DePouli v. Barasch, McGarry, Salzman & Penson, New York Supreme, New York County, January 24, 2011.
Facts: Defendant law firm participated in an information session given by the New York City Bar Association for victims of a crane collapse. At that session, Defendants provided a letter, along with a notice of claim, to prospective claimants.
After the session, DePouli, one of the attendees, retained the law firm. The firm, however, upon further review of the matter, decided that it would not represent DePouli. In the meantime, DePouli’s time to file his notice of claim had expired.
DePouli, thereafter, sued the firm for malpractice, and the firm presented several defenses, including (1) plaintiff had adequate time and information to file the notice of claim himself; and (2) the firm’s decision not to file a notice of claim was protected by the "Professional Judgment Rue."
Issue: Did the firm commit malpractice by failing to timely file a notice of claim on behalf of DePouli?
The Court held that it was sufficient for the firm to have notified DePouli that a notice of claim must be filed by a certain date, provided him with a form notice of claim and attachments. Indeed, the firm had even advised DePouli where the notice must be mailed.
Furthermore, the Court held that the firm’s decision not to pursue suit against the City for plaintiff’s injuries was covered by the "Professional Judgment Rule" in any event.
BMS&P’s choice to not pursue claims against the City, but rather to recover solely from the construction companies, does not support a claim for malpractice. Selection of one among several reasonable courses of action does not constitute malpractice…Neither an error in judgment, nor in choosing a reasonable course of action constitutes malpractice…In order to state a claim for malpractice, plaintiff must allege that the chosen course is bereft of legal authority.
Lesson: The decision would appear to support the notion that counsel are not liable for missing deadlines that a plaintiff could have observed, provided the attorney put them on notice of the deadline and gave them the information necessary to comply with the deadline. Furthermore, an attorney’s decision not to sue every potential defendant is not malpractice, so long as the decision is well-reasoned and can find support in prevailing legal authority.