec. 18, 2007] [finding that an attorney retained "in a separate matter, before a separate tribunal, and for a different purpose" does not require him to mitigate damages in the underlying claims); Johnson v. Berger, 193 AD2d 784, 786 [2nd Dept., 1993] [holding that a law firm's failure to preserve an estate's assets, when retained for the limited purpose of prosecuting a legal malpractice action "did not contribute to or aggravate the plaintiffs' damages arising from the former attorneys' alleged legal malpractice"]).
Here, third-party defendant's have established entitlement to judgment in accordance with CPLR § 3211(a)(1) and (a)(7). The retainer agreement is clear and specific, detailing that the representation by the third-party defendants is for "damages arising from personal injuries sustained by Eugene Cacho as a result of legal malpractice." Further, the cases cited by the defendant/third-party plaintiff's are distinguishable from the instant matter in that here, the third-party defendant Minchew was not hired as successor counsel to prosecute the personal injury claim, but rather on a different matter, in front of a different Judge and for a different purpose ( Northrop v. Thorsen, ___ AD3d ___ [2nd Dept., Dec. 18, 2007]). As a result, defendant Minchew is under no obligation to file a late notice of claim and therefore, dismissal of the third-party complaint is warranted ( see CPLR § 3211 [a][1], [a][7]; Northrop v. Thorsen, ___AD3d___, [2nd Dept., Dec 18, 2007]; Johnson v. Berger, 193 AD2d at 786).
Accordingly, it is,
ORDERED that third-party defendant's motion for summary judgment is granted, and it is further,
ORDERED that remaining parties report to this Court for a complaince conference on January 23, 2008, at 9:30 a.m., and it is further
ORDERED that the Clerk enter Judgment accordingly.
THIS IS THE DECISION AND ORDER OF THE COURT.