Davis v. Klein

• Citation: 637 N.Y.S.2d 137,224 A.D.2d 196
• Parties: Robert L. DAVIS, et al., Plaintiffs-Appellants, v. Naomi KLEIN, etc., et al., Defendants-Respondents.
• Decision Date: 06 February 1996
• Court: New York Supreme Court Appellate Division

Page 137

637 N.Y.S.2d 137

224 A.D.2d 196

Robert L. DAVIS, et al., Plaintiffs-Appellants, v. Naomi KLEIN, etc., et al., Defendants-Respondents.

Supreme Court, Appellate Division,

First Department.

Feb. 6, 1996.

J.A. Collins, for plaintiffs-appellants.

S.F. Willig, for defendants-respondents.

Before MURPHY, P.J., and SULLIVAN, ROSENBERGER, ROSS and TOM, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Richard Lowe III, J.), entered on or about September 12, 1994, which granted defendants' motion for summary judgment dismissing the complaint, affirmed, without costs.

Where plaintiffs failed to demonstrate a viable claim in the underlying action against the City of New York, they failed to satisfy the requisite "but for" element in this legal malpractice action against defendants (Geraci v. Bauman, Greene & Kunkis, 171 A.D.2d 454, 455, 567 N.Y.S.2d 36, app. dismissed 78 N.Y.2d 907, 573 N.Y.S.2d 468, 577 N.E.2d 1060).

All concur except SULLIVAN, J., who dissents in a memorandum as follows:

SULLIVAN, Justice (dissenting).

On January 30, 1987, plaintiff Robert L. Davis was allegedly injured while in the employ of a contractor and engaged in construction of a series of seepage wells on property owned by the City of New York. Thereafter, he met with Lawrence A. Klein, an attorney, who, it is undisputed, agreed to represent Davis with respect to his rights under the Workers' Compensation Law. Approximately one year after Davis met with Klein, the latter arranged for him to meet with another attorney, Richard Cardali, for the purpose of commencing a lawsuit against the City, but by that time Davis's claim against the City was time- barred. ¹ This act

ion against the representative of Klein's estate and Lawrence A. Klein, P.C., for legal malpractice followed.

Defendants moved for summary judgment dismissing the complaint, claiming that Klein was retained for the sole purpose of prosecuting a workers' compensation claim and not to commence a lawsuit against the City. In addition, defendants asserted that even if it could be argued that Klein was retained to commence an action against the City, "the [c]omplaint does not set forth grounds for a claim against the City." The IAS court, concluding that plaintiffs failed to demonstrate by evidentiary proof in admissible form that but for the alleged negligence of the attorneys plaintiffs could have recovered against the City, granted summary judgment and dismissed the complaint.

Since, in my view, defendants have failed to establish that they are entitled to summary judgment, I would reverse and deny the motion. Relying on a "Notice of Retainer and Appearance" executed on March 3, 1987, which stated that plaintiff had retained Klein to represent him "in all proceedings concerning [his] claim under the ... Workers Compensation Law," defendants assert that Klein's representation was limited to the workers' compensation claim and that there is no admissible evidence that Klein agreed to represent plaintiff in connection with any other matter. The notice of retainer, a printed form which an attorney is required to file in order to represent a claimant before the Workers' Compensation Board (12 NYCRR 300.17[a], nowhere states that Klein's representation is limited to pursuing workers' compensation benefits and there is no basis in this record for according it such a limited construction.

In any event, even if the retention expressly limited the legal representation to the workers' compensation claim, Klein would not necessarily be relieved of any duty to plaintiff with respect to a potential personal injury action he might have against the City. An attorney "may still have a duty to alert the client to legal problems which are reasonably apparent, even though they fall outside the scope of the retention.... The attorney need not represent the client on such matters. The client, however, should be informed of the limitations of the attorney's representation and of the possible need for other counsel." (2 R. Mallen & J. Smith, Legal Malpractice [3d Ed.1989], sec. 19.5, pp. 161-162; see also, Smith v. Becnel, La.App., 396 So.2d 444, and Daugherty v. Runner, Ky.App., 581 S.W.2d 12, 17 ["An attorney cannot completely disregard matters coming to his attention which should reasonably put him on notice that his client may have legal problems or remedies that are not precisely or totally within the scope of the task being performed by the attorney."].) "The rationale is that, as between the lay client and the attorney, the latter is much more qualified to recognize and analyze the client's legal needs." (2 Mallen and Smith, Legal Malpractice, op. cit.) ...