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New York Appellate Court Rules on Trip and Fall in Manhattan Building


A woman claims she sustained personal Injuries including a fracture, when she tripped and fell in a building in Manhattan where she lived. The woman retained a law firm to commence a law suit against the woman’s landlord, the property owner. The law firm commenced the action by filing the summons and complaint, which were shortly thereafter served on the property owner. The personal injury action was eventually dismissed for failure to prosecute. A subsequent motion to restore the action was filed by the second law firm and was denied.

The woman thought her case was active and ongoing. A New York Injury Lawyer said that she contends that none of the attorneys contacted her or told her otherwise. In May 2008, her daughter became concerned about her mother’s personal injury case and filed a disciplinary complaint against the first law firm on her mother’s behalf. The letter refers to the law firm and states that the daughter had called them numerous times. She indicates in her complaint that the file has been with the firm since 1998. The daughter states further that she appeared in court with her mother four years ago and the Judge ordered medical records and the case was adjourned to another date which never came. No one has been in touch since. She further states that the last time she called she was told that the case was old and no one could locate the file.

Although the disciplinary complaint was issued against the first law firm, by a letter by the second law firm states that the first law firm had been dissolved in 2002. The answer states that the woman was the client of a particular attorney while he was with the first law firm but that he left the firm to start the second firm in July 2008 and then another law firm later on.

The attorney also states in his letter that the woman’s personal injury action was dismissed. A Long Island Personal Injury Lawyer said that after numerous attempts were made to proceed with an inquest, he was told that since certified medical records were unavailable then it became possible to hold an inquest and obtain judgment. According to the letter, the lawyer told the firm that he had notified the woman and her daughter about the situation and advised her to have herself examined by a doctor so the case can proceed for inquest.

The woman denies anyone ever told her there was a problem with her medical records being unavailable or that she needed to set up a doctor’s appointment or that the case was set down for inquest. According to her, it was only after the disciplinary complaint was dismissed that she first learned about, and obtained a copy of the order. A Westchester County Personal Injury Lawyer said that the order provides that the motion by the complainant to restore the stale action to the court’s inquest calendar even though no note of issue has ever been purchased is denied. The woman has not offered any explanation or excuse for her repeated defaults including her failure to file her note of issue pursuant to the Officer’s order. Failure serve the judicial support office for an assessment of damages by a referee pursuant to the court’s order and failure to file her Note of Issue pursuant to the court’s order ultimately resulted in the court’s dismissal of the complaint.

The woman’s present attorney states that the Affidavit of Merit she sign in February 2005 in support of the motion to restore was written in such a manner that it was deliberately vague so as to keep her in the dark about what was going on. The affidavit states that she has a meritorious cause claim against the property owner where she tripped and fell, but contains none of the other statements contained supporting affirmation. The woman contends that it is a proof that the law firm deliberately concealed the true facts from her, which is a violation of Judiciary Law.

The accused denies ever meeting with or talking to the woman. He contends he was never a member of the first law firm, but only an associate, fresh out of law school. He claims he left the first law firm on December 31, 2000, well before the alleged malpractice occurred and he had no further involvement with them after he left.

According to the accused, the woman’s claim accrued on July 11, 2003 when the case was dismissed for failure to prosecute and, therefore, the action is time barred because the woman failed to commence the action within three years. The accused also denies that the doctrine of continuous representation has any applicability to the facts of the case because there was no ongoing attorney/client relationship between him and the complainant, thus the statute of limitations was not tolled but expired.

The last two law firms are jointly represented and argue that the complainant’s malpractice claim accrued when the Judge denied the motion to restore the personal injury case and not when she learned about the Judge’s order, which was allegedly in September 2008 when the third law firm answered the disciplinary complaint. The accused deny any fraud on their part such that would toll the statute of limitations.

The law firms also deny that they maintained an ongoing attorney-client relationship with the woman or had any contact with her daughter about the personal injury action after the Judge’s order of dismissal. While the firms agree that the present counsel were once partners in the first law firm, the accused contend that the first law firm was disbanded in 2002 and, thereafter was substituted by the second law firm. Since the woman was a client of one the accused attorneys, he kept the woman’s legal action and it traveled with him to the new firm. After the woman’s counsel withdrew from the second firm in 2008, the firm changed its name. The accused argue that the second cause of action, alleging a violation of Judiciary Law should be dismissed because the woman has not pled it with the required specificity.

Another partner from the first law firm separately argues that although he was a named partner in the first and second law firm before the personal injury action was dismissed, he left that firm to form another in May 2002 and he had no contact with the woman after that. He contends that the woman has provided no facts to support any claims against him and, like the other accused attorneys, he contends that the statute of limitations for the case has expired and was not tolled. He also seeks the dismissal of the claim based upon Judiciary Law because there are no facts that he engaged in any deceitful acts.

The accused parties’ counsels collectively argue that the case is time barred because the woman’s claim accrued in 2005 and she did not commenced the action within three years from that date. The counsel from the previous law firms denies that there was any attorney-client relationship with the woman since the case was dismissed. He also denies any personal liability because he was a shareholder in a professional corporation and then a professional limited liability corporation. Furthermore, like the other accused, he denies any fraudulent or deceitful acts to support a viable claim under Judiciary Law.

We have the obligation to keep our premises safe for everyone, if other people do otherwise, some may get hurt. If you need an assistance with a trip and fall case, you may reach the offices of Stephen Bilkis and Associates. A slippery sidewalk may cause anyone to fall and a qualified lawyer may help you with your legal actions.

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