LIPORACE v. NEIMARK NEIMARK LLP (2018)

Orders, Supreme Court, New York County (Nancy M. Bannon, J.), entered July 18, 2016, which, to the extent appealed from as limited by the briefs, denied defendants' motions to dismiss the legal malpractice claim as against them, unanimously affirmed, without costs.

The complaint sufficiently alleges a claim for legal malpractice against both the Budin defendants and the Neimark defendants as plaintiff has sufficiently met the minimum pleading requirements (see Schwartz v. Olshan Grundman Frome & Rosenzweig, 302 A.D.2d 193, 198, 753 N.Y.S.2d 482 [1st Dept. 2003] ).

The Budin defendants, as successor counsel, had an opportunity to protect plaintiff's rights by seeking discretionary leave, pursuant to General Municipal Law § 50–e(5), to serve a late notice of claim.  Whether the Budin defendants would have prevailed on such motion will have to be determined by the trier of fact (see Davis v. Isaacson, Robustelli, Fox, Fine, Greco & Fogelgaren, 284 A.D.2d 104, 726 N.Y.S.2d 86 [1st Dept. 2001], lv denied 97 N.Y.2d 613, 742 N.Y.S.2d 606, 769 N.E.2d 353 [2002];  F.P. v. Herstic, 263 A.D.2d 393, 693 N.Y.S.2d 123 [1st Dept. 1999] ).  We do not find this determination to be speculative given that Supreme Court will weigh established factors in exercising its General Municipal Law § 50–e(5) discretion (see e.g. Rodriguez v. City of New York, 144 A.D.3d 574, 40 N.Y.S.3d 903 [1st Dept. 2016];  Matter of Strohmeier v. Metropolitan Transp. Auth., 121 A.D.3d 548, 993 N.Y.S.2d 888 [1st Dept. 2014] ).

We agree with plaintiff's argument that the Neimark defendants' failure to serve a timely notice of claim, as of right, on the New York City Department of Education in the underlying personal injury action remains a potential proximate cause of his alleged damages.  Plaintiff has a viable claim against the Neimark defendants despite the fact that the Budin defendants were substituted as counsel before the expiration of time to move to serve a late notice of claim.  Thus, the Budin defendants' substitution can only be deemed a superseding and intervening act that severed any potential liability for legal malpractice on the part of the Neimark defendants if a determination is made that a motion for leave to serve a late notice of claim would have been successful in the underlying personal injury action (see Pyne v. Block & Assoc., 305 A.D.2d 213, 760 N.Y.S.2d 30 [1st Dept. 2003] ).

The Decision and Order of this Court entered herein on January 9, 2018 (157 A.D.3d 473 [1st Dept. 2018] ) is hereby recalled and vacated (see M–665 and M–667, decided simultaneously herewith).