Partnership Law Section 26 (b) and (c

Posted on April 28, 2023 by Richard Klass

In Hagans v Dell, 213 AD3d 812, 813-14 [2d Dept 2023], the court affirmed the order denying summary judgment to the attorney, holding:

Dell contends that he is immunized from individual liability under Partnership Law § 26 (b). “Partnership Law § 26 (b) . . . immunizes from individual liability any partner in a partnership registered as a limited liability partnership who did not commit the underlying wrongful act, except to the extent that Partnership Law § 26 (c) imposes liability on that partner where he or she directly supervised the person who committed the wrongful act” (Salazar v Sacco & Fillas, LLP, 114 AD3d 745, 747 [2014]; see Ederer v Gursky, 9 NY3d 514, 523 [2007]). Here, Dell established his prima facie entitlement to judgment as a matter of law by submitting the transcript of his deposition testimony and his affidavit demonstrating that he was not involved in handling the plaintiff’s personal injury action and did not supervise the attorney who was responsible.

However, in opposition, the plaintiff raised a triable issue of fact regarding the extent of Dell’s involvement in her personal injury action. The plaintiff submitted documents showing that attorneys at the law firm had consulted with Dell about strategies in responding to motions and seeking a default judgment. A stipulation of discontinuance as to certain defendants in the personal injury action was signed by Dell. In addition, the record reflects that Dell met with the plaintiff to discuss her case at an initial intake meeting, filled out a client fact sheet, and signed the retainer agreement. Under the circumstances, there is a triable issue of fact as to whether Dell was involved in handling the plaintiff’s personal injury action and, as such, was involved in the underlying allegedly wrongful act (see Partnership Law § 26 [c]; Swift Funding, LLC v Isacc, 144 AD3d 471, 472 [2016]).

Richard A. Klass, Esq.
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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.com with any questions.

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Court dealt with the issue re strategic decisions taken by the attorney

Posted on April 4, 2023 by Richard Klass

In RTW Retailwinds, Inc. v Colucci & Umans, 213 AD3d 509, 510 [1st Dept 2023], the court dealt with the issue re strategic decisions taken by the attorney. The court held:

To establish a cause of action for legal malpractice, plaintiff must show that: (1) the attorney was negligent; (2) the attorney’s negligence was a proximate cause of plaintiff’s losses; and (3) plaintiff suffered actual damages (Excelsior Capitol LLC v. K & L Gates LLP, 138 A.D.3d 492, 492, 29 N.Y.S.3d 320 [1st Dept. 2016], lv denied 28 N.Y.3d 906, 2016 WL 6432820 [2016]). Plaintiff must establish that, “but for the attorney’s negligence, plaintiff would have prevailed in the matter in question or would not have sustained any ascertainable damages…. The failure to establish proximate cause mandates the dismissal of a legal malpractice action, regardless of the negligence of the attorney” (Reibman v. Senie, 302 A.D.2d 290, 290–291, 756 N.Y.S.2d 164 [1st Dept. 2003] [internal citations omitted]). Reasonable strategic decisions made by an attorney cannot form the basis of a cause of action for legal malpractice (see Wagner Davis P.C. v. Gargano, 116 A.D.3d 426, 426, 983 N.Y.S.2d 27 [1st Dept. 2014]).

Richard A. Klass, Esq.
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Who’s to Say Who’s an Expert? …Expert witness cannot usurp the role of the judge…

Posted on March 27, 2023 by Richard Klass

Man with exaggerated round glasses and messy hair, dressed in white coat, with hands holding a range of microphones towards his mouth. Illustrating article about expert witnesses for Richard Klass, attorney, New York

The nursing home resident needed to be transported by ambulette to her medical appointment. Being that the resident was wheelchair-bound, she was to be accompanied to the appointment by her nurse’s aide. The ambulette driver met them inside the nursing facility, wheeled the resident to the ambulette, raised the wheelchair onto the lift and wheeled the resident into the ambulette. The driver then strapped the seatbelt on the resident; however, it was alleged the driver failed to secure the wheelchair to the ambulette.

As the driver started driving to the medical appointment, the ambulette stopped short. Since the wheelchair had not been secured to the ambulette, this caused the resident to slide out from her wheelchair. Unfortunately, the resident’s foot bent underneath her and she fractured her tibia.

Safety measures that should have been taken

The resident died six months after the ambulette incident. Her daughter retained Richard A. Klass, Esq., Your Court Street Lawyer, to sue the nursing home and ambulette service for personal injuries sustained by her mother which had caused her severe pain.

The president of the ambulette transportation service testified that the driver should have secured the wheelchair by strapping the wheels to the floor of the vehicle so that the wheelchair would not move. He also testified that a shoulder belt was needed, as a seatbelt couldn’t hold the person well enough as a wheelchair tends to roll. The ambulette transportation service president stated it was the responsibility of the driver to make sure that the person being transported was properly secured in the ambulette.

