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The Plaintiff in this Case is a Lawyer


This is a legal malpractice action being heard in the Supreme Court in New York County. The plaintiff is a lawyer who has brought forth this action against his former law firm partner. There are three causes of action being considered in this case. The first is professional malpractice, the second is breach of contract, and the third cause of action is a breach of implied covenant of good faith and fair dealing.

The Westchester defendants have moved for an order to dismiss the complaint as time barred by the statute of limitations, as time barred by the doctrine of laches, and for failure to state a cause of action.

Case Background

The plaintiff started this legal malpractice action against the defendants based on alleged failure of the defendants to schedule a deposition of one of the plaintiff’s expert witnesses in connection with a products liability breast implant action that was pending in the United States District Court for the northern district of New York. The plaintiff in the case allegedly suffered from injuries as a result to the exposure from silicone gel from breast implants that ruptured and were made by Baxter Healthcare. The plaintiff retained the defendants as trial counsel to prosecute in this action.

The defendants filed a motion to dismiss the complaint and/or for a stay of the proceedings. In April of 2003, this court issued an opinion that stated the complaint was a nullity because the plaintiff’s counsel was based in New Jersey and did not have an office in New York and was therefore not authorized to file a complaint on behalf of the plaintiff.

Case Discussion and Decision

The defendants argue that the action should be dismissed because the statute of limitations for the malpractice claim has expired. They also argue that the instant action is time barred by the doctrine of laches.

The statute of limitations to recover on a claim of legal malpractice is three years. This is regardless of whether the theory is based in contract or tort. In this particular case the legal malpractice occurred on the 28th of September, 1999, when the defendant’s allegedly failed to produce the expert witness for the case.

The plaintiff brought forth the action in September 2002 because they were worried about the statute of limitations. The action was timely and therefor there is no legal basis to assert the statute of limitations in this case.

The defendants are now contending that because the 2002 action was dismissed as a nullity, the reasoning for the dismissal was paramount and therefore the action should be dismissed. However, the dismissal was a mere technical defect that could have been fixed by the plaintiff seeking counsel in New York or by the counsel of the plaintiff seeking pro hac vice admission.

The court had reviewed the facts that have been brought up in this case and has found that the plaintiff has failed to state a cause of action. For this reason, the defendant’s motion to dismiss the complaint is granted.

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