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NY: Procedural Defect Yields Failure to Timely Commence an Action

Wilk v. Lewis & Lewis, P.C., 75 A.D.3d 1063 (4th Dep’t 2010)

NY: Underlying personal injury action

Student Contributor: Zahava Schwartz

Facts: The plaintiff was injured while repairing railroad cars. He hired defendant lawyers to handle this case against his employer. His lawyers did not commence the suit on time and he was time barred and his suit was therefore dismissed. When the lawyers (defendants) commenced a Labor Law and common-law negligence action on behalf of plaintiffs they used the same index number that had been used in the pre-action discovery proceeding. The action was dismissed because in New York, failure to purchase a new index number rendered the case a nullity since it was never properly commenced. Plaintiff argues that his lawyers did not commence his labor law and common law negligence case in a timely manner causing its dismissal. The lawyers argued that even if they had commenced his suit on time he would not have succeeded. The lawyers said that their negligent behavior was not a proximate cause of his loss because successor counsel did not file a notice of appeal and this was an intervening cause to their negligence which caused the dismissal.

Issue: Did the lawyers fail to act with ordinary reasonable skill by allowing the case to be dismissed and was the lawyer’s negligence the proximate cause of plaintiff’s loss?

Rule: Yes. In a legal malpractice case the plaintiff must prove that the lawyer did not act with ordinary reasonable skill that a member of the legal community would have. Also, that this breach of attorney-client duty was a proximate cause of the client’s loss. In order to win the legal malpractice case the plaintiff must show that but for the lawyers’ action he would have succeeded on the merits of the case. The lawyers intervening factor argument was dismissed since they did not prove successor counsel had enough time to adequately protect plaintiff’s rights. The lawyer’s failure to commence the action on time would be enough to show they did not exercise the ordinary reasonable skill. The court denied lawyers’ request to dismiss the complaint and gave plaintiff partial summary judgment.

Lesson: In a malpractice claim not only does the plaintiff need to properly plead the substantive elements of the claim– that the lawyer did not act with ordinary reasonable care that that the breach of duty is the proximate cause of the clients loss, but must also comply with the procedural requirements of how to properly commence the action in a timely manner. 


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Posted in: New York, Proximate Cause, Statute of Limitations, Torts/Personal Injury