January 28, 2008
The New York Appellate Division for the Second Judicial Department affirmed an order of the Supreme Court denying a motion to vacate dismissal of a legal malpractice claim. The plaintiff failed to establish a meritorious cause of action. Further, the plaintiff failed to file a note of issue within 90 days and had been warned that the case would be deemed dismissed for failure to comply. Reason for the failure to comply? The court states:
"With regard to reasonable excuse, the plaintiff's counsel offered nothing more than that 'the failure to timely file the Note of Issue was due to law office failure.' However, 'a conclusory and unsubstantiated claim of law office failure will not rise to the level of a reasonable excuse' ...Thus, the plaintiff failed to establish a reasonable excuse for his failure to comply with the certification order. "
When a lawyer is retained to sue another lawyer for malpractice, it is a good idea to carefully follow the rules and procedures that apply to the claim. (Mike Frisch)
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