A Central NY Legal Malpractice Case Explained

Just in case you were wondering how a New York legal malpractice case works (come on, admit it, you were wondering about that all day!), I have a “case study” for you.

I recently sued a lawyer on behalf of a widow and her child. I took over their case after the lawyer had mishandled it. The facts of the mishandled case went like this (in simplified form): a public official had, through his negligence, killed the widow’s husband, but before he died, he went through a terrible amount of agony and suffering. This meant that the widow had two claims:

One claim was for “wrongful death” (“WD”), which mainly means a suit for lost income. The concept of the WD suit is that, had the widow’s husband not been killed, he would have continued supporting her and their children, but now he was dead, and dead men don’t pay the bills.

The other claim was for conscious pain and suffering (“CPS”). The idea here is that, if the husband had survived his ordeal, he would have been able to sue the public official (and his employer) for his pain and suffering. And although he died, his pain and suffering claim did not, because the law allows the widow to sue for the deceased husband’s CPS.

Now we get to the legal malpractice case. When I took the case over from the former lawyer, I noticed right away that he had made a big mistake. He had missed one of the two statutes of limitations. You see, the WD statute of limitations is not the same as the CPS statute of limitations. If you are suing a private citizen, the CPS is generally longer, three years, whereas the WD is shorter, two years. But when you sue most public officials (and their government employers), it’s the opposite. The CPS statute of limitations is generally shorter (one year and ninety days) whereas the WD statute of limitations is longer (two years).

Since this case was against a public official and his governmental employer, there was a one-year-90-day statute of limitations for the CPS claim. The lawyer’s mistake was in assuming it was two years. I took over the case after the year and 90 days, but before the two years.

Well, we sued out the wrongful death case in time, and settled it at trial for well over a million dollars. But the CPS claim was dismissed because it was brought too late (not my fault, but the first lawyer’s).

So now what do we do about that dismissed CPS claim? After all, the widow needs the money, and is entitled to it. She just can’t get it from the original wrongdoer, the public official, because she did not sue him in time. But from the ashes of the botched first case arises a phoenix: The widow can sue her first lawyer for the CPS. Why? Because he negligently deprived her of her day in court against the public official for the CPS.

Don’t worry too much about the first lawyer; like most lawyers, he has malpractice insurance. Will the insurance pay the widow? Sure, because she’s got a very strong malpractice case against the insured lawyer. It’s strong because when a lawyer misses a statute of limitations, as this one did, he is automatically guilty of negligence. Just about the only way such a lawyer can beat a legal malpractice claim is by arguing that his mistake was harmless.

How could blowing the statute of limitations be harmless? Here’s how: If the widow would have lost the case against the public official at trial because the case had no merit, then it doesn’t matter that the lawyer blew the statute of limitations. The claim was doomed to die at trial anyway. In other words, if the lawyer blew the statute of limitations on a dead-end claim, then the widow has a dead-end legal malpractice case. Fair enough!

But (thankfully) that’s not the case here. In this case it is clear to me that the widow would have won her CPS claim at trial against the public official, and for a substantial amount of money. And that means the lawyer’s insurance carrier will have to pay the widow a substantial amount of money. And there’s a word for that: Justice.

Keep safe!

Mike Bersani
Email me at: bersani@mbk-law.com I’d love to hear from you!

Michael G. Bersani, Esq.
mbk-law.com Central & Syracuse NY Legal Malpractice Lawyers
Michaels Bersani Kalabanka


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