Legal Malpractice

Strange Bed-Fellows in Legal Malpractice

By (Andrew Lavoott Bluestone)

Demonstrating the ancient rubric, "the enemy of my enemy is my friend" the case of Rosenstrauss v Women's Imaging Ctr. of Orange County ;2008 NY Slip Op 08473 ; Decided on November 5, 2008 Appellate Division, Second Department    shows us how a procedural issue forces plaintiff to espouse the defense of the legal malpractice defendant attorneys, in order to save the legal malpractice case.  As we said yesterday, there is no lack of irony in legal malpractice,
 

Plaintiff was a medical malpractice plaintiff, and her case was marked off calendar when depositions stalled.  It was still pre-note of course, and was not restored within one year.  Remember that pre-note dismissals are different from post-note dismissals,

Plaintiff sues her attorneys for legal malpractice and they defend by saying that the dismissal was baseless.  They seem to have a point, especially under the Lopez v. Imperial Delivery Serv. (282 AD2d 190 case concerning pre-note dismissals,  so what is a legal malpractice plaintiff to do>

Here they chose to try to fix the med mal case. They did not succeed.  From the dissenting opinion:

"The procedural device of dismissing an action for delay in prosecution is a legislative creation, not a part of the court's inherent power (see Airmont Homes v Town of Ramapo, 69 NY2d 901, citing Cohn v Borchard Affiliations, 25 NY2d 237). Indeed, it is well settled that a pre-note of issue action can only be dismissed for failure to prosecute if the preconditions contained in CPLR 3216 are met (see Baczkowski v Collins Constr. Co., 89 NY2d 499; Travis v Cuff, 28 AD3d 749; Hodge v New York City Tr. Auth., 273 AD2d 42). "CPLR 3216, as it now reads, is extremely forgiving of litigation delay. A court cannot dismiss an action for neglect to prosecute unless: at least one year has elapsed since joinder of issue; defendant has served on plaintiff a written demand to serve and file a note of issue within 90 days; and plaintiff has failed to serve and file a note of issue within the 90 day period (CPLR 3216[b])" (Baczkowski v Collins Constr. Co., 89 NY2d at 503). It is undisputed in this case that no demand to serve and file a note of issue within 90 days was ever served upon the plaintiff.

In my view, it is improper for the majority to obtain the prohibited result of dismissal of this action for neglect to prosecute despite the lack of compliance with CPLR 3216, merely by terming the rationale for the result as laches, particularly where, as here, the application of the doctrine of laches is contrary to established precedent (see Lopez v Imperial Delivery Serv., 282 AD2d 190). This action was improperly dismissed pursuant to CPLR 3404, and the conditions of CPLR 3216 were not met. As such, the plaintiff is entitled to have the March 20, 1996, dismissal of the medical malpractice action vacated and the action restored to the trial calendar. Therefore, I respectfully dissent. "

Full post as published by New York Attorney Malpractice Blog on November 21, 2008 (boomark / email).