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Access over workers' compensation decisions, including En Banc, Significant Panel Decisions, and writ-denied cases.

Case No. MISSING
Regular Panel Decision
Mar 31, 2011

Gaskin v. Harris

The plaintiff appealed an order from the Supreme Court, Kings County. The order denied her motion for summary judgment and granted the defendant’s cross-motion to dismiss her complaint, which sought damages for legal malpractice and breach of contract. The appellate court affirmed the denial of summary judgment due to procedural prematurity. However, it reversed the dismissal of the legal malpractice claim, finding the plaintiff adequately alleged negligence concerning workers' compensation advice and settlement guidance. The court upheld the dismissal of the breach of contract claim as duplicative and the claim for emotional distress damages, limiting recovery in malpractice actions to pecuniary loss.

Legal MalpracticeSummary Judgment MotionMotion to Dismiss ComplaintCPLR 3211CPLR 3212Breach of Contract ClaimWorkers' CompensationPecuniary Loss DamagesEmotional Distress DamagesAppellate Review
References
26
Case No. MISSING
Regular Panel Decision

Fireman's Fund Insurance v. Farrell

This case involves an appeal and cross-appeal in a legal malpractice action. Defendant James P. Farrell, Jr., a lawyer, represented Six G’s Contracting Corp. in a personal injury action. Farrell failed to timely notify the State Insurance Fund (SIF) of a third-party action against Six G’s, leading SIF to disclaim coverage. Six G’s assigned its malpractice claim to Joseph Gazza and Fireman’s Fund Insurance Company, the plaintiffs. The Supreme Court denied Farrell’s motion to dismiss the complaint for failure to state a cause of action and denied the plaintiffs’ cross-motion for summary judgment. The appellate court affirmed the Supreme Court’s order, concluding that the complaint sufficiently stated elements of legal malpractice and that the issue of SIF's waiver of disclaimer was a question of fact, not determinable as a matter of law.

Legal MalpracticeProfessional NegligenceInsurance DisclaimerSummary JudgmentMotion to DismissAssignment of ClaimWorkers' CompensationIndemnificationAppellate ReviewCausation
References
7
Case No. MISSING
Regular Panel Decision

Goldberg v. Edson

The plaintiffs appealed two orders from the Supreme Court, Rockland County. The first order, dated January 5, 2006, granted summary judgment to defendants Page Edson and the County of Rockland, dismissing the complaint against them regarding claims of legal and medical malpractice. The second order, dated January 23, 2006, granted summary judgment to defendant Elizabeth O’Connor, dismissing the complaint against her for legal malpractice. The appellate court affirmed both orders, finding that Edson and the County were immune from liability under Social Services Law § 419 for reporting suspected child abuse and removing a child, and that O’Connor was not negligent in her legal services.

Legal MalpracticeMedical MalpracticeSummary JudgmentChild Abuse ReportingSocial Services LawImmunityMandated ReportersAppellate ReviewGood FaithNegligence
References
6
Case No. MISSING
Regular Panel Decision
Feb 09, 2015

Allied Waste North America, Inc. v. Lewis, King, Krieg & Waldrop, P.C.

This memorandum addresses multiple summary judgment motions in a legal malpractice, breach of contract, and breach of fiduciary duty case. Plaintiffs, Allied Waste North America, Inc., and BFI Waste Services, LLC, sued three law firms and their members for alleged negligence in an underlying state court litigation that resulted in a $7.2 million verdict. The court denied the defendants' motions for summary judgment regarding the statute of limitations, finding factual disputes about when the plaintiffs should have discovered the malpractice. It also denied summary judgment on the legal malpractice claims, citing conflicting expert testimony. The court granted partial summary judgment on damages, limiting the plaintiffs' recovery to their $2.5 million self-insured retention and litigation costs, while denying the application of the collateral source rule. Furthermore, the court granted plaintiffs' motion for summary judgment, rejecting defendants' affirmative defenses of assumption of risk and comparative fault based on the plaintiffs' refusal to settle the underlying case. Lastly, the court granted Levine Orr Defendants' motion for partial summary judgment on the breach of contract claim but denied it for the breach of fiduciary duty claim due to remaining factual questions.

Legal MalpracticeBreach of ContractBreach of Fiduciary DutyStatute of LimitationsSummary JudgmentCollateral Source RuleDamages LimitationExpert Witness TestimonyProfessional JudgmentAttorney Negligence
References
80
Case No. MISSING
Regular Panel Decision

Toma v. Ahders

This case involves an appeal from a summary judgment that terminated a legal malpractice action. The Appellant, a welder, suffered a back injury and claims his employer offered to file his worker's compensation claim. After a significant delay, a worker's compensation claim was filed in 1984, which was subsequently denied by the Texas Industrial Accident Board in 1985 due to a failure to establish a compensable injury. The Appellant then initiated a legal malpractice suit against the Appellee, alleging negligence in failing to notify him of the claim denial or to appeal the adverse ruling. The trial court initially granted summary judgment against the Appellant, citing the untimeliness of the original claim. However, the appellate court reversed this decision, concluding that there was a genuine issue of material fact regarding whether the Appellant, an Iraqi refugee with limited English proficiency, acted with ordinary prudence by relying on his employer's representations to file the claim.