Summary judgment motion by the nursing home

Based on the above testimony, the nursing home moved for summary judgment, seeking the dismissal of the lawsuit against the nursing home. The nursing home claimed that it was not the responsibility of the nurse’s aide accompanying the resident to make sure that the resident was properly secured in the ambulette when being transported to medical appointments. In support of its motion, the nursing home put forth an affidavit from an engineer designated as an expert witness who stated that it was “clearly the responsibility of the driver to ensure that the patient is securely fastened as it is the driver’s responsibility to ensure the safety of the patient during transportation.” He further opined that, “it is not the responsibility of the attendant to ensure that the patient is securely fashioned [sic].”

Expert witness cannot usurp the role of the judge.

In opposition to the motion, it was urged that the nursing home didn’t really offer any evidence to support its fundamental obligation to its residents – to ensure that its residents are safe. The daughter cited to the decision in D’Elia v. Menorah Home and Hospital for Aged and Infirm, 51 AD3d 848 [2 Dept. 2008], where the court held that “a medical facility has a general duty to exercise reasonable care and diligence in safeguarding a patient, based in part on the capacity of the patient to provide for his or her own safety.” It was argued that there were issues of fact as to whether the nursing home failed to implement available precautions to protect the resident from the foreseeable risk of not being properly secured in the ambulette.

As to the expert witness’ affidavit, it was alleged to only contain opinions from the engineer as to what was “clear” to him as to the duties of the parties, without relying on anything more. Substantial New York case holds for the proposition that an expert cannot offer mere opinions as to legal obligations. See, Russo v. Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, LLP, 301 AD2d 63, 69 [1 Dept. 2002].[1]

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Endnote

[1] “expert witnesses should not * * * offer opinion as to the legal obligations of parties * * *; that is an issue to be determined by the trial court. Expert opinion as to a legal conclusion is impermissible” (Colon v Rent-A-Center, Inc., 276 AD2d 58, 61). An expert may not be utilized to offer opinion as to the legal standards which he believes should have governed a party’s conduct.”

Richard A. Klass, Esq.
Your Court Street Lawyer

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Extension of time to respond to discovery demands

Posted on February 20, 2023 by Richard Klass

C Castle Group Corp. v Herzfeld & Rubin, P.C., 211 AD3d 1006, 1007 [2d Dept 2022] serves as a good reminder to ask for an extension of time to respond to discovery demands, such as a notice to admit in that case, when appropriate. The court held:

CPLR 2004 provides: “Except where otherwise expressly prescribed by law, the court may extend the time fixed by any statute, rule or order for doing any act, upon such terms as may be just and upon good cause shown, whether the application for extension is made before or after the expiration of the time fixed.” “In exercising its discretion to grant an extension of time pursuant to CPLR 2004, a court may consider such factors as the length of the delay, the reason or excuse for the delay, and any prejudice to the opponent of the motion” (Ibrahim v. Nablus Sweets Corp., 161 A.D.3d 961, 963, 77 N.Y.S.3d 439 [internal quotation marks omitted]; see Tewari v. Tsoutsouras, 75 N.Y.2d 1, 11–12, 550 N.Y.S.2d 572, 549 N.E.2d 1143).

Similarly, to be relieved of the adverse impact of the conditional order, a party must demonstrate “(1) a reasonable excuse for the failure to produce the requested [discovery] and (2) the existence of a meritorious claim or defense” (Gibbs v. St. Barnabas Hosp., 16 N.Y.3d 74, 80, 917 N.Y.S.2d 68, 942 N.E.2d 277; see Fortino v. Wheels, Inc., 204 A.D.3d 756, 757–758, 166 N.Y.S.3d 660). “The determination of what constitutes a reasonable excuse lies within the Supreme Court’s discretion” (Burro v. Kang, 167 A.D.3d 694, 698, 90 N.Y.S.3d 298 [internal quotation marks omitted]). “The court has discretion to accept law office failure as a reasonable excuse (see CPLR 2005) where that claim is supported by a detailed and credible explanation of the default at issue” (Scholem v. Acadia Realty L.P., 144 A.D.3d 1012, 1013, 42 N.Y.S.3d 214).

Richard A. Klass, Esq.
Your Court Street Lawyer

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Harm caused by professional negligence

Posted on February 2, 2023 by Richard Klass

In Betz v Blatt, 211 AD3d 1004 [2d Dept 2022], the court held:

Although an attorney representing the executor of an estate, generally, is not liable to the beneficiaries of the estate (see Kramer v. Belfi, 106 A.D.2d 615, 616, 482 N.Y.S.2d 898), as the attorney does not represent the estate itself (see Betz v. Blatt, 116 A.D.3d at 816, 984 N.Y.S.2d 378; Matter of Hof, 102 A.D.2d 591, 593, 478 N.Y.S.2d 39), when fraud, collusion, malicious acts, or other special circumstances exist, an attorney may be liable to those third parties, even though not in privity with them, for harm caused by professional negligence (see Davis v. Farrell Fritz, P.C., 201 A.D.3d 869, 871, 163 N.Y.S.3d 82; Betz v. Blatt, 160 A.D.3d at 698, 74 N.Y.S.3d 75).

Richard A. Klass, Esq.
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