Verdicts

Plaintiff May Sue for Legal Malpractice

A New York appeals court has held that a plaintiff seeking damages for losses due to legal malpractice does not waive the right to recover simply because he voluntarily discontinued the underlying lawsuit. Grace v. Law, CA 13-0036 (N.Y. App. Div., 4th Dept., 8/22/13).

The plaintiffs sought damages for substandard treatment of an eye condition at the Veterans Administration Outpatient Clinic in Rochester, NY, which allegedly led to the patient's loss of sight in one eye. They retained the services of' defendants Robert L. Brenna, Jr. and Brenna, Brenna & Boyce, PLLC (the Brenna defendants). In accordance with the Federal Tort Claims Act (FTCA) 28 USC ' 2671 et seq.), the Brenna defendants lodged a claim against the United States in August 2006. When the government did not respond within six months the plaintiffs were free to file suit in federal court. The Brenna defendants recommended that the plaintiffs retain Michael R. Law and Phillips Lytle, LLP (the Law defendants) to press that case, and they did. The suit against the United States was filed on Jan. 3, 2008.

The government, in preparing its case, learned that the physician who provided most of the patient's care was not, in fact, employed by the federal government, but by the University of Rochester. Therefore, in October 2008, it sought leave to file a third-party claim against the doctor and the University of Rochester. Next, on May 22, 2009, the Brenna defendants (who had by this time once again taken over the case) filed an amended complaint in federal court naming the doctor and the university as defendants and asserting state-law claims against them for medical malpractice.

The District Court granted these defendants' motions for summary judgment on the state law claims, finding them time-barred. It also dismissed the FTCA claims pertaining to the doctor's and university's actions because the doctor was an independent contractor; as such, the federal government was not responsible for the doctor's treatment of the patient. The only remaining claim against the government was a minor one: that the VA was negligent in failing to reschedule an ophthalmology appointment after a July 2003 appointment was canceled. Because this claim was not worth pursuing, the plaintiffs voluntarily discontinued their suit. They then sued the Brenna and Law defendants for failing to timely name the doctor and university as defendants. The attorneys sought dismissal and were denied.

On appeal, the defendants argued that the plaintiffs had given up their right to seek damages for legal malpractice when they voluntarily had the case dismissed and did not appeal the District Court's dismissal of the major claims. Their argument rested on the court's own decision in Rupert v. Gates & Adams, P.C., 83 AD3d 1393, 1396, a matrimonial case in which the plaintiff sought damages for legal malpractice from his attorneys after he entered a stipulation of settlement with his wife. The court concluded in Rupert that “plaintiff consented to the dismissal on the merits of any appeal in the matrimonial action as part of the global settlement resolving a bankruptcy proceeding in which he was involved. In so doing, plaintiff precluded pursuit of the very means by which defendants' representation of plaintiff in the matrimonial action could have been vindicated 'We therefore conclude that plaintiff, by virtue of his global settlement, waived the right to raise those shortcomings in this legal malpractice action.”

Based on this, the defendants here argued that the court had announced a per se rule that one who voluntarily discontinues an underlying action and forgoes an appeal abandons his right to pursue a claim for legal malpractice. The court refused to extend its holding in Rupert to all cases, stating, “[S]uch a rule would force parties to prosecute potentially meritless appeals to their judicial conclusion in order to preserve their right to commence a malpractice action, thereby increasing the costs of litigation and overburdening the court system.” Additionally, the time wasted pursuing a dubious appellate remedy could result in expiration of the statute of limitations from bringing a malpractice claim.

Having rejected a per se rule, the court turned to the question of summary judgment in this action. It concluded dismissal of the legal malpractice claims was not warranted because the' defendants failed to establish as a matter of law that any alleged negligence on their part was not a proximate cause of plaintiff's damages.

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Plaintiff May Sue for Legal Malpractice

A New York appeals court has held that a plaintiff seeking damages for losses due to legal malpractice does not waive the right to recover simply because he voluntarily discontinued the underlying lawsuit. Grace v. Law, CA 13-0036 (N.Y. App. Div., 4th Dept., 8/22/13).

The plaintiffs sought damages for substandard treatment of an eye condition at the Veterans Administration Outpatient Clinic in Rochester, NY, which allegedly led to the patient's loss of sight in one eye. They retained the services of' defendants Robert L. Brenna, Jr. and Brenna, Brenna & Boyce, PLLC (the Brenna defendants). In accordance with the Federal Tort Claims Act (FTCA) 28 USC ' 2671 et seq.), the Brenna defendants lodged a claim against the United States in August 2006. When the government did not respond within six months the plaintiffs were free to file suit in federal court. The Brenna defendants recommended that the plaintiffs retain Michael R. Law and Phillips Lytle, LLP (the Law defendants) to press that case, and they did. The suit against the United States was filed on Jan. 3, 2008.

The government, in preparing its case, learned that the physician who provided most of the patient's care was not, in fact, employed by the federal government, but by the University of Rochester. Therefore, in October 2008, it sought leave to file a third-party claim against the doctor and the University of Rochester. Next, on May 22, 2009, the Brenna defendants (who had by this time once again taken over the case) filed an amended complaint in federal court naming the doctor and the university as defendants and asserting state-law claims against them for medical malpractice.

The District Court granted these defendants' motions for summary judgment on the state law claims, finding them time-barred. It also dismissed the FTCA claims pertaining to the doctor's and university's actions because the doctor was an independent contractor; as such, the federal government was not responsible for the doctor's treatment of the patient. The only remaining claim against the government was a minor one: that the VA was negligent in failing to reschedule an ophthalmology appointment after a July 2003 appointment was canceled. Because this claim was not worth pursuing, the plaintiffs voluntarily discontinued their suit. They then sued the Brenna and Law defendants for failing to timely name the doctor and university as defendants. The attorneys sought dismissal and were denied.

On appeal, the defendants argued that the plaintiffs had given up their right to seek damages for legal malpractice when they voluntarily had the case dismissed and did not appeal the District Court's dismissal of the major claims. Their argument rested on the court's own decision in Rupert v. Gates & Adams, P.C. , 83 AD3d 1393, 1396, a matrimonial case in which the plaintiff sought damages for legal malpractice from his attorneys after he entered a stipulation of settlement with his wife. The court concluded in Rupert that “plaintiff consented to the dismissal on the merits of any appeal in the matrimonial action as part of the global settlement resolving a bankruptcy proceeding in which he was involved. In so doing, plaintiff precluded pursuit of the very means by which defendants' representation of plaintiff in the matrimonial action could have been vindicated 'We therefore conclude that plaintiff, by virtue of his global settlement, waived the right to raise those shortcomings in this legal malpractice action.”

Based on this, the defendants here argued that the court had announced a per se rule that one who voluntarily discontinues an underlying action and forgoes an appeal abandons his right to pursue a claim for legal malpractice. The court refused to extend its holding in Rupert to all cases, stating, “[S]uch a rule would force parties to prosecute potentially meritless appeals to their judicial conclusion in order to preserve their right to commence a malpractice action, thereby increasing the costs of litigation and overburdening the court system.” Additionally, the time wasted pursuing a dubious appellate remedy could result in expiration of the statute of limitations from bringing a malpractice claim.

Having rejected a per se rule, the court turned to the question of summary judgment in this action. It concluded dismissal of the legal malpractice claims was not warranted because the' defendants failed to establish as a matter of law that any alleged negligence on their part was not a proximate cause of plaintiff's damages.

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