Legal Malpractice

Legal Malpractice Litigation over Scope of Work

By (Andrew Lavoott Bluestone)

How much does one take on as attorney, and how does that scope of work affect legal malpractice litigation?  In Douglas v. Dashevsky, SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT; 2009 NY Slip Op 4187; 62 A.D.3d 937, ; 880 N.Y.S.2d 667, plaintiff says that she was terminated, and was terminated while disabled.  She retained defendant attorney, and now sues in legal malpractice on the theory that :

"The plaintiff retained the defendant to represent her in a claim against her former employer for wrongfully discharging her as a result of a medical condition. The plaintiff contends that the defendant advised her not to file a claim with her employer's disability carrier and as a result she was denied disability benefits for not filing a timely claim. The defendant moved to dismiss the complaint pursuant [**669] to CPLR 3211(a)(1) and (7). The defendant maintained that the plaintiff retained him solely for the purposes of obtaining a damage award on the wrongful termination claim and restoring her to her prior position. [***2] The defendant argues that the plaintiff's claim that she was disabled at the time and entitled to benefits contradicts the representations that the plaintiff made to him and alleged in her termination action that she was capable of performing her job.

The motion to dismiss was denied.  "Here, the retainer agreements submitted by the defendant do not establish, as a matter of law, that the defendant's obligation was to advise the plaintiff solely with respect to her wrongful termination action against her employer. The one page of the disability carrier's policy along with the complaint from the action alleging wrongful termination fails to conclusively establish that the plaintiff would not otherwise have been entitled to receive benefits under the policy, had she filed a timely claim.""The action is not barred by the doctrine of judicial estoppel since the plaintiff's action predicated upon wrongful termination was settled and did not result in a judgment (see Kimco of [*939] New York, Inc. v Devon, 163 AD2d 573, 575, 558 N.Y.S.2d 630).

Full post as published by New York Attorney Malpractice Blog on September 03, 2009 (boomark / email).