108 A.D.3d 1173
N.Y. App. Div.2013Background
- Plaintiff sued for legal malpractice arising from defense of a prior VA eye-treatment medical malpractice action.
- Brenna defendants initially filed an administrative tort claim; later Law defendants were engaged to pursue federal FTCA claims.
- Federal action against the government and VA was filed in 2008; third-party action added against Dr. Boghani and the U of R, creating a conflict for Law defendants.
- In 2010–2011 the U of R and Dr. Boghani were dismissed as time-barred; FTCA claims against the government were dismissed as to the VA-related negligence; remaining claim concerned rescheduling of a cancelled ophthalmology appointment.
- In 2011 the federal action was discontinued; plaintiff then sued in state court for legal malpractice against Brenna and Law defendants.
- Supreme Court denied Brenna’s summary-judgment motion and denied Law defendants’ summary-judgment motion; Law defendants were granted leave to amend their answer on a statute-of-limitations issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of malpractice claim by discontinuance | Discontinuance did not bar malpractice claim; no appeal required for preservation. | Rupert v Gates & Adams creates a per se waiver when underlying action is discontinued without appeal. | Rupert rule not extended; waiver not per se; no absolute bar. |
| Whether continuous representation tolls the statute of limitations | Continued representation tolled the limitations period. | No tolling without substantial record of ongoing representation. | Triable issue remains regarding tolling under the continuous-representation doctrine. |
| Proximate causation for damages from alleged malpractice | Defendants’ conduct possibly caused damages; underlying record supports appeal-based analysis. | Unable to prove that negligence was not a proximate cause; record incomplete for full appellate record. | Defendants failed to prove as a matter of law absence of proximate cause; triable issue remains. |
Key Cases Cited
- Velie v. Ellis Law, P.C., 48 AD3d 674 (N.Y. App. Div. 2008) (elements of legal malpractice requirement)
- Boglia v. Greenberg, 63 AD3d 973 (N.Y. App. Div. 2009) (summary judgment standard in malpractice actions)
- Pignataro v. Welsh, 38 AD3d 1320 (N.Y. App. Div. 2007) (elements of legal malpractice; appellate relief relevant)
- Rupert v Gates & Adams, P.C., 83 AD3d 1393 (N.Y. App. Div. 2011) (waiver of malpractice claims in settlement context)
- MB Indus., LLC v CNA Ins. Co., 74 So.3d 1173 (Fla. 2011) (limits of per se waiver rule in malpractice context)
- Hewitt v Allen, 118 Nev. 216 (Nev. 2002) (policy considerations on appellate remedies in malpractice actions)
- Eastman v Flor-Ohio, Ltd., 744 So.2d 499 (Fla. 1999) (appellate exhaustion and mitigation considerations)
- Segall v Segall, 632 So.2d 76 (Fla. 1993) (appellate relief and malpractice actions)
- Technical Packaging, Inc. v. Hanchett, 992 So.2d 309 (Fla. 2008) (record considerations in tolling and review)
- Lenahan v. Russell L. Forkey, P.A., 702 So.2d 610 (Fla. 1997) (proximity of appeals and malpractice claims)
- Lurch v United States, 719 F.2d 333 (2d Cir. 1983) (employee status under FTCA and control factors)
- Tivoli v United States, 164 F.3d 619 (2d Cir. 1998) (factors for determining federal employee status; independent contractor vs employee)