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MOTIONS TO DISMISS LEGAL MALPRACTICE CAUSES OF ACTION AGAINST ORIGINAL COUNSEL FOR FAILING TO FILE A NOTICE OF CLAIM AND AGAINST SUCCESSOR COUNSEL FOR FAILURE TO SEEK LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (FIRST DEPT).

The First Department determined the motions to dismiss the legal malpractice causes of action against original (Neimark defendants) and successor counsel (Budin defendants) were properly denied. Original counsel did not file a notice of claim and successor counsel did not seek leave to file a late notice of claim:

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 … . 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 … .

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 … . Liporace v Neimark & Neimark, LLP, 2018 NY Slip Op 04668, First Dept 6-26-18

​ATTORNEYS (MALPRACTICE, MOTIONS TO DISMISS LEGAL MALPRACTICE CAUSES OF ACTION AGAINST ORIGINAL COUNSEL FOR FAILING TO FILE A NOTICE OF CLAIM AND AGAINST SUCCESSOR COUNSEL FOR FAILURE TO SEEK LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (FIRST DEPT))/LEGAL MALPRACTICE (MOTIONS TO DISMISS LEGAL MALPRACTICE CAUSES OF ACTION AGAINST ORIGINAL COUNSEL FOR FAILING TO FILE A NOTICE OF CLAIM AND AGAINST SUCCESSOR COUNSEL FOR FAILURE TO SEEK LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (FIRST DEPT))/NEGLIGENCE (LEGAL MALPRACTICE, MOTIONS TO DISMISS LEGAL MALPRACTICE CAUSES OF ACTION AGAINST ORIGINAL COUNSEL FOR FAILING TO FILE A NOTICE OF CLAIM AND AGAINST SUCCESSOR COUNSEL FOR FAILURE TO SEEK LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (FIRST DEPT))/EDUCATION-SCHOOL LAW (NOTICE OF CLAIM, LEGAL MALPRACTICE, MOTIONS TO DISMISS LEGAL MALPRACTICE CAUSES OF ACTION AGAINST ORIGINAL COUNSEL FOR FAILING TO FILE A NOTICE OF CLAIM AND AGAINST SUCCESSOR COUNSEL FOR FAILURE TO SEEK LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (FIRST DEPT))/NOTICE OF CLAIM (EDUCATION-SCHOOL LAW, LEGAL MALPRACTICE, MOTIONS TO DISMISS LEGAL MALPRACTICE CAUSES OF ACTION AGAINST ORIGINAL COUNSEL FOR FAILING TO FILE A NOTICE OF CLAIM AND AGAINST SUCCESSOR COUNSEL FOR FAILURE TO SEEK LEAVE TO FILE A LATE NOTICE OF CLAIM PROPERLY DENIED (FIRST DEPT))

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