Legal Malpractice

CPLR 321 and a Very Long Statute of Limitations in Legal Malpractice

By (Andrew Lavoott Bluestone)

Law.Com reports the Gotay v. Brietbart2008 NY Slip Op 08432
Decided on November 6, 2008
Appellate Division, First Department
Lippman, P.J., case.  This case addresses what may be the last reference to a change in New York law which roiled the waters for several years.  Once, long ago, an action was commenced by service of the summons, etc, upon the defendant.  No index number was necessary, and there was no oversight of these cases.  The legislature changed to the federal system, where an action was commenced by purchase of an index number.  Besides serving a revenue creation process, at least it was clear that an action was commenced on a date certain.  What of the cases already in progress? 

This Gotay legal malpractice case illustrates one of the problems.  "Although Supreme Court granted defendants' motion to dismiss the action for failure to state a cause of action, this Court reversed (14 AD3d 452 [2005]), finding, inter alia, that the complaint adequately alleged that HHM had been negligent in failing to apply for an order of filing nunc pro tunc in the medical malpractice action (at 454). Defendants then moved for summary judgment, asserting that the action was time-barred and that there was no proof of damages attributable to the alleged negligence. Plaintiff cross-moved for summary judgment, arguing that the medical malpractice should be deemed admitted. Ultimately, upon reargument, Supreme Court denied the HHM defendants' motions, finding that those defendants had failed to make a prima facie showing that the attorney-client relationship had ended more than three years before plaintiff commenced this action. "

Full post as published by New York Attorney Malpractice Blog on November 10, 2008 (boomark / email).