Verdicts

When a medical malpractice case was dismissed because the plaintiff's law firm failed to have the case placed on the court's calendar, the associates at the law firm representing the plaintiff were not excused from potential liability for legal malpractice on account of their status as associates, and not partners. Scarborough v. Napoli, Kaiser & Bern, LLP, — N.Y.S.2d —-, 2009 WL 1565181 (N.Y.A.D. 4 Dept. 6/5/09).

Plaintiff, son of the deceased alleged medical malpractice victim, retained the defendant law firm to represent him in his suit against his father's medical providers. The law firm consists of two partners and three associates. Ultimately, all parties here agreed, only one medical defendant's alleged negligence could potentially have led to recovery in the underlying medical malpractice case. The medical malpractice action was dismissed, however, because the law firm failed to timely file a statutorily required note of issue, which would have prompted the court to place the case on its calendar. Following the dismissal, the defendants asked the med-mal plaintiff to sign a stipulation of discontinuance of the underlying action, but allegedly did not inform him that the action had already been dismissed. Instead, he was allegedly told only that his case had no likelihood of success. Later, the plaintiff learned the real reason for the dismissal and brought suit against the law firm, its partners and three associates for legal malpractice. The defendants moved for dismissal based on the ground that the underlying medical malpractice action could not have succeeded, as the actions complained of were not the proximate cause of the decedent's death. Thus, any legal malpractice had no effect on the plaintiff. The defense also sought dismissal of the claims against the associates in the firm, on the theory that, as associates and not partners, they were not legally responsible for any legal malpractice. The court granted dismissal of the claims against the associates, but would not grant summary judgment based on the contention that the underlying medical malpractice claim was without merit.