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NY: Legal Malpractice No Merit to Underlying Claim? Do Your Discovery!

Riordan v. Cellino & Barnes, P.C., 84 A.D.3d 1737, 922 N.Y.S.2d 728 (2011)

NY: underlying labor and negligence actions

Student Contributor: Alexis Trezza

Facts: Plaintiff commenced a legal malpractice action against defendants seeking damages that plaintiffs alleged resulted from defendants’ negligent representation of Clarence F. Riordan in the underlying Labor Law and common law negligence action. Defendants admit that they were negligent in failing to serve the notice of claim in a timely manner, but claimed that they weren’t liable for legal malpractice because the underlying cause of action was without merit. Plaintiff served a notice to take depositions of two attorneys that were employed by defendant law firm, and defendants moved for a protective order, which was granted.

Issue: Was defendants’ motion for a protective order properly granted?

Holding: No. Pursuant to CPLR 3101(a)(1), “there shall be full disclosure of all matter material and necessary in the prosecution or defense of an action by a party or employee of a party.” This provision has been construed in a liberal way in order to permit discovery “of any facts bearing on the controversy that will assist preparation for trial by sharpening the issues and reducing delay and prolixity.” The test for disclosure “is one of usefulness and reason, and CPLR 3101(a) should be construed to permit discovery of testimony that is sufficiently related to the issues in litigation to make the effort to obtain it in preparation for trial reasonable.” The depositions sought by plaintiff satisfy that test, and defendants failed to meet their burden of making an “appropriate factual showing” that they are entitled to a protective order limiting discovery.

Lesson: CPLR 3101(a)(1) is construed liberally (such that disclosure is preferred). In order to sustain a motion for protective order, defendants must make an appropriate factual showing that they are entitled to same. 

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