Pollicino v. ROEMER AND FEATHERSTONHAUGH, PC
| Decision Date | 16 November 2000 |
| Citation | 277 A.D.2d 666,716 N.Y.S.2d 416 |
| Court | New York Supreme Court — Appellate Division |
| Parties | SCOTT POLLICINO, Appellant,<BR>v.<BR>ROEMER AND FEATHERSTONHAUGH, P. C., et al., Respondents, et al., Defendants. |
Crew III, J. P.
On April 11, 1989, plaintiff retained the law firm of defendant Roemer and Featherstonhaugh, P. C. (hereinafter the law firm) to represent him in connection with a July 1, 1988 accident wherein he lost the sight in his right eye. Plaintiff's injury occurred when a New York City Transit Authority bus ran over a glass bottle in the road causing a shard of glass to strike him in the eye. In September 1989, the law firm successfully moved to serve a late notice of claim against the Transit Authority with a proposed notice of claim reflecting the accident date of July 1, 1988. The notice of claim actually served, however, incorrectly listed the accident date as June 30, 1988 and that error was repeated in the summons and complaint.
Approximately four weeks later, the law firm served an amended summons and complaint correctly alleging the accident date as July 1, 1988 but made no motion to similarly amend the notice of claim until December 1992, some three years after service of the erroneous notice of claim. In response to such motion, the Transit Authority cross-moved for an order dismissing the complaint on the ground that plaintiff's notice of claim was defective as a matter of law and plaintiff's action should be summarily dismissed as a result thereof. Supreme Court, Kings County (Hutcherson, J.) (hereinafter Kings County Supreme Court) denied the law firm's motion to amend the notice of claim and granted the Transit Authority's cross motion to dismiss the complaint on the ground that the 4½-year delay in seeking amendment of the notice of claim was prejudicial to the Transit Authority. The court also noted that if it had viewed the Transit Authority's motion as one for summary judgment, plaintiff's action would have been dismissed, regardless of the erroneous notice of claim, because plaintiff failed to establish that the Transit Authority had notice of the defect or condition causing his injuries.[*]
Plaintiff thereafter commenced the instant action against the law firm and its principals and employees alleging causes of action sounding in legal malpractice. Following joinder of issue, certain defendants moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. Supreme Court (Keegan, J.) granted defendants' motions on the ground that the decision by Kings County Supreme Court, holding that plaintiff's...
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...for a second year, this comment "was dicta and, as such, is not entitled to preclusive effect" ( Pollicino v. Roemer & Featherstonhaugh, 277 A.D.2d 666, 668, 716 N.Y.S.2d 416 [2000] ; see Matter of B.Z. Chiropractic, P.C. v. Allstate Ins. Co., 197 A.D.3d 144, 155, 152 N.Y.S.3d 46 [2021] ; S......
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...estoppel (see Jackson v. Board of Educ. of City of N.Y., 30 A.D.3d 57, 59–60, 812 N.Y.S.2d 91 ; Pollicino v. Roemer & Featherstonhaugh, 277 A.D.2d 666, 668, 716 N.Y.S.2d 416 ; Town of E. Hampton v. Omabuild USA No. 1, 215 A.D.2d at 750, 627 N.Y.S.2d 723 ), or law of the case (see Donahue v.......
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In re B.Z. Chiropractic, P.C.
... ... Jackson v Board of Educ. of City of N.Y. , 30 A.D.3d 57, ... 59-60; Pollicino v Roemer & Featherstonhaugh , ... 277 A.D.2d 666, 668; Town of E. Hampton v Omabuild USA ... ...
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...& Sheet Metal v. Facilities Dev. Corp., 115 A.D.2d 48, 51, 499 N.Y.S.2d 820 [1986] ; see e.g. Pollicino v. Roemer & Featherstonhaugh, 277 A.D.2d 666, 667–668, 716 N.Y.S.2d 416 [2000] ; Robbins v. Michigan Millers Mut. Ins. Co., 236 A.D.2d 769, 771, 653 N.Y.S.2d 975 [1997] ). On the contrary......