Legal MalpracticeSummary Judgment AppealWorker's Compensation ClaimGood Cause DefenseTimeliness of FilingEmployer RelianceLanguage BarrierDiligence StandardOrdinary PrudenceEvidentiary Burden
References
5
Case No. MISSING
Regular Panel Decision

Northrop v. Thorsen

The plaintiff sued the defendant attorney for legal malpractice, alleging that the defendant's failure to obtain consent from the workers' compensation carrier (ERM Claim Services, Inc.) or a court compromise order, as required by Workers' Compensation Law § 29 (5), led to the termination of the plaintiff's workers' compensation benefits. The Supreme Court denied the defendant's motion for summary judgment but precluded the plaintiff from offering expert testimony. On appeal, the court ruled that expert testimony was not needed as the defendant's conduct clearly fell below the standard of care by disregarding a well-established legal rule. The appellate court found the defendant's negligence was the proximate cause of the plaintiff's damages and rejected the argument that the plaintiff failed to mitigate damages. The order was modified, denying the defendant's summary judgment motion and awarding summary judgment on liability to the plaintiff.

Legal MalpracticeWorkers' CompensationProfessional NegligenceSummary JudgmentAttorney DutyProximate CauseMitigation of DamagesNunc Pro TuncWorkers' Compensation LawAppellate Review
References
19
Case No. MISSING
Regular Panel Decision
Aug 24, 2001

Marcano v. Litman & Litman, P.C.

This case concerns an action for legal malpractice brought by a laborer who suffered a construction site injury. The plaintiff alleged that the defendant-appellant law firm, specializing in workers' compensation, committed malpractice by failing to advise him about potential third-party personal injury claims or to verify if such claims were being handled by the defendant-respondent personal injury law firm. The defendant-appellant moved for summary judgment, arguing it owed no such duty since the plaintiff had already consulted with a personal injury lawyer. However, the Supreme Court, New York County, denied this motion, a decision later unanimously affirmed by the appellate court. The appellate court found a material issue of fact, emphasizing the appellant's affirmative duty to ensure the plaintiff understood the limits of its representation and its alleged repeated assurances that his personal injury claims were "being taken care of."

legal malpracticeworkers' compensationpersonal injuryduty of caresummary judgmentlaw firmattorney-client relationshipprofessional responsibilitythird-party claimsappellate decision
References
2
Case No. MISSING
Regular Panel Decision
Sep 25, 1995

Greenwich v. Markhoff

The plaintiff sustained injuries in a 1989 construction accident and retained law firms, Markhoff & Lazarus, and subsequently Scheine, Fusco, Brandenstein & Rada, P. C., to represent his interests. These firms allegedly limited their representation to a Workers’ Compensation claim and failed to initiate a personal injury action against the responsible parties before the Statute of Limitations expired. Consequently, the plaintiff filed a legal malpractice lawsuit against both law firms. The Supreme Court initially dismissed the complaint against Markhoff & Lazarus due to the timing of counsel substitution and the applicable Statute of Limitations for malpractice. However, the dismissal of the claim against Scheine, Fusco, Brandenstein & Rada, P. C. was found to be erroneous, as the action was timely, and the scope of their professional duty was not limited by their retainer agreement. The Appellate Division modified the lower court's decision, reinstating the malpractice claim against Scheine, Fusco, Brandenstein & Rada, P. C., while affirming the dismissal pertaining to Markhoff & Lazarus.

Legal MalpracticeStatute of LimitationsPersonal Injury ClaimScope of RepresentationRetainer AgreementDismissal of ComplaintReinstatement of ClaimAppellate ReviewProximate CauseActual Damages
References
11
Case No. MISSING
Regular Panel Decision

Legal Aid Society v. Association of Legal Aid Attorneys

The Legal Aid Society sought a preliminary injunction against the Association of Legal Aid Attorneys and its officers to prevent the disciplining of striking union members who crossed picket lines. The plaintiff also claimed tortious interference and a civil rights conspiracy under 42 U.S.C. § 1985(3) on behalf of itself, non-striking attorneys, and indigent clients. The District Court denied the injunction, finding several impediments to success on the merits. These included the NLRB's primary jurisdiction, the Norris-LaGuardia Act's prohibitions, and the plaintiff's lack of standing for third-party claims. Furthermore, the court determined that the conspiracy allegations under Section 1985(3) were conclusory and lacked substantial merit.

Labor DisputePreliminary InjunctionUnion DisciplinePicket LinesNational Labor Relations Act (NLRA)Norris-LaGuardia ActStanding (Law)Conspiracy (Law)Civil Rights (42 U.S.C. § 1985(3))Tortious Interference
References
32
Case No. MISSING
Regular Panel Decision

Smith v. City of New York

Charles Smith, acting pro se, filed a civil rights action under 42 U.S.C. §§ 1983, 1985, and 1986 against the City of New York and several of its departments (city defendants), and the Legal Aid Society of New York. Smith alleges constitutional violations related to his arrest, incarceration, and trial for his wife's murder, including false arrest, battery, and unconstitutional searches. He also asserts pendent state claims such as legal malpractice against Legal Aid. Legal Aid moved to dismiss all claims or for summary judgment, arguing it is not a state actor for Section 1983 purposes and that conspiracy claims were not sufficiently pled. The city defendants moved to consolidate this action with two prior cases in the Southern District of New York. The court granted in part and denied in part Legal Aid's motion, dismissing federal claims but denying dismissal of the state law legal malpractice claim. The court denied consolidation with cases in another district but, sua sponte, ordered the transfer of the entire action, including the remaining malpractice claim, to the Southern District of New York for consolidation with the related cases, finding it would serve the convenience of parties and witnesses and promote judicial efficiency.

Civil Rights ViolationSection 1983Section 1985Section 1986Legal MalpracticeMotion to DismissSummary JudgmentTransfer of VenueConsolidationState Actor Doctrine
References
54
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