From Casetext: Smarter Legal Research

Jennings v. Raso

Appellate Division of the Supreme Court of New York, Second Department
Jun 4, 1998
251 A.D.2d 380 (N.Y. App. Div. 1998)

Opinion

June 4, 1998

Appeal from the Supreme Court, Rockland County (Sherwood, J.).


Ordered that the order is affirmed, with costs.

The factual allegations in the plaintiff's complaint are sufficient to state a cause of action for legal malpractice (see, CPLR 3211 [a] [7]; Guggenheimer v. Ginzberg, 43 N.Y.2d 268, 275). The complaint alleges that the plaintiff consulted with the defendant concerning her legal rights with respect to personal injuries that she sustained on September 23, 1988, in a bar when an employee of the bar, Mike Picozzi, harassed, assaulted, and battered her without justification. The plaintiff asserts that the defendant was negligent in failing to commence an action against the bar and, although a negligence action was commenced against Picozzi, in failing to assert a cause of action for assault and battery against him before the expiration of the applicable Statute of Limitations. The complaint further alleges that the plaintiff incurred damages as a result of the defendant's failure to timely commence these actions or causes of action. Contrary to the defendant's contention, the facts in the complaint make out a prima facie case of negligence against the bar (see, Pratt v. Ocean Med. Care, 236 A.D.2d 380; Rhames v. Supermarkets Gen. Corp., 230 A.D.2d 780; Kirkman v. Astoria Gen. Hosp., 204 A.D.2d 401).

The retainer agreement submitted by the defendant in support of that branch of his motion which was to dismiss pursuant to CPLR 3211 (a) (1) does not support the defendant's contention that the plaintiff had agreed not to commence a lawsuit against the bar. In any event, the retainer agreement would not limit the defendant's duty in representing his client's interest (see, Greenwich v. Markhoff, 234 A.D.2d 112). Moreover, the claim is viable despite a judgment of default obtained against Picozzi in the negligence action, since the plaintiff has yet to recover on that judgment and it is alleged that the defendant's negligence has prevented the plaintiff from obtaining a judgment that may be collectible.

Bracken, J. P., Copertino, Santucci, Florio and McGinity, JJ., concur.


Summaries of

Jennings v. Raso

Appellate Division of the Supreme Court of New York, Second Department
Jun 4, 1998
251 A.D.2d 380 (N.Y. App. Div. 1998)
Case details for

Jennings v. Raso

Case Details

Full title:MARIE JENNINGS, Respondent, v. FRANK J. RASO, Appellant

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Jun 4, 1998

Citations

251 A.D.2d 380 (N.Y. App. Div. 1998)
674 N.Y.S.2d 108

Citing Cases

Hoffman v. Colleluori

Accepting all the facts alleged in the complaint as true, the allegations are sufficient to state a cause of…