Plaintiff sufficiently pled a claim as against successor firm and the prior firm. Successor counsel had the chance 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 motion would have succeeded is up to the trier of fact. Denying dismissal is not speculative, as the trial court will weigh the established factors in exercising its § 50-e(5) discretion. Prior counsel failed to serve a timely notice of claim as of right in the underlying personal injury action. Plaintiff has a viable claim in spite of the fact that the successor firm was substituted as counsel before the expiration of time to move to serve a late notice. The substitution will be deemed a superseding and intervening act severing malpractice liability only if it is determined that the motion to file a late claim would have been successful.
Liporace v. Neimark & Neimark, LLP, NY Slip Op 04668 (1st Dep't June 26, 2018)
Here is the decision.
