Legal Malpractice

Legal Malpractice in the Failure to Do Discovery?

By (Andrew Lavoott Bluestone)

Plaintiff, a kid on in-line skates, runs into debris at a construction site.  He hires defendant attorneys to sue the construction defendants and the land owner for debris on a public sidewalk.  First he loses against one defendant, and then, by res judicata against the other,  Why did he lose? 

If, on the one hand it was because the debris was open and obvious, then it was not the attorney's fault.  If, on the other hand it was because his attorneys did not do discovery, then there may be legal malpractice.  Gamer v. Ross, 2008 NY Slip Op 02107, Decided on March 11, 2008 ,
Appellate Division, Second Department , look at that question.

"Moreover, a landowner may be held liable for injuries sustained by a third party due to the defective condition of a sidewalk adjoining its property where it retains an independent contractor to perform work for its benefit, the contractor creates a special danger upon the sidewalk in the course of its work that is inherent in the work and anticipated by the landowner, and the landowner has notice of the condition (see Emmons v City of New York, 283 AD2d 244, 245; cf. Schwartz v Merola Bros. Constr. Corp., 290 NY 145, 155). Since it is well settled that, under those circumstances, "such owner will be liable for injuries resulting from its nonperformance, even though the work is done by [a] contractor" (2A NYJur2d Agency § 413), we cannot subscribe, on the facts presented, to the defendants' view that no amount of additional discovery could have prevented the dismissal of the underlying actions against the landowner and contractor.

Equally unavailing is the defendants' claim that the instant action is barred by principles of res judicata and collateral estoppel. Contrary to the defendants' contention, the pretrial dismissal of the underlying actions did not constitute conclusive proof that those actions were without merit; it showed only that the plaintiffs were unable to raise triable issues of fact regarding the potential [*3]liability of the landowner and its contractor. The plaintiffs are not precluded by principles of res judicata or collateral estoppel from alleging, in the instant action, that their inability to raise triable issues of fact in the underlying actions was caused by the defendants' failure to conduct proper discovery. "

Full post as published by New York Attorney Malpractice Blog on March 25, 2008 (boomark / email).